Tuesday, the U.S. Court of Appeals for the Ninth Circuit struck down marriage equality bans in Idaho and Nevada. The ruling comes just a day after the U.S. Supreme Court declined to hear the appeals of five states that struck down similar bans.
The Supreme Court’s decision to steer clear, in application, expands the right for same-sex couples to marry to include 24 states, with other states poised to join them. Their preference to deny taking any of the cases suggests that they’d prefer waiting to see if any of the outlying circuit courts (the Sixth U.S. Court of Appeals in Cincinnati or the Fifth U.S. Court of Appeals in New Orleans) uphold such a ban, forcing intervention from the high court. States under the jurisdiction of circuit courts that have struck down bans will have to independently ask a court within those states to apply the broader circuit-court ruling, according to the Wall Street Journal.
This coming Friday, Hamby v. Parnell — the suit challenging Alaska’s constitutional amendment defining marriage as between one man and one woman — will be heard by U.S. District Court Judge Timothy Burgess. Alaska is within the jurisdiction of the Ninth Circuit.
Defending the constitutional ban, enacted by voters in 1998, Alaska Attorney General Michael Geraghty (and assistant attorneys general William Milks and Kevin Wakley) penned their opposition to the suit in late September. They hinged the viability of the ban on seven points, all of which were addressed in Tuesday’s Ninth Circuit ruling.
Geraghty referenced the Supreme Court decision in United States v. Windsor — a 2013 ruling which held that restricting the federal interpretation of “marriage” and “spouse” to apply to only opposite-sex couples violated the Due Process Clause of the Fifth Amendment. Geraghty opined that “The decision in United States v. Windsor does not compel a finding in favor of the plaintiffs; instead, it supports Alaska’s right as a sovereign state to define marriage.”
He emphasized “the primacy of voters’ right to decide important and sensitive public policy matters such as the definition of marriage” and alleged that court action was akin to “judicial policy making.”
The state of Idaho and Nevada’s Coalition for the Protection of Marriage held similar contentions. Ninth Circuit Court Judge Reinhardt disagreed, writing in the opinion for the court: “Each state ‘has an undeniable interest in ensuring that its rules of domestic relations reflect the widely held values of its people,'” he wrote, referencing Zablocki v. Redhail (1978).
“[A] primary purpose of the Constitution is to protect minorities from oppression by majorities,” he said. “As Windsor itself made clear, ‘state laws defining and regulating marriage, of course, must respect the constitutional rights of persons….’ Thus, considerations of federalism cannot carry the day for defendants. They must instead rely on the substantive arguments that we find lacking herein.”
The Alaska Department of Law also shares Idaho’s belief that a previous Supreme Court case in Baker v. Nelson (1972) set precedent dictating that challenges to same-sex marriage bans should be dismissed. In that case, the Minnesota Supreme Court ruled that state law, which at the time limited marriage to opposite-sex couples, did not violate the U.S. Constitution (Minnesota legalized same-sex marriage last year), and should only be adjudicated under the rational basis test (the lowest level of scrutiny applied by courts).
“In making that decision,” Geraghty, Milks, and Wakley asserted, “the Court ruled that the matter should be dismissed because it did not raise a substantial federal question.”
Geraghty also echoed Idaho’s claim that there is no “fundamental right to same-sex marriage under the Due Process Clause of the Fourteenth Amendment.
“Three other circuits have issued opinions striking down laws like those at issue here since Windsor, and all agree that Baker no longer precludes review,” Reinhardt countered. “As any observer of the Supreme Court cannot help but realize, this case and others like it present not only substantial but pressing federal questions.”
[T]he fundamental right to marriage, repeatedly recognized by the Supreme Court… is properly understood as including the right to marry an individual of one’s choice. That right applies to same-sex marriage just as it does to opposite-sex marriage. As a result, I would hold that heightened scrutiny is appropriate for an additional reason: laws abridging fundamental rights are subject to strict scrutiny, and are invalid unless there is a “compelling state interest” which they are “narrowly tailored” to serve…. Because the inadequacy of the states’ justifications has been thoroughly addressed, I write only to explain my view that the same-sex marriage bans invalidated here also implicate plaintiffs’ substantive due process rights.
Geraghty singled out the landmark Supreme Court case Loving v. Virginia, which has been referenced in multiple court rulings striking down marriage equality bans. He offered that Loving was a “race case” that does not immediately lend itself to the contention that “a state’s adoption of the traditional definition of marriage is unconstitutional.”
Reinhardt responded to similar assertions from Idaho and Colorado’s Coalition for the Protection of Marriage as “a rhetorical stroke as uncomprehending as it is unavailing.”
Loving itself squarely rebuts this argument. Mildred Jeter and Richard Loving were not barred from marriage altogether. Jeter was perfectly free to marry a black person, and Loving was perfectly free to marry a white person. They were each denied the freedom, however, to marry the person whom they chose— the other. The case of lesbians and gays is indistinguishable. A limitation on the right to marry another person, whether on account of race or for any other reason, is a limitation on the right to marry.
He elaborated, noting that the “traditional definition of marriage” is fluid, even when limited to its history in the United States. “[W]ithin the past century, married women had no right to own property, enter into contracts, retain wages, make decisions about children, or pursue rape allegations against their husbands,” he wrote. “Both Idaho and Nevada’s marriage regimes, as they exist today, bear little resemblance to those in place a century ago. As a result, defendants cannot credibly argue that their laws protect a… ‘traditional institution’; at most, they preserve the status quo with respect to one aspect of marriage — exclusion of same-sex couples.”
Allison Mendell, Heather Gardner, and Caitlin Shortell are attorneys representing the plaintiffs in Hamby. They reject Geraghty’s defense, telling the Fairbanks Newsminer that the state’s approach has been “tried and rejected by courts in other parts of the country.” The Los Angeles Times took it a step further, describing the state’s arguments comparable to using “the Jim Crow approach to defending its gay marriage ban.”
Reinhardt’s ruling, while it doesn’t use the same verbage, clearly expresses at least a certain level of agreement. The 95 page ruling thoroughly untangles Alaska’s stated defense of the constitutional ban, and comes from the circuit with jurisdiction over Alaska.
The Alaska Department of Law says they planned to meet to “review the opinion,” per the Alaska Dispatch News, and Amanda Coyne cites that they still plan on arguing the case, set for Friday afternoon at the Federal Courthouse in Anchorage.