On Tuesday, the 9th Circuit struck down gay marriage bans in both Idaho and Nevada, holding that the laws blatantly violated the 14th Amendment of the United States Constitution. The ruling arrives just one day after the Supreme Court declined to review several other marriage equality decisions, effectively legalizing gay marriage in 11 states. The circuit decision was written by Judge Stephen Reinhardt, who had previously voted to strike down California’s now-slain Proposition 8.
Because the 9th Circuit recently held that anti-gay laws are subject to “intermediate scrutiny”—meaning they must serve important governmental interests—this ruling was fairly predictable. (Lacking guidance from the Supreme Court, other circuits have only asked whether gay marriage bans are rationally related to a legitimate governmental interest—and decided that they weren’t.) Still, Reinhardt’s opinion for the court is an impressive endorsement of equality, explaining why gay marriage bans clearly violate the equal protection clause by denying gay people a basic right granted to straight people.
Intriguingly, Reinhardt attached a lone concurring opinion to his own majority opinion, noting that gay marriage bans also deny gays the “fundamental right” to marry, as guaranteed by the “liberty” in the due process clause. Then, surely with an eye toward his legacy, he added some final words:
We, as judges, deal so often with laws that confine and constrain. Yet our core legal instrument comprehends the rights of all people, regardless of sexual orientation, to love and to marry the individuals they choose. It demands not merely toleration; when a state is in the business of marriage, it must affirm the love and commitment of same-sex couples in equal measure. Recognizing that right dignifies them; in so doing, we dignify our Constitution.
Not content to leave Reinhardt with the last word, however, Judge Marsha Berzon then added her own concurring opinion. Berzon agreed with the court’s logic, but noted that gay marriage bans are also an unconstitutional form of gender discrimination—not a new theory, but a relatively unexplored one. By relying upon “archaic gender-role stereotypes” and “seek[ing] to preserve an outmoded, sex-role-based vision of the marriage institution,” Berzon writes, gay marriage bans qualify as “sex discrimination, pure and simple.” And inflicting these stereotypes on parents and children “is not a legitimate governmental interest, much less a substantial one.”
It’s not entirely clear what will happen to either Nevada or Idaho’s ban following Tuesday’s ruling. In the course of litigation, Nevada’s governor and attorney general decided not to defend their state’s ban any further, leaving the task up to an intervening third party. But in the Prop. 8 case, the Supreme Court held that third party interveners had no standing to defend state laws. That means that Nevada’s ban is legally dead and probably beyond the point of resuscitation. Barring unforeseen developments, marriages should begin almost immediately.
Idaho’s governor, on the other hand, appears to be dedicated to defending his state’s anti-gay law, which suggests the state will likely either petition the 9th Circuit to rehear the case en banc—that is, with every justice of the circuit in attendance—or simply appeal directly to the Supreme Court. Either way, the state will probably ask the high court to put Tuesday’s ruling on hold while it prepares an appeal. In the past, the justices have agreed to stay lower courts’ pro-marriage rulings. But after Monday’s surprise, it’s entirely possible that the justices will just let Idaho’s law rest in its grave.
If the Supreme Court declines to hear Idaho’s appeal, and the state’s petition for en banc review fails, then marriage equality will become “law of the circuit.” That means every other state within the 9th Circuit will be forced to recognize same-sex marriages. Of the states within the circuit, Alaska, Montana, and Arizona still ban gay marriage. Expect lawsuits to be filed in those jurisdictions tomorrow morning.
Update, Oct. 8: Justice Anthony Kennedy, who is assigned to oversee the 9th Circuit, stayed the circuit court’s ruling on Wednesday morning with regard to Idaho’s gay marriage ban. That means that, for the time being, gay marriage remains proscribed within the state. Attorneys representing gay Idahoans must file a response by Thursday at 5 p.m. Same-sex marriages, however, have already begun in Nevada, and it appears increasingly likely that no party will have standing to appeal Tuesday’s ruling.