SAN FRANCISCO - Gay marriage bans in Nevada, Idaho and Hawaii faced tough questions on Monday from a US appeals court that waded back into a civil rights debate sweeping through courthouses across the country.
The 9th US Circuit Court of Appeals in San Francisco heard arguments on whether judges in Nevada and Hawaii were correct to uphold those states' gay marriage bans. Hawaii's legislature subsequently voted to allow same-sex nuptials, while a federal judge struck down Idaho's gay marriage prohibition.
Stephen Reinhardt, the 9th Circuit judge who previously struck down California's gay marriage ban in 2012, was one of three judges reviewing the latest cases on Monday. The other two 9th Circuit judges, Marsha Berzon and Ronald Gould, have also previously voted to expand gay rights.
Monte Neil Stewart, the attorney defending bans in Nevada and Idaho, argued that same-sex marriages would lead to lower marriage rates over time. Marriage restrictions are not motivated by hatred towards gay people, he said, and would not affect laws allowing gay couples to adopt children. "But in second rate families," Berzon said. "We don't really accept that rhetoric," Stewart said. "But you do. That's the whole point of your rhetoric, it's to send a message that these are second class families," Berzon said.
A total 19 of the 50 states and the District of Columbia allow same-sex marriage. Last year, the US Supreme Court invalidated a portion of the Defence of Marriage Act known as DOMA that limited federal benefits to heterosexual couples.
Since then, more than 30 federal and state judges have ruled against same-sex marriage bans. The Nevada and Hawaii opinions came before the US Supreme Court weighed in on DOMA.
If the Supreme Court takes up the issue, the dispute would likely be heard in early 2015, with a decision by the end of June. Justice Anthony Kennedy, the Supreme Court swing vote who authored the DOMA opinion, loomed large in court on Monday. "We all know this is going to be decided one step up,"Stewart said. "And we all know by whom!" said Reinhardt, to laughter.
Reinhardt wrote another opinion in an unrelated case earlier this year that further heightened constitutional protections for gays and lesbians. That led Nevada's governor and attorney general to promptly cease defending Nevada's marriage ban, writing that Reinhardt's decision meant support of gay marriage restrictions "cannot withstand legal scrutiny." In court on Monday, Gould said the 9th Circuit is now bound to apply those heightened constitutional protections to the gay marriage debate.
Hawaii's governor, who supports gay marriage, argues that state's case is moot given the state now allows same sex weddings. However, gay marriage opponents asked the 9th Circuit to hold off on a ruling until a challenge to Hawaii's new marriage laws is decided in state court.