SAN FRANCISCO (CN) - As the 9th Circuit heard arguments on the gay-marriage bans in Nevada, Idaho and Hawaii, the consensus of all sides Monday was that the issue is headed for another Supreme Court showdown.
The challenges of statewide bans in Nevada and Idaho are the same as those happening throughout the United States. In both states, voters approved amendments to their state constitutions that define marriage as being between a male and a female only.
Hawaii passed a similar ban in 1998 but became the 15th U.S. state to recognize same-sex marriage through a contentious legislative action in late 2013.
A three-judge panel of the 9th Circuit spent the bulk of the nearly two-and-a-half-hour session sparring 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.
From the get-go, Judges Stephen Reinhardt, Marsha Berzon and Ronald Gould hammered Stewart over his argument that "genderless" marriages weaken "a child's bonding right."
"Idaho has good reason to preserve man-woman marriage," Stewart said. "The man-woman meaning at the core of the institution generates and sustains a child's bonding right. We have an imperfect crystal ball on these issues, but Idaho sends the historically powerful message to gendered relationships to create an enduring stable bond for the child you bring into this world."
Stewart touted Idaho's record for having a high number of intact families, and said that "genderless marriage undermines that message and those figures."
"This train has left the station," Berzon retorted. "The core of heterosexual marriage has already changed in American society."
"Same-sex couples have the right to fulfill their lives as human beings," Reinhardt weighed in. "What about divorce? Does Idaho ban divorce? Doesn't that do more damage to the ideal Idaho professes?"
Stewart acknowledged that "Idaho, to its growing regret, got on board the no-fault divorce bandwagon." The state also recognizes that divorce ruins the permanence message to families, he added.
Reinhardt pointed out: "Not hard enough to change the rules on divorce,".
In abject opposition to his argument for intact families, Stewart conceded that Idaho also sees "the painful end of the stick" - that the prohibition of same-sex marriage also keeps the children of those couples from having married parents. He said dropping the ban would be more harmful to Idaho children than divorce has been.
Though the majority in last year's U.S. v Windsor and Perry v. Schwarzenegger cases at the U.S. Supreme Court cited studies showing no difference between children of same-sex and opposite-sex parents, Stewart said: "We think the effects would be much worse."
He added that "everyone who loves children, including Idaho," hopes that the studies prove correct.
Deborah Ferguson, a Boise attorney representing the four same-sex couples who successfully got a lower court to overturn Idaho's ban, called Idaho's law "the most sweeping and draconian same-sex marriage ban in the 9th Circuit that exists not to further a compelling or legitimate goal but simply to treat them unequally."
Taking up the issue of children, Ferguson argued that the ban harms children because it pushes them outside the bounds of society. Reinhardt then pressed her as to the state's emphasis on child bonding and what effect it has on children.
"Same-sex and opposite-sex marriages are not different regimes that would change things in the way that Idaho suggests," Ferguson said. "Idaho's law does not even reference 'for the children.'"
On redirect, Stewart again touted Idaho's crystal ball to the future.
"Our crystal ball is probably better than plaintiffs," Stewart said. "Our crystal ball is even better than this court's, because it's based on the common sense of the majority of its people."
"There were crystal balls all over Loving v. Virginia too," Berzon scoffed, noting the landmark civil rights decision that invalidated interracial marriage bans. "There were people who thought the world was going to go down because of children of mixed race. It doesn't sound very legitimate to us now, but they thought so then."
Stewart again brought up a child's bonding right while intervening for Nevada, and immediately began sparring with Berzon again.
"Gay couples adopt children, so you'll either have fewer adoptive parents or discredited adoptive parents," Berzon said. "What about them? You allow them to adopt but they're what, second-rate families?"
"We do not readily accept that rhetoric," Stewart answered.
"But you do! That's the whole point of your rhetoric: that they're second-rate families. You're sending a message that these are less-desirable families," Berzon said.
"That message was engrafted by genderless marriage advocates," Stewart said. "The core of our message, for Nevada, is, if you're going to create a child and bring it into this life, do it in a stable and committed relationship known as marriage so the child will have the bonding right."
"Then they ought to be allowed to marry, and then they'll be in a committed marriage," Reinhardt countered.
For Hawaii, the only real issue is whether the court should dismiss the case as moot since the Legislature already legalized same-sex marriage - or grant a stay in the case while man-woman marriage advocates seek to overturn the statute.
While the state advocated for mootness, attorney Ken Connelly for Hawaii Family Forum said that premature dismissal "risks harming the court and the public interest."
In the end, Reinhardt and Berzon had the last word.
"It's all going to the Supreme Court anyway," Berzon said.
"And it will decide whatever it's going to decide," Reinhardt added.
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