UPDATED 10:58 p.m.   The Ninth Circuit put its ruling into full effect on Tuesday evening, in this order and this formal mandate.  That should clear the way promptly for same-sex couples to file for marriage licenses in the two states involved directly and, soon, in the other three states in the circuit, depending upon how state officials react.

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Striking down bans on same-sex marriage in two states, and setting the stage for the same outcome in three others, a federal appeals court in San Francisco on Tuesday nullified laws in Idaho and Nevada.  The ruling by the U.S. Court of Appeals for the Ninth Circuit is expected to control pending challenges to bans in Alaska, Arizona, and Montana.

With developments since Monday’s refusal by the Supreme Court to get involved in the constitutional controversy at this point, it now seems clear that the same-sex marriage campaign has succeeded — or very soon will — in thirty-five of the fifty states, plus Washington, D.C.  That is the combined result of federal and state court rulings, actions of voters in passing ballot measures, passage of new laws by state legislatures, and the Supreme Court’s refusal to second-guess the near-unanimity of federal court rulings in favor of gay and lesbian marriage.

The Ninth Circuit’s ruling was made up of three parts.

First, all three judges on the panel joined in an opinion by Circuit Judge Stephen Reinhardt finding that the Idaho and Nevada bans violate the constitutional guarantee of same-sex couples to be treated the same legally as opposite-sex couples.  Second, Judge Reinhardt issued a separate opinion, for himself only, saying he would also strike down those bans under the Constitution’s Due Process Clause, arguing that the right to marry is a fundamental guarantee and that gays and lesbians have a right to share in that right. Third, Circuit Judge Marsha S. Berzon, in a separate opinion only for herself, said she would have also struck down the bans on the premise that they discriminate on the basis of gender.

The third member, Circuit Judge Ronald M. Gould, joined only the main opinion on the equal protection principle.

This ruling was perhaps the least surprising among four federal courts of appeals decisions striking down state prohibitions on same-sex couples marrying, and already-married couples gaining official state recognition of those unions, performed elsewhere.

The Ninth Circuit already was on record for striking down California’s ban, “Proposition 8,” although that decision did not remain on the books because of a procedural flaw when the case went to the Supreme Court last year.  Even so, same-sex marriage is legal in California under an earlier ruling by a federal trial judge.

In addition, the Ninth Circuit applies a tougher standard — heightened scrutiny — for laws that are challenged as discriminating against gays, lesbians and transgender people, and no marriage ban has yet survived that test.

In the Idaho case, the new decision upholds a federal trial judge’s decision against that state’s ban.  In the Nevada case, the ruling overturns a decision by a federal trial judge in favor of that state’s ban.

It is possible that Idaho officials could try to get the full Ninth Circuit bench to reconsider the ruling, or they could seek to take the case on to the Supreme Court.  However, the Ninth Circuit previously refused en banc review in the “Proposition 8” case.  And, the Supreme Court’s refusal on Monday to review the three other federal appeals courts’ decisions that came out the same way might suggest little hope of succeeding with a challenge before the Justices.

Nevada officials had abandoned a defense of their state’s ban, and the defense of the law was carried on by a private group in the state, the Coalition for the Protection of Marriage.  Although that group could not legally stand in for the state, the Ninth Circuit panel agreed to consider its views on the equal protection question.

The decision was not postponed by the three-judge panel, so it would go into effect as soon as the Ninth Circuit issues a formal order to do so.

Posted in Cases in the Pipeline, Featured, Same-Sex Marriage, Same-Sex Marriage Post-Windsor

Recommended Citation: Lyle Denniston, Two more bans fall (UPDATED), SCOTUSblog (Oct. 7, 2014, 4:34 PM), http://www.scotusblog.com/2014/10/two-more-bans-fall/