Issue:  Vol. 48 / No. 7 / 15 February 2018

Judges express doubt
on marriage bans


Plaintiff couples from Idaho stood outside the 9th U.S. Circuit Court of Appeals following oral arguments Monday and included, from left, Andrea Altmayer and Shelia Robertson; Sharene and Lori Watsen; Kate Kendell, executive director of the National Center for Lesbian Rights; Traci Ehlers and Sue Latta; and Rachel and Amber Beierle. Photo: Bill Wilson
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A panel of federal judges in San Francisco often appeared perplexed as to why same-sex couples shouldn't be allowed to marry as they heard oral arguments this week concerning three states' marriage bans.

Regardless of what the three-judge panel of the 9th U.S. Circuit Court of Appeals decides in the Idaho, Nevada, and Hawaii cases, some acknowledged that the issue of marriage equality is likely headed to the U.S. Supreme Court.

Attorney Monte Neil Stewart, who defended Idaho and Nevada's anti-gay laws in Latta v. Otter and Sevcik v. Sandoval, respectively, in court Monday, September 8, said Idaho has a "compelling" interest in banning marriage equality because same-sex marriage "undermines and weakens the social expectation of the child's 'bonding right,'" a phrase he repeated frequently. Stewart insisted children should be raised in homes with a mother and a father.

Judge Marsha Berzon told Stewart he had to "demonstrate why" same-sex relationships "interfere" with the types of unions he regards as "optimum."

"Heterosexual men and women aren't going to enter into same-sex marriages, so what's the issue?" Berzon said.

Stewart said the "only way" a same-sex couple can be married "is for the state to withdraw its support" for heterosexual couples and institute what he repeatedly referred to as "genderless marriage." But Berzon asked, "What is the actual difference?" between the two relationships.

Allowing same-sex marriages would send the message that fathers (and mothers) aren't "valued or necessary" in all relationships, and Idaho was making the "sensible prediction" that men "will weaken in their commitment to abide by the child's bonding norm" if the state permitted marriage equality, Stewart said. He also said there would be an increase in "fatherlessness."

Berzon suggested Stewart's ideas of the model family amounted to sex discrimination, which he denied. For example, she said, "You can't not hire mothers because the mother should be home with the kids," and she added, "prescriptive gender roles" have been "unraveling."

She also asked whether children of same-sex couples "could be worse off" because of their families being denied many state and federal benefits.

Judge Stephen Reinhardt also expressed strong doubts about Stewart's arguments, asking him about prohibiting divorce, since that does "more damage to the ideal you profess."

Stewart said, "Idaho has learned a hard lesson from" its "no-fault" divorce rules, but if marriage equality is allowed, "We think the effects will be much more severe."

In the Nevada case Berzon told Stewart, "The whole point of your rhetoric" is that same-sex couples are "second-rate families." Stewart disagreed, but Berzon asked whether his "entire argument" was "to send a message to people they should be in these heterosexual marriages and not otherwise?"

Stewart said that the "message" of the "stable, committed relationship known as marriage" is "not the message of genderless marriage."

Reinhardt indicated if the concern was a lack of stability and commitment among same-sex couples, then Nevada should allow them to marry.

Judge Ronald Gould, who appeared via a video feed from Seattle, didn't have many questions for attorneys Monday, but he was curious where Stewart had gotten his oft-repeated saying.

"Where does the phrase 'bonding right' get its derivation?" Gould asked. "... I don't think it's in the Constitution's Bill of Rights."

Stewart said it was just "a good shorthand phrase."

The Idaho case, Latta v. Otter, stems from a lawsuit filed in November 2013 by four same-sex couples challenging the state's laws prohibiting same-sex marriage. In May, Chief U.S. Magistrate Judge Candy W. Dale ordered the state of Idaho to allow same-sex couples to marry and to recognize the marriages of couples who married in other states. Idaho Governor Butch Otto then appealed to the 9th Circuit. The couples are represented by attorneys Deborah Ferguson and Craig Durham and the National Center for Lesbian Rights.


