Following the US Supreme Court’s decision Monday to decline review of three federal appeals courts’ decisions striking down same-sex marriage bans in five states, the Ninth Circuit Court of Appeals on Tuesday struck down same-sex marriage bans in Idaho and Nevada, bringing the number of states in which same-sex marriage bans are effectively null and void to 35.
Monday’s decision by the Supreme Court immediately expanded the number of states were same-sex marriage is legal from 19 to 24. At issue was whether the Supreme Court would review decisions from the US Courts of Appeal for the the Fourth, Seventh, and Tenth Circuits striking down marriage bans in Oklahoma, Utah, Virginia, Indiana, and Wisconsin. The Court refused, immediately making same-sex marriage legal in those states. However, the decision also effectively ended bans in six additional states falling under those three circuits – Colorado, Kansas, West Virginia, North Carolina, South Carolina and Wyoming – bringing the total number of states where same-sex marriage would be legal to 30.
Following the news, Mary Bonauto of Gay & Lesbian Advocates & Defenders (GLAD) said that the Supreme Court had sent “a powerful signal to the many other courts considering the issue that there is no reason to delay and perpetuate the harms to same-sex couples around the nation.”
Just one day after the Supreme Court issued its order, the Ninth Circuit ruled that same-sex marriage bans in Idaho and Nevada were unconstitutional. This ruling is the law of the land in that Circuit, which means that same-sex marriage bans in Alaska, Arizona, and Montana – which are all subject to legal challenges in federal courts – are also set to fall. In total, 35 states are now expected to soon allow same-sex marriages.
The three-judge panel of the Ninth Circuit unanimously found that the marriage bans denied same-sex couples equal treatment under the law. Judge Marsha Berzon also wrote separately that the bans were a form of unlawful discrimination based on gender. Judge Berzon compared same-sex marriage bans to “laws that strip individuals of their rights or restrict personal choices or opportunities solely on the basis of the individuals’ gender” and found that the bans were impermissibly based in gender stereotypes. Such laws, wrote Berzon, “are damaging because they restrict individual choices by punishing those men and women who do not fit the stereotyped mold.” She concludes, “The same-sex marriage prohibitions, in other words, impose harms on sexual orientation and gender identity minorities precisely because they impose and enforce gender-normative behavior.”
Nevada is not expected to appeal the Ninth Circuit decision. Idaho may seek Supreme Court review, though given Monday’s decision, review is unlikely. It may also ask the full Ninth Circuit to review the decision.
Three other federal circuit courts of appeal are currently considering the constitutionality of state same-sex marriage bans. If one of these courts were to rule in favor of a ban, the Supreme Court could once again be asked to weigh in, and might be more likely to do so. The circuits are the Sixth, with challenges in Ohio, Kentucky, Michigan, and Tennessee; Fifth, with challenges in Louisiana and Texas; and Eleventh, with challenges in Alabama, Florida and Georgia. Lower federal courts in the Eighth Circuit are also considering same-sex marriage bans in Missouri, North Dakota, and South Dakota.
Media Resources: SCOTUSblog 10/7/14, 10/6/2014; National Center for Lesbian Rights 10/6/14; USA TODAY 10/6/2014; US Court of Appeals for the Ninth Circuit