Gay marriage: Ninth Circuit takes up same-sex marriage bans in three states

Three statewide bans on gay marriage will come under federal scrutiny Monday during an appellate hearing in San Francisco.

The Ninth Circuit Court of Appeals is scheduled hear arguments regarding the legitimacy of gay marriage bans in Nevada, Hawaii, and Idaho. Federal judges have previously upheld bans in Nevada and Hawaii, though both states have taken other steps to reverse those decisions. Idaho’s ban was struck down by a federal judge in May, a decision that Idaho Gov. C.L. "Butch" Otter (R) has opposed.

Judges Stephen Reinhardt, Marsha Berzon, and Ronald Gould, all Democrats, have been randomly selected to sit on the three-judge appellate panel. Judge Reinhardt famously struck down California’s controversial gay marriage ban in 2012. In January, Reinhardt and Judge Berzon ruled together that sexual orientation could not be used as a basis for excluding citizens from sitting on a jury.

The most hotly contested of the three cases comes from Idaho, where voters elected to institute a statewide ban on same-sex marriage in 2006. US District Magistrate Judge Candy Dale struck down that ban on May 13, writing in her ruling that the state’s marriage laws relegated gay couples to a “stigmatized, second-class status.” Idaho Governor Otter vowed to take the issue to America’s highest court.

“In 2006, the people of Idaho exercised their fundamental right, reaffirming that marriage is the union of a man and a woman,” Otter said in a statement following Judge Dale’s ruling. “Today’s decision, while disappointing, is a small setback in a long-term battle that will end at the US Supreme Court.”

Voters in Nevada approved a constitutional amendment that prohibited same-sex marriages in 2002. However, in May 2013, the Nevada Legislature initiated a multiyear process that could lead to the repeal of that ban. Nevada law dictates that two legislatures must approve such a measure, followed by voter approval. Thus the soonest the issue could hit ballot boxes would be November 2016.

A federal ruling against the ban could render the need for legislative and voter approval moot. Nevada Gov. Brian Sandoval (R) and Attorney General Catherine Cortez Masto (D) announced in February that they would not defend the ban in the hearing Monday.

"After thoughtful review and analysis, the state has determined that its arguments grounded upon equal protection and due process are no longer sustainable," Ms. Masto said in a statement.

The Coalition for the Protection of Marriage will instead present arguments in defense of the ban.

“More than a decade ago, Nevadans engaged in a large public debate about marriage – what it is and what it ought to be – and resolved that debate through their free, open, democratic process,” the coalition wrote in a court filing.

The case in Hawaii may be the simplest to resolve. While a ban remains on the books, the state legislators passed a law legalizing same-sex marriage in December. Opponents of the ban worry that it could be used in future cases to nullify the legalization and are seeking a formal negation from the appellate court.

Same-sex marriage is currently legal in 19 states and the District of Columbia. In the year since the US Supreme Court struck down a portion of the Defense of Marriage Act, which restricted partner benefits to heterosexual couples, 30 state and federal courts have ruled against gay marriage bans.

• This report includes material from Reuters and the Associated Press.