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In muted arguments, Ninth Circuit panel appears to lean towards pro-marriage equality position

LGBT Legal Cases Marriage equality Marriage Equality Trials

ninth-circuitAmidst unusual talk of crystal balls and the two sticks that states may use to encourage people to get married, three judges of the Ninth Circuit Court of Appeals heard arguments today in appeals out of Nevada, Idaho and Hawaii as to whether or not bans on marriage equality violate the U.S. Constitution.

In a two-and-a-half hour hearing, Judges Stephen Reinhardt and Marsha Berzon in San Francisco—joined by Judge Ronald Gould from Seattle via video—asked pointed questions of a parade of lawyers, presaging what looks like a 3-0 ruling striking down state bans on marriage equality.

The first two appeals, from Idaho and Nevada—concerned two district court decisions invalidating an upholding state bans, respectively.  Monte Stewart argued on behalf of Idaho Gov. C.L. Otter and for the Coalition for the Protection of Marriage, which defended Nevada’s ban in place of Gov. Brian Sandoval’s administration, which declined to mount a defense.

In his arguments, Stewart described a child’s ‘bonding right’ to be raised by the man and women who brought that child into the world.  If same-sex couples were allowed to wed, he argued, children’s ‘bonding right’ would be undermined.  But Judge Berzon was skeptical of that train of reasoning: how, she asked Stewart, does allowing same-sex couples to wed—couples that are often already raising children—take away from the well-being of children?

Stewart and the judges, Berzon in particular, sparred about the change in Americans’ attitude towards marriage, with Judge Berzon making the statement that “the train has left the station,” since opposite-sex couples’ rates of marriage have declined for years—even before the introduction of marriage equality as a concept.  The two also touched upon the effects of no-fault divorce laws, which Stewart bemoaned but which Berzon and Reinhardt both pointed out would make a better target of attack for someone seeking to support marriage than same-sex couples.

Later in the arguments, Judge Berzon put the matter simply to Monte Stewart: why is it OK for children to be raised in second-class families?  Stewart denied that his side supported that rhetoric, but Berzon pushed back strongly on the lawyer, arguing that his statements about the message that states should send regarding marriage meant exactly that.

Although the judges’ questions for Stewart in both the Idaho and Nevada appeals were tough, they also probed the weak spots in the arguments of lawyers speaking in favor of marriage equality.  Much discussion was made of the proper level of constitutional scrutiny which should be applied to the laws.  Judge Berzon suggested that marriage equality proponents would be in trouble if the court resorted to traditional rational basis scrutiny, but all three judges entertained arguments that the Ninth Circuit’s earlier decision in SmithKline—which ruled that sexual orientation discrimination merits heightened scrutiny—requires a similar holding in these cases.  Judge Berzon also expressed an interest in a possible ruling on sex discrimination grounds, which most other courts have been hesitant to do.

In short, it seems quite likely that the judges were unimpressed by Stewart’s arguments and will invalidate the state marriage bans on heightened scrutiny.  The real question at this point is whether the case will hinge only on sexual orientation discrimination claims or will instead include sex discrimination claims.  Another question is whether the judges’ opinion will invalidate the laws as impermissible restrictions on same-sex couples’ fundamental right to marry, or if they will simply rely on equal protection to make their decision.

At the end of the hearing, lawyers on either side of a marriage equality challenge in Hawaii briefly touched upon whether the judges should dismiss as moot and vacate a challenge from that state now that same-sex couples can wed, thanks to the state’s legislature.  The judges essentially seemed to believe that it wouldn’t matter too much how they decided on that issue, since the decision in the other two state challenges will impact Hawaii as well.  And, of course, as Judge Reinhardt pointed out with a laugh, all the parties and judges acknowledge that it is the U.S. Supreme Court who will be the ultimate arbiter of marriage equality’s fate at some point in the next year or so.


