Same-Sex Marriage Bans in Idaho, Nevada Ruled Unconstitutional (Updated)

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Same-Sex Marriage Bans in Idaho, Nevada Ruled Unconstitutional (Updated)

Jessica Mason Pieklo

Tuesday the Ninth Circuit Court of Appeals struck two more state-level same-sex marriage bans, setting the stage for marriage equality in at least 35 states.

UPDATE, October 8, 5:30 p.m.: In a revised order issued Wednesday afternoon, Justice Anthony Kennedy clarified that the Ninth Circuit’s ruling striking Idaho and Nevada’s same-sex marriage bans should be stayed only as it applies to Idaho. Justice Kennedy’s first order issued Wednesday suggested the entire Ninth Circuit decision was stayed, despite the fact that Nevada has not appealed the Ninth Circuit’s ruling.

Same-sex marriage bans in Nevada and Idaho fell on Tuesday after the U.S. Court of Appeals for the Ninth Circuit unanimously ruled those bans unconstitutional.

The decision came just one day after the U.S. Supreme Court declined to take up appeals in seven cases challenging marriage bans across the country. Marriage equality, as a result of that decision, is now recognized in Wisconsin, Oklahoma, Utah, Virginia, and Indiana. It also clears the way for same-sex marriages in Colorado, Kansas, Wyoming, North Carolina, South Carolina, and West Virginia.

Tuesday’s decision by the Ninth Circuit is expected to control pending challenges to marriage equality bans in Montana, Alaska, and Arizona.

Roe is gone. The chaos is just beginning.

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The consolidated appeal before the Ninth Circuit affirmed a lower court’s ruling against Idaho’s same-sex marriage ban, but overturned a separate federal court ruling declaring Nevada’s ban on marriage equality constitutional. The defendants in the Idaho challenge could appeal Tuesday’s decision to the entire panel of judges from the Ninth Circuit. They could also bypass the Ninth Circuit and appeal directly to the Roberts Court.

Meanwhile, attorneys for the State of Nevada had stopped defending their state’s ban in court. Instead, a private group in the state, the Coalition for the Protection of Marriage, continued defending the ban. Although that group could not legally stand in for the state to defend the ban, the circuit court panel nonetheless agreed to consider its views on the equal protection question.

Tuesday’s decision from the Ninth Circuit sets the stage for marriage equality to expand to as many as 35 states and the District of Columbia.

“The lessons of our constitutional history are clear: inclusion strengthens, rather than weakens, our most important institutions,” wrote Judge Stephen Reinhardt for the the Ninth Circuit.

Reinhardt, a President Carter appointee, also authored the Ninth Circuit decision two years ago striking down Proposition 8, California’s ballot initiative banning same-sex marriage. Reihhardt was joined on the panel by U.S. Circuit Judge Marsha Berzon and U.S. Circuit Judge Ronald Gould, both President Clinton appointees.

A ruling from the Sixth Circuit Court of Appeals, which is considering challenges to same-sex marriage bans in Michigan, Kentucky, Ohio and Tennessee, is expected soon as well.

The Fifth Circuit Court of Appeals is reviewing same-sex marriage bans, as is the 11th Circuit Court of Appeals. The Fifth Circuit covers Louisiana, Mississippi, and Texas, while the 11th Circuit covers Alabama, Florida and Georgia.

No federal appeals court so far has upheld a same-sex marriage ban, which may explain Monday’s refusal by the Supreme Court to take up the issue of statewide same-sex bans.

Attorneys for the State of Idaho filed a last minute plea with the Roberts Court Wednesday morning to postpone the Ninth Circuit decision. Justice Anthony Kennedy, who handles requests from the Ninth Circuit, ordered the appeals court temporarily postpone its order allowing same-sex marriages to move forward in Idaho until further word from either Kennedy or the entire Supreme Court.

Attorneys representing same-sex couples challenging Idaho’s ban have until 5 p.m. Thursday to respond to Idaho’s request. In the meantime, same-sex couples in Idaho hoping to marry will have to wait until further notice from the Roberts Court.