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.

9th Circuit Refuses To Reconsider Sexual Orientation Discrimination Ruling

Big news from the 9th U.S. Circuit Court of Appeals! The now fully staffed court has denied a sua ponte request to reconsider their important ruling in SmithKline Beecham. That case is the about juror discrimination where the 9th Circuit ruled that sexual orientation is not a valid characteristic for removing a potential juror, by declaring that sexual orientation is a suspect classification that requires heightened scrutiny. A majority of judges on the 26-member court agreed that an en banc hearing was not warranted, while the three most conservative members of the court signed on to a 10-page decision dissenting in the decision of the court. Neither of the parties in the underlying dispute had asked the court to review the question of what standard of review sexual orientation should receive, that was instigated by an anonymous member of the 9th Circuit. The fact that the decision is now final means that in order to discriminate on the basis of sexual orientation in the 9th Circuit's jurisdictional area, an exceedingly persuasive reason has to be given. As  Joe Jervis says, this will almost certainly lead to marriage equality in the states of the 9th Circuit which do not have it yet: Alaska, Arizona, Idaho, Montana and Nevada.

SCOTUS Blog also discusses the implications of the permanence of SmithKline:

 Of the twelve federal appeals courts to confront the issue, ten have taken the position that challenges to laws which allegedly discriminate on the basis of sexual orientation should be analyzed only by the least-demanding standard — that is, “rational basis” review.   Using that standard, at least some courts have upheld bans on same-sex marriage. 

[...] 

In the cases now awaiting Ninth Circuit review, state officials are attempting to defend same-sex marriage bans only in the Idaho case.  State officials in Oregon and Nevada have given up the defense of such bans, and Hawaii has moved on its own to allow such marriages.   Because the panel’s decision in the SmithKline decision is now binding in that circuit, in the wake of denial of en banc review, it sets the standard for judging the state bans throughout the geographic region included in the Ninth Circuit.

The other appellate court to decide sexual orientation should receive heightened scrutiny is the 2nd U.S. Circuit, which did so in their ruling which struck down the Defense of Marriage Act in Windsor v United States, a decision the Supreme Court upheld last year (but did not address the level of review question).

Idaho Gov. Asks 9th Circuit To Hear His Marriage Appeal En Banc

I guess Gov. C.L. "Butch" Otter (R-Idaho) apparently really wants to hear what Alex Kozinski thinks about gay marriage. He filed a motion in Iddho's appeal of the recent ruling  in Latta v Otter striking down its marriage law asking for an en banc panel of the 9th U.S. Circuit Court of Appeals hear the case instead of the customary 3-judge panel. The only reason I can think of is that he wants to enhance the conservativeness of the panel that hears his appeal by insuring that the very conservative Kozinski be on the panel of judges that decide this case.

The 9th Circuit is considered one of the most liberal federal appellate courts, and for the first time in a looong time it has its full 29-judge complement. This means that it is probably more likely than not that a 3-judge panel will include more liberals than conservatives; however an 11-judge en banc panel must include the chief judge and 10 others. In fact, it must be true that the probability of a conservative panel goes up with an en banc than a random 3-judge panel because Otter is assured that Kozinski (a conservative) must be on the panel. I guess someone on the judge's staff knows their probability and statistics!

There are currently 20 Democratic-appointed judges and only 9 Republican-appointed judges on the 9th Circuit.

In addition to an en banc panel, Gov. Otter also wants the appellate court to reconsider the question of whether sexual orientation should receive heightened scrutiny or not. Currently, sexual orientation does receive heightened scrutiny, which is one important reason why bans on marriage equality in the 9th circuit are likely to be struck down. However, even using a rational basis standard, judges reviewing the Oregon and Idaho laws have ruled them unconstitutional.

Federal judges are notoriously loath to allow litigants to skip steps so it seems unlikely the 9th circuit will accede to Otter's request.

Marriage Equality Back On In Arkansas, Off (For Now) In Idaho

Although judges have struck down the laws banning marriage equality in Idaho and Arkansas in the last week, the status of marriage equality in each jurisdiction is in different states of flux in these two states.

The 9th U.S. Circuit has issued a stay in the case of Latta v. Otter which will prevent the judge's order from going into effect on Friday until the 9th Circuit formally considers the request for a more permanent stay tha would last the duration of the period it takes to decide the appeal from the state of the ruling allowing marriage equality to go into effect in Idaho.

In Arkansas, same-sex couples have been able to get married since last Saturday but after the Arkansas State Supreme Court refused to issue a stay to stop those marriages but noted that the original order did not invalidate the state law which prohibited clerks from issuing marriage licenses to same-sex couples marriages had stopped in the state. The judge responded by issuing a new order today making it clear that any prohibition on issuing marriage licenses to same-sex couples is null and void, resulting in Arkansas's largest county (Pulaski) to resume issuing marriage licenses to same-sex couples.

Exciting times in deed!

Federal Judge Strikes Down Idaho's Ban On Marriage Equality!

