US Appeals Court to Review Same-Sex Marriage Bans in 3 States

FILE - Judge Stephen Reinhardt listens to arguments during hearing on California's Proposition 8 at the 9th District Court of Appeals in San Francisco.
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FILE - Judge Stephen Reinhardt listens to arguments during hearing on California's Proposition 8 at the 9th District Court of Appeals in San Francisco.
FILE – Judge Stephen Reinhardt listens to arguments during hearing on California’s Proposition 8 at the 9th District Court of Appeals in San Francisco.

For the first time since it declared California’s gay marriage ban unconstitutional, a U.S. appeals court will review gay marriage bans in Nevada, Idaho and Hawaii.

The 9th U.S. Circuit Court of Appeals in San Francisco is scheduled to hear arguments on whether judges in Nevada and Hawaii were correct to uphold those states’ gay marriage bans. Hawaii’s legislature subsequently voted to allow same-sex nuptials, while a federal judge struck down Idaho’s gay marriage prohibition.


Stephen Reinhardt, the 9th Circuit judge who previously struck down California’s gay marriage ban in 2012, will be one of three judges to hear arguments in the latest cases on Monday.

The other two 9th Circuit judges, Marsha Berzon and Ronald Gould, were both appointed by President Bill Clinton, a Democrat. Reinhardt was appointed by President Jimmy Carter, also a Democrat.

Proposition 8 ruling

The 9th Circuit in 2012 invalidated Proposition 8 because it singled out a minority group for disparate treatment for no compelling reason, it said in its ruling. The U.S. Supreme Court dismissed the case last year without ruling on the legal merits of gay marriage.

Nineteen of the 50 states and the District of Columbia allow same-sex marriage. Last year, the Supreme Court invalidated a portion of the Defense of Marriage Act known as DOMA that limited federal benefits to heterosexual couples.

Since then, more than 30 federal and state judges have ruled against same-sex marriage bans. The Nevada and Hawaii opinions came before the U.S. Supreme Court weighed in on DOMA.

On September 3, a Louisiana federal judge upheld that state’s ban on same-sex marriage in what was the first district court to break the pattern of support for gay marriage since the DOMA ruling. The next day, the Chicago-based U.S. Court of Appeals for the 7th Circuit struck down bans from Indiana and Wisconsin, joining two other appeals courts in similar rulings.

The numerous gay marriage rulings in recent months have raised the pressure on the Supreme Court to decide the issue. Last week, 15 states that allow gay marriage and 17 that don’t asked the high court to weigh in.

If the Supreme Court takes up the issue, the dispute would likely be heard in early 2015 with a decision by the end of June.

Withdrew case

State officials initially defended Nevada’s gay marriage ban. Reinhardt, however, wrote another opinion in an unrelated case earlier this year which further heightened constitutional protections for gays and lesbians.

Nevada’s governor and attorney general promptly withdrew from the marriage case, writing that Reinhardt’s decision meant support of gay marriage restrictions “cannot withstand legal scrutiny.”

The Coalition for the Protection of Marriage will argue in favor of the ban instead.

“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.

Hawaii’s governor, who supports gay marriage, argues that case is moot given the state now allows same-sex weddings.

Supporters, opponents

Supporters of the bans in the three states before the 9th Circuit argue that state governments have an interest in promoting marriage between a man and a woman, which they say is optimal for childrearing. Opponents say there is no data supporting the childrearing contention and they argue that the marriage prohibitions are unconstitutional violations of equal protection rights.

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, beginning at 4:00 p.m. EDT (2000 GMT).

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.

The 9th Circuit panel is under no deadline to rule.

Some materials for this report came from Reuters and AP.