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States' Arguments Against Gay Marriage Unsurprisingly Unconvincing

By William Peacock, Esq. on September 09, 2014 | Last updated on March 21, 2019

Yesterday, a three-judge panel of the Ninth Circuit heard the long-awaited arguments in same-sex marriage cases out of Idaho, Nevada, and Hawaii. And if you were expecting anything other than downright skepticism of states' arguments from the judges, well, you haven't been paying attention.

Monte Neil Stewart was the primary recipient of the judges' questions. The private attorney first represented Idaho, then pinch hit in Nevada's case for intervenors, since the state declined to defend its laws in the wake of the Ninth Circuit's Smithkline Beecham v. Abbot Labs ruling.

Barring some sort of divine intervention, the liberal three-judge panel is pretty much guaranteed to follow the Tenth, Fourth, and Seventh Circuits' leads and rule in favor of gay marriage in all three states.

Oral Arguments Video and Recap

If you missed the live stream, and want to witness a one-sided game, here's the two-and-a-half hour video of the three states' arguments, starting with Idaho's outright ban on everything (including civil unions), continuing with an intervenor's defense of Nevada's laws, and finishing up with Hawaii, where the state legislature has already approved gay marriage. (We assume this challenge is in case they change their minds.)

The primary argument, one that we've heard repeatedly from opponents of same-sex marriage, is that the bans promote and protect heterosexual unions, which are better for children, according to a recap by the Spokesman-Review.

Judge Marsha Berzon was skeptical of the argument, stating that "the train has left the station" because "the change has occurred in American marriages before all this."

"When women were not able to own property and had to do everything their husbands said and so on, you had a different institution, but that was the core of the heterosexual marriage tradition to begin with. Once all of that changed, yes, the number of people who had children in marriage went down considerably, and that may be a bad thing, but it did not have anything to do with this," she stated.

Deborah Ferguson, who represents challengers to the law, argued that "There is no logical nexus here. Allowing same-sex couples to marry will benefit them and those children."

She also noted that Idaho's ban was the most strict in the Ninth Circuit, barring domestic partnerships and civil unions, and that it affected couples even after death -- the Idaho Veterans Cemetery won't bury same-sex couples next to each other.

Overall, it appears to have been a losing fight for Stewart and the three states that were defending their bans. Hilariously, Stewart, after representing Idaho, also represented Nevada. Twice, he referred to the former state when arguing on Nevada's behalf, drawing corrections from Judges Stewart and Gould.

Stewart responded: "This is a lesson to all counsel not to do back-to-back arguments."

Foregone Conclusion

As we noted in our preview, this case is all-but-over already. Not only did the case draw a panel of three liberal judges, but one of the primary legal issues in the case -- whether heightened scrutiny applies to laws that discriminate based on sexual preference -- has already been decided by the court in the aforementioned Smithkline Beecham.

Tack on the three appeals courts' opinions that have already ruled against gay marriage bans, and the real question is this: Will the Ninth Circuit beat the Seventh Circuit's nine-day turnaround for its own same-sex marriage ruling?

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