A three-judge panel of the Ninth
Circuit Court of Appeals in San Francisco on Monday heard arguments
in three cases challenging state bans on gay marriage.
Plaintiffs challenging Nevada's ban are
looking to overturn a lower court's 2012 ruling upholding the state's
ban. Idaho Governor Butch Otter, a Republican, is seeking to reverse
a federal judge's ruling striking down Idaho's ban.
And while lawmakers in Hawaii last year
legalized marriage for gay couples, lawyers representing the
Christian conservative Hawaii Family Forum asked the court to keep
their case alive in hopes of reaching the Supreme Court.
Monte Stewart of the Coalition for the
Protection of Marriage defended bans in Idaho and Nevada.
Stewart's argument that allowing gay
couples access to marriage would weaken fathers' “commitment to
abide by the child's bonding norm” was questioned by Judge Marsha
“Has that happened in Massachusetts?”
she asked, a reference to the nation's first marriage equality state.
“My understanding is no.”
“What strikes me is that the train
has left the station,” she added.
Stewart stated that Idaho had learned a
“hard lesson” in allowing no fault divorce that it does not wish
“Because Idaho injured the marriage
institution once, no one should suggest that it thereby forfeit its
right to say 'no' to what it sees as another injury,” Stewart
“Well except for the difference being
that in regard to no fault divorce you weren't using another group as
a scapegoat for a message,” Berzon countered. “Including the
children of those marriages who are being harmed. Who have two
parents who would be potentially in a stable relationship and would
potentially have the financial and other benefits of marriage. And
essentially your thesis is to deny those children, leave aside the
parents for the moment, those benefits in order to send some vague
messages to other people.”
It was familiar ground for the court,
which in 2012 narrowly declared California's gay marriage ban,
Proposition 8, invalid.
But the legal landscape has shifted
dramatically in the last two years. State and federal court judges
have struck down bans in more than a dozen states since the Supreme
Court last year decided the federal government must recognize the
legal marriages of gay couples.
University of California, Irvine law
professor Douglas NeJaime told the AP that “this [Ninth Circuit]
panel seemed very skeptical of the arguments in favor of the bans.”
The court's actions are most pressing
Earlier this year, Nevada Governor
Brian Sandoval, a Republican, withdrew the state's defense in the
case less than a month after the court ruled it discriminatory to
reject a person from a jury pool based on sexual orientation
Tara Borelli, a Lambda Legal attorney
representing the Nevada plaintiffs, stated that Stewart's Coalition
for the Protection of Marriage does not have standing to request
review from the Supreme Court, in the event plaintiffs prevail in the