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Analysis of the Ninth Circuit Hearing for Idaho, Nevada and Hawaii

Friday, September 12th, 2014

Ninth Circuit, San Francisco - Apple MaosA soft-spoken attorney representing Idaho started his state’s anti-marriage equality argument by suggesting that allowing gays to marry violates the “bonding right” of children that they will be raised by their biological mothers and fathers. It took Judge Marsha Berzon just 15 seconds to ask her first question: “What is that word you’re using before ‘right'”? Judge Berzon can hear just fine; it’s just that she had never heard anyone make such a ridiculous claim before today. The rest of the hearing followed similarly.

Judge Stephen Reinhardt, a Carter-appointee and liberal leader of the appellate courts, was joined by Judge Berzon, a sharp-minded progressive appointed by President Clinton, and Judge Robert Gould, another Clinton appointee, in a nearly two-hour long interrogation of attorneys from Idaho and Nevada that may not have been as bombastic as Judge Posner’s treatment of attorneys from Wisconsin and Indiana in the Seventh Circuit, a hearing which resulted in a marvelous unanimous victory (“Go figure!”), but was every bit as damaging to the forces opposed to marriage equality.

It also brought marriage equality full circle. Judge Reinhardt was the judge that wrote the first decision from a federal appellate court on marriage equality, affirming District Judge Vaughn Walker’s pioneering rejection of California’s Prop 8. We all know how that case turned out.

Authored By Ari Ezra Waldman – See the Full Story at

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Ninth Circuit Panel Hears Marriage Equality Cases from Idaho, Hawaii, and Nevada

Tuesday, September 9th, 2014

Ninth Circuit, San Francisco - Apple MaosYesterday, 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.

Authored By – See the Full Story at

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Ninth Circuit to Hear Marriage Equality Cases from Hawaii, Idaho, and Nevada Today

Monday, September 8th, 2014

Ninth Circuit, San Francisco - Apple MaosToday is the day for the next big marriage equality hearing at Circuit Court level – cases from Hawaii, Idaho, and Nevada.

LGBTQ Nation reports:

A federal appeals court on Monday is set to consider same-sex marriage bans in Idaho, Nevada and Hawaii. The 9th U.S. Circuit Court of Appeals has scheduled two hours of arguments Monday on whether such bans should be struck down in Idaho and Nevada. Hawaii legalized same-sex marriage in December so that appeal may be dismissed. The appeals court has previously ruled in favor of same-sex marriage in the California challenge to Proposition 8, a 2008 voter approved same-sex marriage ban.

The Huffington Post has more details:

The 9th Circuit panel has allotted a combined two hours for three sets of arguments Monday. The court is expecting a big turnout and is limiting public seating in the courtroom through a lottery. The court will also stream the two hours of arguments live online. The case for gay marriage was bolstered when the court earlier this week unveiled the names of the three judges assigned to decide the issue in those three states. Judges Marsha Berzon and Ronald Gould were appointed by President Bill Clinton. And Judge Stephen Reinhardt, appointed by President Jimmy Carter, is considered one of the most politically liberal jurists on the 29-judge court. Reinhardt wrote the 2012 opinion striking down California’s gay marriage ban. He also wrote an opinion in January that declared gays and lesbians a “protected class” and extended to them the same civil right protections against discrimination that the U.S. Supreme Court has previously promised only women and racial minorities.

The live streaming link is here – the arguments start at 1 PM Pacific.

Every now and then you just have to stop for a minute, breathe, and realize what an amazing moment of time this is for LGBT rights.

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Marriage Equality USA will have a Community Call tonight after the hearing, at 6 PM Pacific – sign up here.

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Another Marriage Equality Appeals Court Hearing Monday

Saturday, September 6th, 2014

Ninth Circuit, San Francisco - Apple MaosWow, we’re really in the thick of it. There’s yet another circuit court hearing on marriage equality coming up on Monday.

HRC reports:

On Monday, September 8, the U.S. Court of Appeals for the Ninth Circuit will hear arguments in marriage equality court cases from Hawaii, Idaho and Nevada after federal district court rulings were appealed. Jackson v. Abercrombie of Hawaii, Latta v. Otter of Idaho, and Sevcik v. Sandoval of Nevada are slated to go before a three-judge panel of the Ninth Circuit at 1:00pm PT. This will be the first time this federal appeals court will hear cases challenging state bans on marriage equality since it struck down California’s Proposition 8 in Hollingsworth v. Perry (formerly Perry v. Schwarzenegger) – a case that ultimately reached the Supreme Court of the United States.

District court judges ruled in Jackson and Sevcik to uphold Hawaii and Nevada’s bans on same-sex marriage, but those decisions arrived before the Supreme Court’s landmark ruling in United States v. Windsor striking down key sections of the federal Defense of Marriage Act (DOMA). That decision that has been cited in virtually all of the 22 federal court rulings since that have ruled state bans on marriage equality unconstitutional, including Latta out of Idaho.

As we reported earlier, the three-judge panel that will hear the case is very liberal, even as compared to the Ninth Circuit as a whole.

