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9th Circuit tosses gay marriage bans, ruling covers Arizona

A day after bans on gay marriage fell in other parts of the country when the Supreme Court declined to hear appeals, the 9th Circuit has ruled that such laws in Idaho and Nevada are "impermissible gender discrimination." That ruling will impact Arizona's constitutional prohibition against same-sex marriage.

"We hold that the Idaho and Nevada laws at issue violate the Equal Protection Clause of the Fourteenth Amendment because they deny lesbians and gays who wish to marry persons of the same sex a right they afford to individuals who wish to marry persons of the opposite sex," the decisions in two cases filed Tuesday read.

Same-sex couples still aren’t able to marry in Arizona but took a major step closer to walking down the aisle with the court's rulings.

"It doesn’t mean everybody is free to marry who they love in Arizona," said Kelly Dupps, training director for HERO, or Human and Equal Rights Organizers.

But Dupps said things are moving quickly for supporters of marriage equality here because Arizona is part of the 9th Circuit.

The appeals court cited the U.S. Constitution in overturning the state prohibitions on gay marriage.

"Idaho and Nevada’s same-sex marriage proscriptions are sex based, and these bans do serve to preserve 'invidious, archaic, and overbroad stereotypes' concerning gender roles. The bans therefore must fail as impermissible gender discrimination," appeals court Judge Marsah Berzon wrote in a concurring opinion that formed part of the near-identical 90-page decisions in the cases.

"The lessons of our constitutional history are clear: inclusion strengthens, rather than weakens, our most important institutions," Judge Stephen Reinhardt wrote.

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From the rulings:

Idaho and Nevada’s marriage laws, by preventing same-sex couples from marrying and refusing to recognize same-sex marriages celebrated elsewhere, impose profound legal, financial, social and psychic harms on numerous citizens of those states These harms are not inflicted on opposite-sex couples, who may, if they wish, enjoy the rights and assume the responsibilities of marriage. Laws that treat people differently based on sexual orientation are unconstitutional unless a "legitimate purpose ... overcome[s]" the injury inflicted by the law on lesbians and gays and their families.


Because we hold that Idaho and Nevada may not discriminate against same-sex couples in administering their own marriage laws, it follows that they may not discriminate with respect to marriages entered into elsewhere. Neither state advances, nor can we imagine, any different—much less more persuasive—justification for refusing to recognize same-sex marriages performed in other states or countries.

As the 9th Circuit's decisions are binding in Arizona, Tuesday's moves by the court will likely lead to a quick overturning of Arizona's ban on gay marriage. Two lawsuits seeking to overturn the ban are pending in the courts, Majors v. Horne and Connolly v. Roche. It's unclear yet how quickly Arizona counties will be able to legally issue marriage licenses to same-sex couples, as state officials will remain bound by Arizona laws until a judge clears the way.

Two other states that have banned gay marriage, Alaska and Montana, will also be affected by the ruling.

Arizona voters passed a constitutional amendment in 2008 that added a prohibition on same-sex marriage, with 56 percent approving the ban. The state first barred gay marriages with a 1996 law.

The Idaho case decided Tuesday, Latta v. Otter, was filed by four same-sex couples. It challenges Idaho’s marriage laws that define marriage between one man and one woman. A federal magistrate ruled that Idaho’s marriage laws were unconstitutional.

The Nevada case, Sevcik vs. Sandoval, was filed by Beverly Sevcik and Mary Baranovich, a couple who have been together for more than 40 years. They and seven other couples challenged a Nevada state law and constitutional amendment that barred same-sex couples from getting married and refused to recognize marriages from other states. A federal judge sided with the state, but that ruling was overturned by the appeals court Tuesday. Nevada had ceased to defend its ban in the courts a month ago, when state officials determined that it would likely be found unconstitutional.

The leaders of Equality Arizona, a LGBT rights group, said that the cases are "more examples of the momentum that the equality movement is gaining, but the situation in our state is unclear."

"Every day, committed gay couples in Arizona are still being denied the rights and responsibilities afforded to straight couples, and we must keep fighting to cease that reality," said the group's co-chairs, Catherine Alonzo and Nathan Rhoton.

"As we await the ruling from U.S. District Judge John Sedwick that will affect our state, we continue to urge Attorney General Tom Horne to stop defending the Arizona marriage ban," the pair wrote.

