BREAKING: 9th Circuit Court of Appeals strikes down same-sex marriage bans in Idaho and Nevada

The 9th Circuit court of Appeals in San Francisco on Tuesday struck down state same-sex marriage bans in Idaho and Nevada.  The ruling (.pdf) is expected to control pending legal challenges to bans in Alaska, Arizona, and Montana. Lyle Denniston at SCOTUSblog reports, Two more bans fall:

The Ninth Circuit Court’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. Berson, 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 Court 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 Court 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 Circuit Court panel agreed to consider its views on the equal protection question.

The decision was not postponed by the three-judge panel, so that it would go into effect as soon as the Ninth Circuit Court puts it into effect formally.

The Ninth Circuit Court opinion is binding precedent in Arizona. Arizona officials, however, are not ready to issue marriage licenses just yet.  The Arizona Republic reports. Gay marriage in Arizona? 9th Circuit strikes down Nevada, Idaho ban:

A federal appeals court on Tuesday struck down gay marriage bans in Idaho and Nevada.

The San Francisco-based 9th U.S. Circuit Court of Appeals ruled that gay couples’ equal protection rights are violated by the bans. Arizona is part of the San Francisco-based circuit, so its ruling would apply to this state as well.

However, officials at the Arizona Attorney General’s office and the Maricopa County Clerk of Appeals would only immediately say Tuesday that they were reviewing the ruling.

Stephanie Grisham, a spokeswoman for Arizona Attorney General Tom Horne, said it is “premature” to direct county clerks to start issuing marriage licenses to same-sex couples.

“For now, it’s not a done deal,” Grisham said, adding that Nevada and Idaho can petition the U.S. Supreme Court for certiorari review.

“If we wanted to, if we found something we could use, we could appeal to the U.S. Supreme Court.”

The Maricopa County Clerk of the Superior Court, which issues marriage licenses, was reviewing the ruling Tuesday afternoon. The office is prepared to adhere to the judge’s ruling, said Chris Kelly, chief deputy clerk of the Superior Court.

Kelly had not yet received questions from the public when the ruling came down, but said she anticipated the public to start calling the office when more people become aware of the ruling. The office had been researching how other states handled same-sex marriage applications and printed marriage licenses, Kelly said.

“We have been preparing for the prospect that this were potentially to come down,” Kelly said. “As soon as we get the word, we’re prepared to adhere to the judge’s ruling.”

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Two lawsuits were filed in Arizona federal court earlier this year challenging the state’s marriage definition — Connolly vs. Roche and Majors vs. Horne. Both were before U.S. District Judge John Sedwick, and both charged that Arizona’s statute and the state’s Constitution defining marriage violate equal-protection and due-process rights guaranteed by the U.S. Constitution’s 14th Amendment.

“Arizona cannot divide people into two groups on a question like marriage,” Shawn Aiken, the attorney representing the couples in the Connolly case, has said. “You can’t give it to one group and take it away from another, not on such a fundamental right.”

The Christian legal organization Alliance Defending Freedom is overseeing the defense of Arizona’s definition in the two cases for the Arizona Attorney General’s Office.

I have said before that judge Sedwick is just waiting for the 9th Circuit Court to rule to issue his opinion in reliance on 9th Circuit precedent. I expect that Judge Sedwick will issue his opinion in Connolly vs. Roche soon. I also expect that Tom Horne and the Alliance Defending Freedom to whom he farmed out the defense of the case will use any means possible to delay the inevitable for as long as possible.

UPDATE: The Phoenix New Times reports, Legal Same-Sex Marriages in Arizona Could Take Place by Year’s End Due to Ruling:

Arizona Attorney General Tom Horne, who was defeated by Republican challenger Mark Brnovich in the August 26 primary election, says his office is still analyzing today’s ruling to see “just how broad or narrow the language is.”

Arizona could intervene in the Nevada and Idaho cases and file its own petition for certiorari review, Horne says.

After Monday’s Supreme Court decision, Horne released a statement saying it “does not affect the validity of the Arizona laws challenged in the cases that our office is presently litigating. The judicial decisions challenged in the certiorari petitions do not bind the United States District Court for the District of Arizona. We will continue to defend the lawsuits challenging the constitutionality of Arizona’s marriage laws unless and until a controlling judicial decision deems those laws unconstitutional.”

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Paul Eckstein, a lawyer for a same-sex partner case now before Arizona U.S. District Court, is helping Lambda Legal to represent a case filed earlier this year on behalf of same-sex partners. The case was given a boost on September 12, when U.S. District Judge John Sedwick ordered the state Department of Health Services to alter a death certificate for a man to show he was married to another man.

Horne isn’t trying this case personally, as he’s done with others. Horne doesn’t believe in the ban and thought he would ultimately lose any defense of it, which is why he farmed it out to Robert Ellman, state Solicitor General, according to Eckstein.