Ninth Circuit ruling adds five more states where gay marriage will be legal

The day after the Supreme Court declined to take up same-sex marriage cases, effectively legalizing it in 11 states, the Ninth Circuit Court of Appeals struck down bans in Idaho and Nevada. Gay marriage is now, or soon will be, legal in 35 states.

A federal appeals court in San Francisco on Tuesday struck down bans on same-sex marriages in Idaho and Nevada, thus establishing a legal precedent that will likely pave the way for same-sex marriages throughout the entire nine-state judicial circuit.

The three-judge panel of the Ninth US Circuit Court of Appeals ruled unanimously that the state bans in Idaho and Nevada violated constitutional protections because they treated gay men and lesbians differently than opposite-sex couples. 

The appeals court action comes a day after the US Supreme Court declined to take up same-sex marriage cases from three other federal appeals courts. That opened the way for same-sex marriages in 11 additional states. 

If left unchallenged, the Ninth Circuit’s new precedent will bring an additional five states into the same-sex marriage camp, boosting the total number of states on track to recognize such marriages to 35. (In addition to Idaho and Nevada, Montana, Alaska, and Arizona also would be bound by the Ninth Circuit decision.) California, Washington, Oregon, and Hawaii already have legalized gay marriage.

By way of comparison, only two days ago that number was 19 states, plus the District of Columbia. 

“Over the past year, court after court – now including federal appellate courts in every region of the country – have recognized that the Constitution protects the equal dignity and full citizenship of same-sex couples,” said Shannon Minter, legal director of the National Center for Lesbian Rights. “Today’s decision reaffirms that fundamental principle for residents of much of the Western US,” she said.

In ruling for same-sex couples challenging the bans in Idaho and Nevada, the Ninth Circuit judges said the state bans could not satisfy strict judicial scrutiny that helps protect minority members of society from discrimination. 

“Idaho and Nevada’s marriage laws, by preventing same-sex couples from marrying and refusing to recognize same-sex marriages celebrated elsewhere, impose profound legal, financial, social, and psychic harms on numerous citizens of those states,” Judge Stephen Reinhardt wrote for the court.

“These harms are not inflicted on opposite-sex couples, who may, if they wish, enjoy the rights and assume the responsibilities of marriage,” he wrote.

“Laws that treat people differently based on sexual orientation are unconstitutional unless a legitimate purpose overcomes the injury inflicted by the law on lesbians and gays and their families,” Judge Reinhardt said. 

The judge said the states’ justifications for favoring the traditional definition of marriage as a union of one man and one woman were based on “speculation and conclusory assertions.”

He said lawyers for Nevada and Idaho had failed to demonstrate that the bans furthered “any legitimate purpose.”

Instead, he said, the bans violated the Constitution’s equal protection clause by “unjustifiably discriminating on the basis of sexual orientation.”

The 34-page decision affirmed a lower court decision invalidating the Idaho ban on same-sex marriage and it reversed a lower court decision upholding the ban in Nevada.

In addition to the majority opinion, Judge Marsha Berzon also wrote a 40-page concurrence. She said she would also invalidate the states' same-sex marriage bans because they amount to illegal classifications on the basis of gender. 

Reinhardt wrote a separate concurrence to his own opinion to emphasize that he also would have held that the state bans violated a fundamental right to marry without regard to sexual orientation.

Reinhardt concluded his concurrence by urging full acceptance of gay men and lesbians.

“We, as judges, deal so often with laws that confine and constrain. Yet our core legal instrument comprehends the rights of all people, regardless of sexual orientation, to love and to marry the individuals they choose,” he wrote.

“It demands not merely tolerating; when a state is in the business of marriage, it must affirm the love and commitment of same-sex couples in equal measure,” he wrote. “Recognizing that right dignifies them; in so doing, we dignify the Constitution.”