Horne's office issued a statement that it is "premature" to direct Arizona's county clerks to issue marriage licenses to same-sex couples.

The Attorney General's Office will review the decision "in order to accurately determine its implications for the pending Arizona cases," said spokeswoman Stephanie Grisham.

"Until we can decide what the implications are for Arizona … today’s decision shouldn’t be treated as final," Grisham said.

Nevada and Idaho could still petition the U.S. Supreme Court for a review, she said.

The rightwing Center for Arizona Policy assailed the ruling, in a statement by its president, Cathi Herrod.

"Laws may change, but what will always remain is that the definition of marriage that has been ordained since the beginning of time is what is best for men, women, children, and our society as a whole," Herrod wrote.

"By fundamentally undermining the right of the people to vote to protect marriage as the union of one man and one woman, the Ninth Circuit Court has not only usurped their authority, but has taken another step to deny every child the best opportunity to have a mother and a father," she said.

The Human Rights Campaign, a national LGBT civil-rights group, welcomed the decision.

"At the end of the day, it shouldn't matter what state you call home," said the group's legal director, Sarah Warbelow. "All Americans deserve the right to marry the person they love. Today's ruling in the Ninth Circuit affirms that the U.S. Constitution doesn't allow for states to pick and choose which of its citizens are entitled to certain rights, and which are not."

There are currently two cases pending in U.S. District Court challenging Arizona’s ban.

Connolly vs. Roche and Majors vs. Horne were both filed this year challenging both Arizona’s law refusing to recognize out-of-state same-sex marriages and the state's Constitution defining marriage as between one man and one woman as violations of equal protections under the U.S. Constitution’s 14th Amendment.

Paul Bender, a professor at Arizona State University’s Sandra Day O’Connor College of Law, said the 9th Circuit’s ruling has a big impact on Arizona’s cases because U.S. District Judge John Sedwick, who is hearing both cases, must follow the higher court’s precedent.

Bender said the 9th Circuit could still rehear the Nevada and Idaho case en banc, meaning a larger panel of judges would review.

"If the 9th Circuit is not stayed, he (Sedwick) will follow what it does and grant relief to plaintiffs challenging the gay marriage ban,”" he said.

Heather Macre, one of the attorneys representing same-sex couples in Connolly v. Roche, said the team plans to file a motion with supplemental authority in the hopes of getting a ruling more expeditiously. Without a ruling, she said, same-sex couples won’t be able to marry in Arizona.

"We still need an order here," she said.

Macre said a lot depends on what the Attorney General’s Office decides to do.

"We have reached out asking them if they’re going to continue defending the ban," she said.

Why Marriage Matters Arizona is spearheading a petition asking Horne to "stand down" in his continued defense of the ban.

Project Director Jeremy Zegas said Horne is now the only person standing in the way of marriage equality.

“We are calling on the attorney general to stop defending the clearly unconstitutional ban in the state and wasting state resources on this appeal,” Zegas said.

Monday's move by the Supreme Court effectively legalized same-sex marriage in 11 states. It was already legal in 18 states and the District of Columbia. Barring a successful appeal to the Supreme Court in the Idaho case, Tuesday's appellate ruling will add five more to the list.

The high court announced Monday that it would let three appellate court decisions stand, making same-sex marriage legal in Indiana, Oklahoma, Utah, Virginia and Wisconsin.

In the 9th Circuit case, a three-judge panel ruled unanimously to toss out the bans on gay marriages.

"I would also hold that the fundamental right to marriage, repeatedly recognized by the Supreme Court, in cases such as Loving v. Virginia, 388 U.S. 1 (1967), Zablocki v. Redhail, 434 U.S. 374 (1978), and Turner v. Safley, 482 U.S. 78 (1987), is properly understood as including the right to marry an individual of one’s choice," Judge Reinhardt wrote in a concurring opinion. "That right applies to same-sex marriage just as it does to opposite-sex marriage."

"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," he wrote.

Cronkite News reporters Lauren Loftus and Emilie Eaton contributed to this report.

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1 comment on this story

Oct 7, 2014, 4:54 pm
-0 +9

While the spelling is different, I find it ironic that one of the bigots, who’s against liberty and justice for ALL, is named “Herrod”.

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Arizona Constitution

Only a union of one man and one woman shall be valid or recognized as a marriage in this state.