  • 1. jdw_karasu  |  September 8, 2014 at 6:48 pm

    Appear? Perhaps something a little stronger than that. 🙂

  • 2. Margo Schulter  |  September 8, 2014 at 7:53 pm

    What occurs to me is that Judge Berzon’s interest in gender discrimination (also subject to heightened or more specifically intermediate scrutiny where an “exceedingly persuasive” justification is required) might tie in with Justice Kennedy’s query on that topic in the 2013 oral arguments. Also, this might be an interesting approach for Justice Ginsburg, who was a leading litigator on sex discrimination in a lot of the key cases of the 1970’s.

    The “genderless marriage” rhetoric invites exactly that kind of scrutiny.

  • 3. Ragavendran  |  September 8, 2014 at 9:46 pm

    I see that I'm a bit late to the discussion here! I had to run out of the courthouse immediately after oral arguments to catch my returning flight. I composed most of the following in the flight.

    At about 7:40am, davepCA and I joined brandall and a United Express flight attendant as third and fourth in line, Kathleen and Ann joined us a bit after that, and RLsfba later on. It was truly an honor for me to meet and mingle with all these fellow EoTers and other long-time supporters of equality in flesh and blood. Totally worth my trip from Boulder. I wish to thank davepCA in particular for accommodating me in his home and keeping me entertained over the weekend. Here is a group picture that Kathleen posted on Equality Case Files.

    At around noon, the attorneys who would argue were called to line up first and were let in. Then the press, and then the plaintiffs and their invited guests/family (this third line was very long). Finally, after what seemed like a very long time, the public were let in. The courtroom was pretty packed already when I got there (as the fourth person in line) and we only got to sit in the last two or three rows.

    Obviously, the proceedings were live streamed with video and so everyone got to see what the people in the courtroom got to see. (The one exception – we couldn't see the attorneys' faces, as they were facing the judges. I, for one, would have loved to have a better view of Monte Stewart's face.) I will have to re-watch the proceedings again anyway, because at several points, I couldn't catch what Judge Reinhardt or some of the attorneys were saying.

    From the questioning, it can be safely said that the panel had unanimously made up their mind about the fate of Idaho's and Nevada's bans even before the oral arguments. I will not repeat the points in Jacob's fine analysis above, or the tickling discussions about the sticks and balls that are already present here – suffice to say it was as entertaining to listen to in the courtroom as I gather it was to those watching the live stream! Just a couple of points that I haven't seen mentioned and would like to add:

    (1) Monte Stewart reached the height of arrogance when he claimed that Idaho's crystal ball was better than the Ninth Circuit's crystal ball. It wasn't a nice thing to say to the panel.

    (2) When Monte Stewart talked about New York "redefining marriage", he said that "New York doomed the institution of marriage" and then immediately regretted aloud the choice of the word "doomed" and replaced it with "severely undermined". In my view, that was one of the rare moments that showcased his candid and honest thoughts on the issue – there couldn't have been a more perfect display of animus, for all to see.

    (3) Both Reinhardt and Berzon referred to Judge Posner's opinion one or two times. And like the Seventh Circuit, the panel seemed much more comfortable taking the equal protection route with respect to sexual orientation discrimination (and Berzon seemed to independently also argue for sex discrimination, much stronger than Hamilton did during oral argument in the Seventh – I could smell a probable concurring opinion from her) rather than the due process fundamental right route.

    (4) Obviously we will have a 3-0 opinion. My predictions on the procedural stuff to follow: Latta will be affirmed and the mandate stayed pending disposition of a petition for writ of certiorari to the Supreme Court or until time to file such petition expires. Sevcik will be reversed and remanded to the lower district court and the mandate issued. The mandate, once issued, formally hands over jurisdiction back to the district court, and then the district court will be required to issue an injunction enjoining the State of Nevada from enforcing the marriage ban. All these procedures could take a while, so, ME in Nevada wouldn't necessarily be instantaneous. In Jackson, the appeal will be dismissed as moot, the lower district court's order vacated, and the mandate issued. The opinions in these three cases could all happen simultaneously, or one by one – that I'm not sure about.

    And now I must rest, and get back to work tomorrow 🙂

  • 4. Steve27516  |  September 8, 2014 at 9:57 pm

    Thank you, Raga!
    Great pic!

