Tuesday, October 07, 2014

9th U.S. Circuit Strikes Down Marriage Bans In Nevada and Idaho, Citing Heightened Scrutiny

Well, that was fast! Just one day after the Supreme Court denied appeals from the 4th, 7th and 10th circuits, essentially opening up marriage equality to 5 states immediately and to 6 more eventually, the 9th U.S. Circuit Court of Appeals chimed in and immediately struck down same-sex marriage bans in Nevada and Idaho, and almost certainly leading to the addition of three more states in short order. That would bring the total number of states with marriage equality up from 19 last week and the 30 as a result of yesterday's actions to a stunning total of 35 when the dust rom all the legal skirmishes settles.

The 9th U.S. Circuit Court of Appeals ruled in Latta v. Otter and Sevcik v. Sandoval that the heightened scrutiny that laws that discriminate on the basis of sexual orientation must survive to be deemed constitutional leads to the conclusion that state bans on same-sex marriage are null and void under interpretations of equal protection under the federal constitution.

Equality on Trial highlights this excerpt from today's ruling:
We hold that the Idaho and Nevada laws at issue violate the Equal Protection Clause of the Fourteenth Amendment because they deny lesbians and gays who wish to marry persons of the same sex a right they afford to individuals who wish to marry persons of the opposite sex, and do not satisfy the heightened scrutiny standard we adopted in SmithKline.
Today's ruling from the 9th Circuit was the fourth appellate court to rule in favor of marriage equality this year in the last three months and was a unanimous 3-0. Somewhat surprisingly, a mandate from the court has already been issued, putting it into effect, which should allow couples to immediately get married in Nevada and Idaho if no appeals are filed. The Governor of Nevada has agreed not to appeal so marriage equality has gone into effect in the Silver State. Couples will be able to get marriage licenses in Las Vegas starting at 2pm on Wednesday.

An interesting feature of the 9th Circuit's ruling is that although it was unanimous two of the judges wrote separately to say that they would have struck down the marriage bans on other grounds. Judge Stephen Reinhard said that he would have used the Due Process Clause to say that the bans violate the fundamental right to marry of same-sex couples and Judge Marsha Berzon wrote to sat that she would have used the idea that bans on marriage equality are based in unconstitutional sex discrimination. Sadly, neither judge signed on to the other's separate ruling so neither of these ideas have the force of law in the 9th Circuit, although I would agree with BOTH of them.

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