9th Circuit to take up same-sex marriage bans in Idaho, Nevada, Hawaii

Proponents and opponents of same-sex marriage chant inside the Hawaii Capitol in Honolulu on Nov. 6, 2013
(Oskar Garcia / Associated Press)

Three federal appeals court judges who have ruled in favor of gay rights in the past are to hear arguments Monday on whether to uphold same-sex marriage bans in Western states.

The U.S. 9th Circuit Court of Appeals judges, randomly selected to consider the appeals, are Stephen Reinhardt, appointed to the court by President Carter, and Marsha S. Berzon and Ronald M. Gould, appointees of President Clinton. They are to hear arguments starting at 1 p.m. PDT on same-sex-marriage cases from Idaho, Nevada and Hawaii.

The court is to video stream the proceedings live over the Internet at Access can be obtained by clicking the website’s link, “Live Oral Arguments.”


Jon W. Davidson, legal director of Lambda Legal, a gay-rights group, said a parade of court decisions this year in favor of same-sex marriage makes the issue “an easy case for the 9th Circuit to decide.”

“I don’t know of any other civil rights issue in America that has seen as rapid a change as this, both in the courts and in public opinion,” Davidson said.

Reinhardt, one of the circuit’s most liberal judges, has written major rulings in favor of gay rights, including one striking down California’s former ban on gay marriage.

Berzon joined Reinhardt in a January decision that said gays could not be excluded from juries because of their sexual orientation. That ruling made it more difficult for governments in Western states to defend laws that discriminate on the basis of sexual orientation.

Gould, the third panelist, wrote a ruling in 2008 that reinstated a lawsuit by a military nurse who was fired under the former “don’t ask, don’t tell” policy.

The court has scheduled an hourlong hearing to review a decision by a federal magistrate in Idaho ordering the state to marry same-sex couples and to recognize out-of-state gay marriages. That ruling was placed on hold pending the 9th Circuit’s decision.


The Idaho arguments will be followed by a 30-minute hearing on a Nevada federal judge’s decision to uphold that state’s ban on same-sex marriage.

Nevada officials decided not to defend the ban on appeal, leaving arguments to a coalition that sponsored the state constitutional amendment instituting the ban. The 9th Circuit has ordered the parties to argue whether the coalition has the legal right to defend the marriage law.

The panel has set aside 20 minutes for a challenge involving a 2012 ruling in Hawaii that upheld the state’s ban on gay marriage. Hawaii lawmakers later passed a measure giving gays the right to marry, but opponents of the court ruling upholding the ban want it removed from the books so it cannot be cited in other cases.

So far, three federal appeals courts have struck down bans in other parts of the country. A ruling by the 9th Circuit usually takes months, but a decision could come any day.

An attorney representing foes of same-sex marriage declined to comment.

Twitter: @mauradolan