And 2 More: 9th Cir. Strikes Idaho, Nev. Gay Marriage Bans

It's here folks, and it's exactly as expected: In a joint opinion for Latta v. Otter (from Idaho) and Sevcik v. Sandoval (from Nevada), the Ninth Circuit has struck down Idaho and Nevada's gay marriage bans, citing its own precedent from the SmithKline gay juror case:

We hold that the Idaho and Nevada laws at issue violate the Equal Protection Clause of the Fourteenth Amendment because they deny lesbians and gays who wish to marry persons of the same sex a right they afford to individuals who wish to marry persons of the opposite sex, and do not satisfy the heightened scrutiny standard we adopted in SmithKline.

Now that we've spoiled the non-surprise, let's get to the meaty preliminary issues of jurisdiction and the effect of a decades-old Supreme Court order which, really, were the only true undecided issues left in this case.

Was There an Article III Case or Controversy in Nev.?

The Ninth Circuit says "yes," but we're not so sure.

Think back to Perry and Windsor. One had jurisdiction. One didn't. Both had third parties pinch-hitting for the government. Perry got kicked because the private third parties had no official capacity, while Windsor survived because conservative federal congressmen stepped in to defend the law.

That's why we thought the case was all but over when Nevada backed out.

But by remaining parties to the case, and continuing to enforce the law, today's opinion notes that there is still an issue in need of resolution -- justifiability is preserved, as it was in Windsor.

The third party here is Coalition to Protect Marriage, which pushed for the amendment via popular vote, but otherwise has no official capacity, just like the third-party organization in Perry.

And yet, Judge Stephen Reinhardt held that this is a situation "akin to that in Windsor," and notes that the Coalition's briefs will ensure that there is no kangaroo court with nobody arguing to defend the laws. (Here's to you, Oregon!)

Again, we're not so sure that the case wasn't mooted by Nevada's departure, but in the end, who's going to appeal Judge Reinhardt's one-paragraph treatment of a very complicated issue? The Coalition? The plaintiffs who conceded to them being there? Nevada, which just wants this to be over with?

Does Baker v. Nelson , 409 U.S. 810 (1972), Control or Preclude Review?

This one is a bit less complicated. Many states have argued that the Supreme Court's one-liner in Baker, where the Court dismissed a challenge to Minnesota's gay marriage ban "for want of a substantial federal question," precludes lower courts from saying that, four decades later, there is a federal question.

Judge Reinhardt cited a trio of gay rights cases (Windsor, Lawrence, and Romer), all of which are SCOTUS cases that show that, yes, there is an equal protection federal question here. He also cites the three other appeals courts that have heard and dismissed this argument before summing it up nicely: "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."

Anything Else of Note?

Sure. All of the now-familiar arguments about heterosexual marriages promoting responsible procreation and happier children were heard and dismissed by the court, as they were by every other court. In fact, there wasn't really anything novel in the merits discussion.

But Judge Reinhardt did write a separate concurrence to his own opinion where he first stated that he "would also hold that the 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.

"As a result," he continued, "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."

And because the states' arguments were so inadequate, Judge Reinhardt would have found a substantive due process violation as well.

Did I say we were done? Nope. Judge Marsha Berzon wrote separately to express her opinion that these bans were "classifications on the basis of gender that do not survive the level of scrutiny applicable to such classifications."

Equal protection. Due process. Gender classifications. Sexual preference discrimination (as understood in SmithKline). One more reason and we'll have bingo!

What About Hawaii (Which Was Argued Alongside Idaho, Nev.)?

That's an interesting question. It was interesting, to begin with, that the Hawaii appeal continued after that state legalized gay marriage, and despite the parties' agreement that the case was moot. It may have had something to do with that fact that it was done legislatively under the odd 1998 amendment that allows state lawmakers to "reserve marriage to opposite-sex couples," which they did, until last year.

Hawaii obviously wasn't included in today's decisions, and the first footnote says that we'll hear something sometime soon -- perhaps a decision addressing the odd amendment, or perhaps one agreeing that the issue is moot.

Related Resources:

• Latta v. Otter, Sevcik v. Sandoval (Ninth Circuit)
• States' Arguments Against Gay Marriage Unsurprisingly Unconvincing (FindLaw's U.S. Ninth Circuit Blog)
• SCOTUS Starts Bullying Early, Reverses 9th in Habeas Appeal (FindLaw's U.S. Ninth Circuit Blog)