Yesterday, a three-judge panel at the Ninth Circuit heard marriage equality cases from Idaho, Hawaii, Nevada.
Equality on Trial reports:
Much discussion was made of the proper level of constitutional scrutiny which should be applied to the laws. Judge Berzon suggested that marriage equality proponents would be in trouble if the court resorted to traditional rational basis scrutiny, but all three judges entertained arguments that the Ninth Circuit’s earlier decision in SmithKline—which ruled that sexual orientation discrimination merits heightened scrutiny—requires a similar holding in these cases. Judge Berzon also expressed an interest in a possible ruling on sex discrimination grounds, which most other courts have been hesitant to do.
In short, it seems quite likely that the judges were unimpressed by [Attorney Monte] Stewart’s arguments and will invalidate the state marriage bans on heightened scrutiny. The real question at this point is whether the case will hinge only on sexual orientation discrimination claims or will instead include sex discrimination claims. Another question is whether the judges’ opinion will invalidate the laws as impermissible restrictions on same-sex couples’ fundamental right to marry, or if they will simply rely on equal protection to make their decision.
The Washington Blade points out that this case is unique, in that the Ninth Circuit has already held that laws dealing with gays and lesbians should be subject to heightened scrutiny in an earlier case:
The Ninth Circuit is uniques among other circuit that have heard marriage cases following the DOMA decision because the jurisdiction — along with the First Circuit — has precedent for subjecting laws related to sexual orientation to heightened scrutiny, or a greater assumption they’re unconstitutional. The precedent came about in June as a result of the decision in SmithKline v. Abbott, a case involving a gay juror who was excluded from deciding a case because of his sexual orientation. [Judge] Reinhardt — who also wrote the Ninth Circuit decision against California’s Proposition 8 — wrote the SmithKline decisio and was joined by Berzon. Meanwhile, Gould delivered a favorable ruling for gay people in the Ninth Circuit decision of Witt v. Air Force, which challenged “Don’t Ask, Don’t Tell.”
SDGLN says the defense used the same tired old arguments:
It was clear that Stewart had no real evidence to show the harm that is caused by gay marriage. All he could do is predict horrible things will happen if Idaho has gay marriage, such as the state will see a rise in “dad-less” or “mom-less” families. When Judge Berzon challenged him to cite evidence, Stewart fumbled through that question, citing numbers that showed that only about 58% of the state’s children came from a mom-dad family unit. Judge Gould grew weary of the “child’s bonding right” argument, and asked Stewart where that “bonding right” came from since it was not in the Bill of Rights. Stewart then admitted that he made up the phrase to collectively describe his argument that a child does best when it has a mother and a father who are married. Judge Reinholdt said if the state was so worried about marriage, shouldn’t it ban divorce? Stewart then launched into a diatribe against no-fault divorce, again veering far off the issue at hand. Judge Berzon summed it up best when she told Stewart that the “train has already left the station” on marriage being redefined, using historical milestones to rebut his argument.
If you want to watch for yourself, here’s the video stream from the court:
It’s about 2 hours and 33 minutes long.
These decisions seem to becoming faster and faster these days – hopefully we won’t have to wait too long for the results of this one.
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