Gay groups upbeat as court questions Nevada, Idaho gay marriage bans

A supporter of gay marriage holds a sign outside the U.S. 9th District Court of Appeals in San Francisco.
(Marcio Jose Sanchez / Associated Press)

After months of rulings around the country in favor of gay marriage, a federal appeals court Monday appeared to need little convincing that bans on same-sex nuptials in Nevada and Idaho should be overturned.

Three U.S. 9th Circuit Court of Appeals judges, all appointed by Democrats, will soon join the chorus of circuit courts weighing in on same-sex marriage. Three federal appeals courts already have struck down bans in other parts of the country.

Gay rights lawyers appeared relaxed, cheerful and confident when they entered court. “The case keeps getting easier and easier to win,” said Jon Davidson, legal director of Lambda Legal, a gay advocacy group challenging Nevada’s ban.


Kate Kendell, who heads the National Center for Lesbian Rights, grinned broadly before the hearing started. Her group was representing Idaho’s same-sex couples.

Nevada officials decided not to even defend the state’s ban, concluding they would lose, and instead let an advocacy group fight for it.

The atmosphere was different when the 9th Circuit first took up a challenge in 2011 of California’s Proposition 8, the now-defunct ban on gay marriage. During that hearing, lawyers on both sides squirmed under the questioning, and the jurists themselves seemed tense.

But on Monday, the outcome seemed all but assured. The judges on the panel had joined or written gay rights rulings in the past and can rely on new precedents that favor same-sex marriage. Nineteen states and Washington, D.C., now permit gay marriage.

Monte Stewart, a lawyer who argued in favor of the bans in Idaho and Nevada, told the judges that opposite-sex marriage sends an important social message that children benefit when reared by both their biological father and mother.

But Judge Marsha S. Berzon, a Clinton appointee, suggested governments may promote social messages in other ways, such as billboards. She said Stewart’s defense of the marriage bans amounted to a message that gay unions are “second-rate families.”


“You are sending a message that they are less desirable families,” Berzon said. “That is what you are doing.”

The court is considering a ruling from Idaho that overturned the state’s marriage ban, and a district court judge’s decision in Nevada that upheld that state’s prohibition against same-sex nuptials.

Judge Stephen Reinhardt, a Carter appointee who wrote a 2012 ruling overturning Proposition 8, observed that people who are attracted to their own gender “ also have the right to live their lives as human beings.”

At times, the panel appeared to be wrangling more with the technical aspects of the decision it will write than the outcome.

Berzon, for instance, noted that same-sex marriage bans amount to gender discrimination.

The panel also heard brief arguments on whether to remove from the law books a 2012 Hawaii district court ruling against same-sex marriage.

Hawaii lawmakers later approved same-sex marriage, and supporters want the adverse decision removed or vacated so it cannot be cited in other cases.

Judge Ronald M. Gould, a Clinton appointee, participated in Monday’s hearing by video from Seattle, where he is based, but asked few questions.

A ruling could come at any time.

Twitter: @mauradolan