  • 5. RnL2008  |  September 8, 2014 at 10:08 pm

    I agree…it was great to see such wonderful folks fighting the same fight as we are……thank you all for being there and giving us your personal insights:-)

  • 6. SeattleRobin  |  September 9, 2014 at 4:13 am

    Thank you so much for the report. I love reading all the little details.

    One thing I'm wondering about. Maybe it's just part of normal procedure that I have somehow missed in all my reading here. You said the Nevada case would likely be remanded to the district court and they would issue an injunction. Is that normal procedure when a circuit overturns a district? I guess I thought the circuit court mandate was the final step.

    Thinking about it as I type, maybe I'm not used to that step because in the other cases, including Prop 8, the circuit was affirming the lower court. So the injunction was already written. It's just a frustrating extra step I wasn't prepared for. Still, it's great that Nevada won't have to wait for the Supreme Court.

  • 7. Roulette00  |  September 9, 2014 at 9:10 am

    My guess is that the Ninth is explicitly an appellate court and as such its powers are circumscribed to the power of review. I seem to recall this was of importance in Perry; Judge Walker's opinion had a great number of findings of fact, which the Ninth could accept or reject, but not reinterpret; and they were not open to holding a new trial or to accepting new evidence.

  • 8. Ragavendran  |  September 9, 2014 at 11:39 am

    I could be wrong (lawyers correct me if so), but I was going by the procedure that I've usually seen when an appellate court overturns a lower court. Usually, all they do is to say that the lower court was wrong to do X and it should have done Y instead, with an opinion explaining why. And then the final order/judgment/mandate only says that the lower court is reversed and the case is remanded back to the lower court for further proceedings taking into account the appellate court's opinion. I've not seen a case where an appellate court, in reversing a lower court's summary judgment, without remand, directly issued an injunction or order that granted the requested relief. That is a job for the trial court, and the appellate court usually "remands with instructions" that specify what needs to be done.

  • 9. JayJonson  |  September 9, 2014 at 6:07 am

    Thank you for being there and reporting so quickly, despite having to rush back to Colorado. Because of a family crisis (our dog had to have surgery), I was unable to watch the livestream live, so I especially appreciate your report. At some point, when you have had a chance to recuperate, please let us know the consequences of this Court, and more importantly SCOTUS, handing down a ruling invalidating bans on same-sex marriage on equal protection grounds but saying nothing about a fundamental right to marry. Or, as I understand the panel asked one of our attorneys, does it make any difference how we win?

  • 10. Ragavendran  |  September 9, 2014 at 11:47 am

    As far as the Ninth Circuit is concerned, I don't really see how it matters whether they decide the case based on equal protection or due process. We already have heightened scrutiny for sexual orientation on both avenues thanks to SmithKline and Witt, so we don't need additional precedent. IMHO, it doesn't matter how we win at the Ninth Circuit.

    As for the Supreme Court, it would be great if they tackle both the suspectness of our class as well as the fundamental right issue, but I doubt that they will. A favorable opinion that declares heightened scrutiny for sexual orientation and not discussing the fundamental right issue would be weaker for the marriage issue, but powerful and farthest-reaching in its implications for discrimination in issues beyond marriage. A fundamental rights based determination will be a much stronger in principle for the marriage issue, but it's scope will not be as broad. Pros and cons exist for both. Let's see what they do – ultimately, they might do neither and just decide on animus-based vague "careful consideration" review, which has the weakest potential of these three possibilities in terms of applicability for future discrimination-based litigation (the more specific the rationale, the less applicable it is to more general issues).

  • 11. DrPatrick1  |  September 9, 2014 at 6:31 pm

    I agree, SCOTUS will find a Windsor/Romer style review, which will be interpreted differently in different circuits. Judges like Reinhardt and Posner will interpret it broadly, and others will interpret it narrowly.

    If we can get a fundamental right/due process ruling, it will be used to try to extend marriage to other arrangements (polygamy) though I do not think that will be successful. Such a ruling will be of no help in GLBT cases in the future.

    An equal protection ruling is our strongest, most legally sound option. If based on simple rational basis, it would be a win, but would not help as much in the future (though one could argue if there isn't even a rational basis to discriminate based on marriage, then surely any GLBT discrimination should not survive this deferential standard.) Any clearly albedo heightened scrutiny finding would be most helpful in GLBT future discrimination cases.

