Gay Marriage Bans in Idaho & Nev. Struck Down

     SAN FRANCISCO (CN) – Voter-approved bans on same-sex marriage in Nevada and Idaho are unconstitutional, the 9th Circuit ruled Tuesday.
     The ruling comes not quite a month after the three-judge panel heard oral arguments in the challenges of gay marriage bans in those two states, where voters amended their state constitutions to define marriage as being between a male and female only.     
     The bulk of that nearly two-and-a-half-hour session saw Judges Stephen Reinhardt, Marsha Berzon and Ronald Gould spar with Monte Stewart, an attorney for the Coalition for the Protection of Marriage. Stewart presented Idaho’s entire case and also intervened for Nevada after its governor, Republican Brian Sandoval, said earlier this year the state would no longer fight to keep its ban.
     But Stewart’s argument that same-sex marriage hurts children most of all failed to move the judges who said in a 34-page opinion issued Tuesday that the Coalition for the Protection of Marriage doesn’t even believe that federal courts have jurisdiction to hear these cases based on the Supreme Court’s dismissal of a 1971 marriage equality case “for want of a substantial federal question.”
     A number of subsequent decisions by the nation’s high court, including Lawrence v. Texas, Romer v. Evans and last year’s landmark United States v. Windsor – which unraveled vast portions of the federal Defense of Marriage Act – have paved the way to consider “not only substantial but pressing federal questions,” the opinion stated.
     Writing for the court, Reinhardt rejected arguments that Idaho and Nevada voters intended to protect children – and solidify the institution of marriage – by denying same-sex couples the right to marry.
     “If defendants really wished to ensure that as many children as possible had married parents, they would do well to rescind the right to no-fault divorce, or to divorce altogether. Neither has done so,” Reinhardt wrote. “Such reforms might face constitutional difficulties of their own, but they would at least further the states’ asserted interest in solidifying marriage. Likewise, if Idaho and Nevada want to increase the percentage of children being raised by their two biological parents, they might do better to ban assisted reproduction using donor sperm or eggs, gestational surrogacy, and adoption, by both opposite-sex and same-sex couples, as well as by single people. Neither state does.”
     Reinhardt continued: “In extending the benefits of marriage only to people who have the capacity to procreate, while denying those same benefits to people who already have children, Idaho and Nevada materially harm and demean same-sex couples and their children. Denying children resources and stigmatizing their families on this basis is illogical and unjust. It is counterproductive, and it is unconstitutional.”
     The panel refused to address concerns that religious liberties might be infringed if same-sex marriages were allowed, since “these questions are not before us.”
     “Avoiding the enforcement of anti-discrimination laws that ‘serve compelling state interests of the highest order’ cannot justify perpetuation of an otherwise unconstitutionally discriminatory marriage regime,” Reinhardt wrote.
     In a concurring opinion, Berzon said that same-sex marriage bans are also unconstitutional because they amount to gender discrimination.
     “Idaho and Nevada’s same-sex marriage prohibitions facially classify on the basis of sex,” Berzon wrote. “Only women may marry men, and only men may marry women. Susan Latta may not marry her partner Traci Ehlers for the sole reason that Latta is a woman; Latta could marry Ehlers if Latta were a man. Theodore Small may not marry his partner Antioco Carillo for the sole reason that Small is a man; Small could marry Carillo if Small were a woman. But for their gender, plaintiffs would be able to marry the partners of their choice. Their rights under the states’ bans on same-sex marriage are wholly determined by their sex.”
     Latta and Ehler are two of the eight Idaho plaintiffs, while Small and Carillo belong to the 16-member Nevada group.
     Berzon continued: “A law that facially dictates that a man may do ‘X’ while a woman may not or vice versa constitutes, without more, a gender classification.”
     Idaho and the Coalition for the Protection of Marriage can seek an en banc rehearing of the case if the issue is considered “exceptionally important.”
     Monday’s refusal by the U.S. Supreme Court to take up the same-sex marriage bans again effectively legalized marriage for couples in Indiana, Oklahoma, Utah, Wisconsin and Virginia.
     And on Tuesday, Colorado gave the green light for its counties to begin issuing marriage licenses to same-sex couples immediately.

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