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Three Judge Panel Announced for Ninth Circuit Marriage Equality Hearing

Wednesday, September 3rd, 2014

Three Judge Panel - Ninth Circuit

It looks like the three-judge panel that will hear marriage equality cases from Idaho, Hawaii, Nevada next week’s swings liberal. reports:

The 9th Circuit Court of Appeals has announced the 3 judge panel that will hear challenges to same-sex marriage bans in Idaho, Hawaii and Nevada: Judges Stephen Reinhardt, Ronald M. Gould and Marsha S. Berzon. All three were appointed by Democrats and, as Equality on Trial points out, are considered to be “some of the most liberal appeals court judges in the country”: Judge Stephen Reinhardt, nominated by President Carter, is a highly respected liberal judge, known for writing the opinion in the Prop 8 case when it came before the Ninth Circuit; Judge Reinhardt also wrote the opinion inSmithKline Beecham v. Abbott Labs, which held that a heightened level of judicial scrutiny is required for laws that discriminate based on sexual orientation, and that jurors can’t be discriminated against on that basis.

It seems to me that this is good news in the short run, but would it be better to have had a more mixed panel if and when the case hits the US Supreme Court?

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Another Big Circuit Court Hearing For Marriage Equality September 8th

Friday, August 29th, 2014

Ninth Circuit, San Francisco - Apple MaosThe hits just keep coming. We’ve got another big Circuit Court hearing coming up, this one in the Ninth Circuit, covering cases from Idaho, Nevada, and Hawaii.

Passport Magazine reports:

On September 8th the 9th Circuit Court will hear oral arguments beginning at the James R Browning US Courthouse, 95 7th Street, San Francisco. The arguments concern laws banning marriage equality in Idaho, Nevada, and Hawaii. This announcement comes just days after the 7th Circuit Court agreed to hear cases concerning Indiana and Wisconsin. Since the Supreme Court’s June 2013 decision striking down the Defense of Marriage Act, the Seventh, Sixth, Tenth, and Fourth Circuits have heard oral arguments in marriage equality cases. The Tenth Circuit issued rulings on June 25th and July 17th in cases from Utah and Oklahoma. The Fourth Circuit issued a ruling on July 28th in a case from Virginia. All three decisions held that same-sex couples have a fundamental right to marry.

Things are really coming to a boiling point, aren’t they? Anyone want to take odds on the US Supreme Court taking a case is next session?

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New Nevada Marriage Equality Group

Friday, June 27th, 2014

Freedom NevadaThere’s a new Nevada marriage equality group, and they are pushing for same sex marriage in the state within two years.

The Las Vegas Review Journal reports:

Freedom Nevada, a nonprofit coalition, this month formed a statewide 20-member advisory committee that includes lawmakers, attorneys, religious organizations and equal opportunity organizations, among others. “People have a fundamental right to form families,” said Bishop Dan T. Edwards with the Episcopal Diocese of Nevada, which has taken “heat” for its position of this issue. “This is a matter of civil rights when it comes to state law.”

They plan a 2016 referendum on marriage equality. Will the US Supreme Court beat them to the punch?

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Which US States Are Likely To Move Ahead On Marriage Equality This Summer

Wednesday, June 4th, 2014

USA MapOur friend Matt Baume speculates on which states will next see movement toward marriage equality.

The Huffington Post reports:

Texas, Nevada, Michigan and Idaho: All four are poised to make major strides toward the freedom to marry this summer. Last week multiple courts announced schedules for court dates in all four states.

The first one to watch is Texas, where briefings are due in early July. That state’s marriage-equality ban has already been declared unconstitutional, but now we have to wait for an appeal to work its way through the system. And in Michigan a court has just slated oral arguments for early August.

Then there’s Nevada, where the situation has been growing steadily more complicated: First a judge upheld a marriage-equality ban, but then an appeals court issued a ruling in a completely separate case that changes the way the courts would have to examine anti-gay laws. That, coupled with the attorney general’s decision not to defend the ban, means that the law has a good chance of being overturned on appeal. Oral argument in that case has just been scheduled for September.

Which state do you think will be next to move into the marriage equality column?

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Nevada Marriage Equality Lawsuit Will Finally be Heard at Ninth Circuit

Saturday, May 24th, 2014

Ninth Circuit, San Francisco - Apple MaosThe Ninth Circuit will finally hear the Nevada marriage equality case, which has been on hold since 2012.

Equality on Trial reports:

The Ninth Circuit Court of Appeals has ordered Sevcik v. Sandoval, Lambda Legal’s challenge to Nevada’s same-sex marriage ban, to be placed on their argument calendar. The case will be argued some time in September, though the order doesn’t specify an exact date. Last night, the plaintiffs filed a request with the appeals court to schedule their case no later than a separate challenge to Idaho’s same-sex marriage ban. The Nevada case has been on appeal in the Ninth Circuit since December 2012, while the Idaho appeal was only docketed a couple of weeks ago.

Why the long delay in Nevada? The Idaho case, which was just decided recently by a Federal judge, has already been scheduled.

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USA, Nevada: GOP Drops Opposition to Marriage Equality

Monday, April 14th, 2014

Nevada mapThe Nevada GOP just voted to drop opposition to abortion and marriage equality from its party platform.

LGBTQ Nation reports:

The Nevada Republican Party stripped opposition to abortion and gay marriage from its platform Saturday as state convention delegates instead focused on judging fellow Republicans on their worthiness to serve in office and adherence to GOP values. The platform, with few changes, was adopted overwhelmingly as the Las Vegas convention stretched late into the evening. The vote mirrors that of the Clark County GOP, which voted earlier to remove platform language defining marriage as between a man and a woman and statements opposing abortion.

Is it a fluke, or are conservatives slowly moving to support marriage equality? Will we see this replicated in other states in time for 2016?

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