  • 12. DoctorHeimlich  |  September 9, 2014 at 8:55 am

    I too noticed the multiple references to Posner. You could see the reverence he has among his colleagues: when they referred to the Utah, Oklahoma, and Virginia opinions, they talked about "the 10th Circuit" or "the 4th Circuit." But when they spoke of Wisconsin and Indiana, they spoke of "Posner."

    It goes to show what a boost Judge Posner gave to our side by releasing his opinion as quickly as he did. Not only did it ameliorate the sloppy, anti-gay opinion out of Louisiana from the day before, not only can it be persuasive to SCOTUS in general and Justice Kennedy in particular, but it clearly weighed in the minds of these Ninth Circuit judges (and might yet influence the Sixth Circuit judges too).

  • 13. RobW303  |  September 9, 2014 at 9:22 am

    Since the Nevada case will not be appealed, is it possible that clerks might begin issuing licenses after the ruling is posted but in advance of the mandate or injunction, either on their own or upon direction from the AG's office?

  • 14. Ragavendran  |  September 9, 2014 at 11:49 am

    Very possible. And if the State of Nevada (AG or Governor) instructs the clerks to do so, then there is no need for the mandate/injunction – that will just be a formality. But the State is not required to stop enforcing the ban until a formal injunction has been issued, which could take a while depending on the course of action.

  • 15. scream4ever  |  September 9, 2014 at 12:21 pm

    In California that former was the case when Perry was dismissed based on lack of standing.

  • 16. franklinsewell  |  September 9, 2014 at 12:30 pm

    The county clerk for Clark County Nevada refused to participate in the defense of the ban from the get go. However, I do not think she will start issuing licenses without some instruction from above.

  • 17. RemC_in_Chicago  |  September 10, 2014 at 7:11 am

    How wonderful to see that picture! Can you identify the various faces?

  • 18. Ragavendran  |  September 10, 2014 at 3:23 pm

    Sure. I don't remember the name of the bearded person, but the rest of them from left to right are as follows: Ann_S, davepCA, brandall, Kathleen, Ragavendran, Shelly & Ellen.

  • 19. Margo Schulter  |  September 8, 2014 at 11:04 pm

    Thank you, Ragavendran, for your usual insightful and engaging analysis to complement Jacob’s fine coverage! Post-Windsor especially, I wonder what Justice Kennedy would say about marriage being “doomed” in New York.

  • 20. Sagesse  |  September 9, 2014 at 3:39 am

    I was at work yesterday, and followed the comments sporadically, but I was able to watch the video yesterday evening.

    For me, Monte Stewart reached the height of arrogance when he raised his voice and interrupted and talked over Judge Gould. I'd be interested to know how it sounded from the courtroom… he didn't have to raise his voice much, as Gould speaks softly and haltingly because of his MS. Gould never did finish his thought. It was rude, and it was insulting to the judge and to the bench. Stewart may speak with suave (faux) sincerity, but the bully showed himself for a moment. I didn't see any reaction from Gould beyond perhaps consternation, or the other judges, but I hope in their ruling they bring on the full weight of… whatever they feel like bringing… on Monte Stewart's head.

  • 21. SeattleRobin  |  September 9, 2014 at 4:04 am

    I only saw the last part. I came in right before the ill considered "doomed" remark. But I saw Monte talk over the judges several times. The one you mentioned seemed to be the worst, but it wasn't the only time. I was really shocked. I don't recall any other attorney doing that in other hearings and oral arguments I've listened to. Usually as soon as a judge starts speaking the attorney immediately shuts up to listen to the question. What amazing arrogance.