Pro-LGBT attorneys critical

In court, Ferguson, who argued against Idaho's ban, also questioned Stewart's claims of being concerned for children. Ferguson said that there wasn't any point in the history of the legislation banning marriage equality where the "for the children" argument had been raised, and it was a "post-hoc argument" that had been added for the litigation fight.

Stewart wasn't able to produce any evidence to the contrary.

"Idaho has the most sweeping and draconian same-sex marriage ban in the 9th Circuit," Ferguson said, adding the state doesn't even allow same-sex domestic partnerships for the sole purpose of treating couples "unequally" and relegating them "to a second-class status."

Idaho's ban tells the children of same-sex couples their parents' unions "aren't worthy of respect," she said. She also said Stewart's "fear" that allowing same-sex marriages would "be the fall of the institution of marriage" hasn't been the reality of the 19 states and the District of Columbia where such unions are legal.

Ferguson added there must be a "heightened level of scrutiny," invoking the 9th Circuit's January ruling in GlaxoSmithKline v. Abbott Laboratories. In that case, where judges ruled that LGBTs couldn't be excluded from federal juries based solely on their orientation or gender identity, the panelists said that heightened scrutiny must be applied in such cases involving discrimination.

After the court announced that ruling earlier this year, Nevada Attorney General Catherine Cortez Masto dropped her defense of the state's marriage ban, and Governor Brian Sandoval has also abandoned it. The anti-gay group Coalition for the Protection of Marriage is intervening in support of the ban.

Tara Borelli, senior attorney for the national Lambda Legal Defense and Education Fund, said Nevada's anti-gay law sends the message that families headed by same-sex couples are "inferior."

Borelli said the "only effect" of the anti-gay law "is on same-sex couples. It has no effect on different-sex couples," and it's "wholly illogical to believe" that gay and lesbian couples marrying would impact other couples, she said.


Supreme Court future

Whatever the 9th Circuit panel decides, the issue of marriage equality is widely expected to be taken up by the U.S. Supreme Court, perhaps as early as the next term, which starts in October. In June 2013, the court struck down a key section of the Defense of Marriage Act, which prohibited federal recognition of same-sex marriage, and essentially killed California's Proposition 8 same-sex marriage ban on a technicality. However, the court didn't make any decision on whether same-sex couples should be allowed to marry in every state.

At one point Monday, Stewart brought up Supreme Court Justice Anthony Kennedy's stance in a different lawsuit. Kennedy has frequently been the court's swing vote.

Reinhardt told him, "I think you're going to have an opportunity to find out what Justice Kennedy really thinks," eliciting laughter from the packed courtroom.

Stewart replied, "We all know this is going to be decided one step up."

"And we all know by whom," Reinhardt said.

Outside the Seventh Street courthouse, Lori and Sharene Watsen, of Boise, Idaho, were among the plaintiff couples who gathered after the hearing. The couple married in New York in 2011.

Lori Watsen, 40, said, "I think we have a very strong case." She added, "People understand more and more that family is family and love is love," and "I think the important thing for children is to have parents who love each other ... and who do what's best for their child." She and Sharene Watsen, 34, have a 15-month-old son.

Susan Latta, of Boise, who married Traci Ehlers in California in 2008, said that while listening to the arguments, "I was thinking, 'We're people, too. We're people just as valid as every other couple," and she feels "very positive" about their chances.


Hawaii case

The Hawaii case, Jackson v. Abercrombie, stems from same-sex couples suing for the right to marry. The state has enacted a marriage equality law, and pro-LGBT attorneys are asking for the couples' lawsuit to be dismissed. However, the anti-gay group Hawaii Family Forum is fighting the attempt.

All three judges have ruled favorably in recent 9th Circuit cases involving LGBT rights. Reinhardt wrote the majority opinion in the aforementioned SmithKline v. Abbott and was joined by Berzon. Reinhardt also wrote the majority opinion in Hollingsworth v. Perry, ruling that California's Proposition 8 was unconstitutional. Gould wrote the majority opinion in Witt v. Department of the Air Force, which ruled that the discharge of a lesbian from the military because of her relationship with another woman was unconstitutional.

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