Boo yah! Federal judicial magistrate Wagahoff Dale wrote a strongly worded decision eviscerating the state's reasons for denying the fundamental freedom to marry to same-sex couples who want to marry in Idaho and struck down the state's ban on marriage equality on Tuesday, refusing to issue a stay on his decision.

It must be noted that he is now joining a throng of judges who have looked at their jurisdictions marriage laws and been unable to come up with even a rational reason for denying the freedom to marry to same-sex couples. Just last Friday a state district court judge in Arkansas struck down that red state's bans on marriage equality. Yesterday, the 4th U.S. Circuit Court of Appeals heard oral arguments and looks likely to uphold a lower court ruling striking down Virginia's ban on marriage equality. Things are moving fast, folks!

Check out this excerpt from the end of the judge's decision in Latta v. Otter:

CONCLUSION
The Plaintiffs are entitled to extraordinary remedies because of their extraordinary injuries. Idaho's Marriage Laws withhold from them a profound and personal choice, one that most can take for granted. By doing so, Idaho's Marriage Laws deny same-sex couples the economic, practical, emotional, and spiritual benefits of marriage, relegating each couple to a stigmatized, second-class status. Plaintiffs suffer these injuries not because they are unqualified to marry, start a family, or grow old together, but because of who they are and whom they love. 

The Defendants offered no evidence that same-sex marriage would adversely affect opposite-sex marriages or the well-being of children. Without proof, the Defendants' justifications echo the unsubstantiated fears that could not prop up the anti-miscegenation laws and rigid gender roles of days long past. Then as now, it is the duty of the courts to apply the law to the facts in evidence. Here, the facts are clear and the law teaches that marriage is a fundamental right of all citizens, which neither tradition nor the majority can deny. 

The Fourteenth Amendment guarantees of due process and equal protection lie at the core of our constitutional system. While the Supreme Court has not expressly decided the issues of this case, it has over the decades marked the path that leads to today's decision. "[T]he history of our Constitution . . . is the story of the extension of constitutional rights and protections to people once ignored or excluded." United States v. Virginia, 518 U.S. 515, 557 (1996). Slow as the march toward equality may seem, it is never in vain. 

ORDER
... The Court hereby DECLARES that Idaho's Marriage Laws are unconstitutional because they violate Plaintiffs' rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. 

The Court PERMANENTLY ENJOINS the State of Idaho and its officers, employees, agents, and political subdivisions from enforcing Article III, § 28 of the Idaho Constitution; Idaho Code Sections 32-201 and 32-209; and any other laws or regulations to the extent they do not recognize same-sex marriages validly contracted outside Idaho or prohibit otherwise qualified same-sex couples from marrying in Idaho. This injunction shall take effect at 9:00 a.m. MDT on May 16, 2014. 

IT IS SO ORDERED.

Hat/tip to Freedom to Marry!

Lambda Legal Files Marriage Equality Lawsuit In Arizona!

Good news out of Arizona regarding LGBT equality! Lambda Legal has filed a lawsuit seeking to gain the right to marriage for same-sex couples in Arizona.

In the lawsuit, Lambda Legal, joined by pro bono co-counsel from Perkins Coie LLP, argues that the Arizona constitutional amendment and state statutes barring same-sex couples from marriage violates the Equal Protection Clause and the Due Process Clause of the U.S. Constitution.  

The lead plaintiffs, Nelda Majors, 75, and Karen Bailey, 74, of Scottsdale, have been together for more than 55 years, and together have raised two children, Karen’s great grand-nieces Marissa and Sharla, as their own daughters since the girls came into their home as toddlers. Marissa is now 15 and Sharla 21. 

“Karen and I have been together since 1957,” Majors said.  “We’re a committed, loving family, have raised two amazing girls together, have seen each other through thick and thin, in sickness and in health. After five decades together, we want to celebrate and affirm our deep love for each other as other couples do, before our friends and family, through marriage. We’re also getting up there in years. I want to know that, should anything happen to me, there would be no question about Karen being allowed to be with me at the hospital, and vice versa. If we were married, there would be no question and we both would feel more secure.” 

“Arizona’s ban on marriage for same-sex couples serves no legitimate state interest, brands these loving couples and their children as second-class citizens, and encourages private bias and discrimination,” Pizer said. “And because the State does not even offer a lesser status such as civil union or domestic partnership, these loving couples live every day with the uncertainty that their families and relationships lack even basic protections.”

The name of the lawsuit is Majors v. Horne. As I have said, repeatedly, the fact that in the 9th U.S. Circuit (Washington, California, Oregon, Arizona, Idaho, Nevada and Montana) laws in these states that classify based on sexual orientation must receive heightened scrutiny that they are not violating the equal protection rights of LGBT people makes it very likely that bans on same-sex marriage in these states are toast. The deadline to appeal the decision that declared sexual orientation subject to heightened scrutiny passed last Friday, and this lawsuit I'm sure is a consequence of that decision.