  • 22. StraightDave  |  September 9, 2014 at 5:33 am

    Stewart even interrupted a question from Berzon at one point and she smacked him down, a little annoyed that she had to. He sure didn't win any style points yesterday

  • 23. HalPri  |  September 9, 2014 at 8:54 am

    From watching the video, I thought the judges could have been a lot more aggressive in questioning Stewart. He tried to snow them with terminology — bonding rights, genderless marriage, sending a message, two sticks. But underneath all of that was a claim that Idaho had a certain fear, namely that in a generation (but not right away!), some heterosexual males would decline to marry their pregnant girlfriends because state law had changed back in 2014. He put this forth as the rational basis, but no one asked him to say it in clear language, so its silliness would be obvious. Also, to be a rational basis, surely it has to be the reason for the law, and not something that some lawyer thought up in a conference room. And what if he had said that Idaho's fear was that the state would fall into a giant sinkhole? Is there a difference between those two arguments? Why is one fear rational and the other one not? I missed Judge Posner, but I guess he's one of a kind.

  • 24. RQO  |  September 9, 2014 at 10:42 am

    Maybe you nailed it (the deepest, darkest secrets exposed). pregnant girlfriends, yes, but maybe those nice Mormon boyfriends not quite so certain they really want to be herterosexual forever.Actually it's not funny, and it happens.

  • 25. StraightDave  |  September 9, 2014 at 9:05 am

    Does anyone recall hearing the word "Baker" yesterday? I didn't. That must be a first. But then again, my brain might automatically filter it out as useless background noise. You know it's truly dead when a conservative attorney on his last shaky legs doesn't even bother to try.

  • 26. Ragavendran  |  September 9, 2014 at 11:55 am

    I was surprised there was no discussion about Baker. It was an issue raised in the lower court in both Idaho and Nevada. In fact, the district court in Nevada relied on Baker to dismiss the case in part. I'm sure it will be addressed in the opinion though.

  • 27. RQO  |  September 9, 2014 at 9:29 am

    Well, I apologize for my rant about Monte Stewart yesterday, though thank you Terence for responding with another personal story about the very real and unhappy consequences of anti-LBGT legal prejudice on families. Frankly, Mr Stewart's presentation was useful. It clarified a lot of issues for me, and I hope the public at large.

    First, the idea that the State should determine children's "bonding rights" seems both odd and ominous.I don't see how this squares with law. Comments, please.

    Second, was very glad actual, practical, experience with ME/SSM seems FINALLY to be entering judicial discourse. Didn't Berzon mention Massachusetts?

    Third – thank God for the "good" Detroit judge Friedman and his trial record on Regnerus, et al. Bogus "studies" seem permanently off the map?

    Fourth – I am always struck by the absence of the word "LOVE" in legal proceedings. We may be squeamish, it may not be quantifiable, but it is central to the New Testament and our supposed Christian tradition, and you would think rather important to this issue. Way too existential for our legal system?

  • 28. NorthernAspect  |  September 9, 2014 at 9:45 am

    In Latta v. Otter, the Counsel for the plaintiffs posited that there were three recent 9th Circuit "administrative employment decisions" that have found both sexual orientation discrimination and sex discrimination, but that they weren't binding on "this Court". Why would they not be binding on this panel of the 9th circuit? Are "administrative employment" courts lower in hierarchy?

  • 29. ebohlman  |  September 9, 2014 at 1:27 pm

    Those decisions only apply to employees of the 9th Circuit, specifically in terms of eligibility for benefits.

  • 30. DrPatrick1  |  September 9, 2014 at 6:46 pm

    It was an employment issue decided by the Chief Justice. It was not a case before the 9th circuit. They dealt with internal matters in the 9th circuit. As a coequal branch of the government, the judicial branch operates along side the legislative and executive branch, and rules passed by one are not subject to review by the others. Thus, though the administrative rulings are not precedents and do not bind the court, they were carefully reasoned and their justifications are equally valid in these cases. Like talking about the other circuits rulings, they are not binding on the 9th, but the 9th can and should consider those opinions before ruling here.

  • 31. NorthernAspect  |  September 9, 2014 at 11:51 am

    During oral arguments, Judge Berzon made a comment questioning whether SmithKline was in fact specific and determinative regarding the level of scrutiny that applies to homosexuals as a class. This sounded odd to me.

    Wasn't SmithKline explicit in determining that heightened scrutiny applied to this class of persons?

    All the more startling was that she made this comment while sitting on a panel with Reinhardt, who actually wrote the SmithKline opinion!

