Appeals judges seem to lean toward marriage equality

Three federal appeals court judges left little doubt at a hearing in San Francisco Monday that they are likely to favor same-sex marriage rights in Idaho, Nevada and Hawaii.

The 9th U.S. Circuit Court of Appeals panel took challenges to marriage bans in the three states under consideration after hearing more than two hours of arguments and will issue written decisions at a later date.

Referring to same-sex parents, Judge Stephen Reinhardt questioned Monte Stewart, a lawyer defending bans in Idaho and Nevada, about his argument that allowing gay marriage would weaken what Stewart called children’s “bonding right” to be raised by a father and a mother:

“If the message is that you should bring a child into a committed relationship, then they ought to be allowed to marry.”

Stewart argued to the court that Idaho’s prohibition on same-sex marriage helps children of opposite-sex marriage by sending society a message that biological parents should take responsibility for their children:

“The powerful message is that you need to create an enduring stable bond for the benefit of children.”

Judge Marsha Berzon repeatedly questioned the reasoning for denying children of gay parents the same stability and benefits of having married parents:

“Essentially your thesis is to deny those children (those benefits) in order to send a vague message to other people.”

The third judge on the panel, Ronald Gould, asked fewer questions, but queried Stewart about the origin of the phrase “bonding right,” saying:

“I don’t think it is in the Bill of Rights.”

The question of whether the federal Constitution provides a right to same-sex marriage is likely to be decided eventually by the U.S. Supreme Court. Three other regional federal appeals courts — the 4th Circuit in Richmond, Virginia, the 7th Circuit in Chicago and the 10th Circuit in Denver — have previously struck down same-sex marriage bans in a total of five states.

Those rulings are already being appealed or expected to be appealed to the high court.

Stewart said during the hearing:

“We all know this is going to be decided one step up.”

The 9th Circuit — the largest appeals court in the nation, with jurisdiction over nine western states — has ruled on same-sex marriage once before, in a 2012 decision by Reinhardt striking down California’s Proposition 8 ban. But that ruling was written narrowly and applied only to California.

The court said that because same-sex marriage was legal in California for several months in 2008, it was unconstitutional for Proposition 8, a voter initiative, to withdraw that right for no reason other than animosity toward homosexuals.

Later, the appeals court decision was taken off the books when the U.S. Supreme Court ruled in 2013 that Proposition 8 supporters had no standing to appeal. The high court action had the effect of reinstating a trial judge’s ruling allowing gay marriages in California.

The current cases could provide the platform for the 9th Circuit to rule more broadly on whether it believes there is a constitutional right to same-sex marriage and if so, on what ground.

The possible basis for such a ruling could be either that the Constitution contains a separate right to same-sex marriage, or that such a right is derived from the equal protection guarantee of freedom from gender and sexual orientation discrimination. The three cases before the 9th Circuit came to the court in different procedural situations.

In Idaho, Gov. C.L. “Butch” Otter, represented by Stewart, is appealing a federal trial judge’s ruling striking down the state’s ban. In Nevada, a trial judge upheld the state’s constitutional amendment against gay marriage, but Gov. Brian Sandoval decided not to defend it on appeal.

Stewart is representing a group called the Coalition for the Protection of Marriage in the appeal. In Hawaii, a federal judge upheld a state ban, but the Legislature last year passed a new law allowing same-sex marriage.

An organization called Hawaii Family Forum wants the 9th Circuit to keep the case on hold until challenges to the new law are resolved. Currently 19 states and the District of Columbia allow same-sex marriage.