  • 32. Ragavendran  |  September 9, 2014 at 12:00 pm

    My understanding of SmithKline is the same as yours – it did declare, outside of the context of the jury case, that sexual orientation is a class deserving of some form of heightened scrutiny, by carefully analyzing Windsor. Only after this determination did it get into the specifics of the jury case.

    That question was all the more odd because Berzon signed on to Judge Reinhardt's opinion in SmithKline. Perhaps she meant, is there a difference in inferring heightened scrutiny by carefully analyzing an indirect Supreme Court opinion as opposed to directly applying the Cleburne four-factor test (as is the norm)?

  • 33. NorthernAspect  |  September 9, 2014 at 12:10 pm

    Wow, very curious. I didn't realize Berzon had signed on that judgment.

    It was a very strange interaction between Berzon and Reinhardt, with Berzon wondering aloud whether heightened scrutiny applied and with Reinhardt reminding counsel (and Berzon really) that SmithKline was binding on the Court.

    On another level it sounds even strange that they talk about SmithKline in the third person as some detached come-from-above precedent when one wrote and the other signed on to that decision.

  • 34. Ragavendran  |  September 9, 2014 at 12:15 pm

    Yes, Judge Reinhardt's opinion in SmithKline is the Ninth Circuit's opinion on SmithKline and I think it is customary for the judges to refer to their own past opinions as the Court's opinions, and not "my opinion". This custom may be because they do not want to come across as biased because they wrote or signed on to the previous opinion, and that they treat all Ninth Circuit opinions equally.

  • 35. DrPatrick1  |  September 9, 2014 at 6:55 pm

    I look at this differently. I took that as her reminding ID counsel that whatever he may think of SmithKline, it is binding on the 9th. It is his job to distinguish his case from the precedent in order to obviate the need to rely on it. I understood that as an attempt by her to say, "really, I truly want to give your side a fair shake, but just to even give you a chance, you really need to tackle this precedent. So far, you are losing your case, and I don't see anyway around that. Can you help a sister out?"

    To which Reinhardt offered, "Oh puh-lease! This dude lost before he entered the court. There is no way this inept David is gonna even try to take down the Goliath. Let's just nip that in the bud right now!"

  • 36. Ann_S  |  September 9, 2014 at 7:00 pm

    Yes, exactly. It was like a coded conversation among them. They all knew exactly who had authored what and what they thought it meant.

  • 37. Ragavendran  |  September 9, 2014 at 10:12 pm

    Ah, but the SmithKline discussion that NorthernAspect is referring to, took place during the plaintiff attorney's turn (around minute 58 in the video). I don't recall SmithKline even making an appearance during the Idaho portion of Monte Stewart's argument.

  • 38. Ragavendran  |  September 9, 2014 at 9:53 pm

    On rewatching that segment, it occurs to me that what Judge Berzon meant is that SmithKline only goes so far as to say that some form of heightened scrutiny applies to sexual orientation based discrimination. Whereas, for sex, it is clear that intermediate scrutiny applies. So the level of scrutiny for sex could be possibly higher than the one for sexual orientation is what she meant there.

  • 39. NorthernAspect  |  September 9, 2014 at 11:58 am

    As a general comment: the oral arguments re: same-sex marriage in the 7th Circuit Court of Appeals were much more entertaining. I found counsel for both sides of the 9th Circuit Cases to be lack in speaking technique and style, and the judges on the panel themselves were not too articulate in the questions and challenges they posed to counsel.

  • 40. franklinsewell  |  September 9, 2014 at 12:22 pm

    I must disagree. I found Tara Borelli's style and technique quite outstanding, and I felt blessed that she was arguing against the ban in Nevada, my state.

  • 41. Chuck_in_PA  |  September 9, 2014 at 2:10 pm

    I agree, she's a bright, articulate young lawyer who may someday be an excellent Federal Judge, if our next Democratic president is paying attention.

  • 42. Asociación para la Defen&hellip  |  September 27, 2014 at 9:01 am

    […] In muted arguments, Ninth Circuit panel appears to lean towards pro-marriage equality position (Jacob Combs, Equality on Trial) […]

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