Ninth Circuit Panel Eviscerates What’s Left of Anti-Equality Arguments: A Summary and Analysis

BY ARI EZRA WALDMAN

A soft-spoken attorney representing Idaho started his state's anti-marriage equality argument by suggesting that allowing gays to marry violates the "bonding right" of children that they will be raised by their biological mothers and fathers. It took Judge Marsha Berzon just 15 seconds to ask her first question: "What is that word you're using before 'right'"? Judge Berzon can hear just fine; it's just that she had never heard anyone make such a ridiculous claim before today. The rest of the hearing followed similarly.

Judge Stephen Reinhardt, a Carter-appointee and liberal leader of the appellate courts, was joined by Judge Berzon, a sharp-minded progressive appointed by President Clinton, and Judge Robert Gould, another Clinton appointee, in a nearly two-hour long interrogation of attorneys from Idaho and Nevada that may not have been as bombastic as Judge Posner's treatment of attorneys from Wisconsin and Indiana in the Seventh Circuit, a hearing which resulted in a marvelous unanimous victory ("Go figure!"), but was every bit as damaging to the forces opposed to marriage equality.

It also brought marriage equality full circle. Judge Reinhardt was the judge that wrote the first decision from a federal appellate court on marriage equality, affirming District Judge Vaughn Walker's pioneering rejection of California's Prop 8. We all know how that case turned out.

And we know what's happened since: a Supreme Court decision in United States v. Windsor striking down the Defense of Marriage Act and a long streak of pro-marriage equality decisions from the lower federal courts, including several appellate courts.

Yesterday's hearing reminded us how far we have really come. Some of the arguments and much of the tone were different this time around. The judges' questioning was direct and they expressed a similar, though less visible, frustration with the misdirection and misleading statements from the anti-equality attorneys as Judge Posner. The tone of the hearing suggested that marriage equality supporters are finally out of the closet, following a tidal wave of an emerging consensus of the legitimacy and morality of marriage freedom for all.

A summary and analysis follows AFTER THE JUMP…

This is not the first time marriage equality came before the Ninth Circuit. In fact, it was Judge Reinhardt (right) who, along with two other judges, heard the appeal of the Prop 8 decision and after a delay involving the Supreme Court of California, issued a narrow decision affirming Prop 8 unconstitutional. The decision was limited to California because it argued that the reason why Prop 8 was unconstitutional was not because banning gays from marrying in general violated the Equal Protection or Due Process Clauses, but rather because the taking away of rights, as Prop 8 did after the California Supreme Court mandated equal marriage in In re Marriage Cases, violated the rights of gay Californians. The decision's narrowness was based on pretzel-like reasoning, but makes sense in context: as I argued before, Judge Reinhardt wanted to offer the Supreme Court a way to support marriage equality without going too far ahead of public opinion.

Today, there is no such concern. It makes sense that the argument–and the decision–would sound different.

Judge Berzon asked the most direct questions, sifting through the muck of Idaho's nonsensical argument about children needing to be raised by their biological parents.

"But heterosexual men and women aren't going to enter into same-sex marriages. So, what's the issue?" she asked. Indeed. Idaho was trying to avoid the reality that what the state wants to do is not really create a situation where kids are raised by their biological moms and dads, but just ban gays from marrying. These are two very different and clearly unrelated things.

But the message of the man-woman marriage is that we need to create a stable bond that is in the best interests of the child, argued the Idaho attorney. Huh, Judge Berzon wondered. How is it, she asked, supportive of stable marriages and a benefit to children to have them raised outside of supportive same-sex marriages rather than inside supportive same-sex marriages?

After several agonizing stutters: The worst thing the state can do to undermine the message of stability is to create something new–namely, "genderless marriage."

With that, Judge Berzon had it. She called out Idaho on its argument that man-woman marriages provide the added benefit of complementary parenting styles and skills, an argument that is not only sexist and based on traditional notions that women nurture and men discipline, but also a completely unconstitutional basis for discrimination.

She also called Idaho out on its back-handed and insulting suggestion that "we hope the studies that show equal outcomes" of children raised in same-sex and opposite-sex households are valid, even though "Idaho remains skeptical," by noting that Idaho's policy of banning gays from marrying quite literally makes children of same-sex couples worse off by denying them benefits and the protection of marriage.

The greatest, and most revealing, line came during Idaho's rebuttal, in which Judge Berzon brought up the parallel of Loving v. Virginia, the 1967 case that outlawed bans on interracial marriage. As we all know, similar arguments were raised by Virginia: we just don't know what will happen, we worry for the children of mixed-race couples, those households will be unstable, the verdict is out on whether they are good parents, and the state has debated and made the decision, though the democratic process, to ban the prospect. Idaho's attorney denied that those debates ever happened, suggesting that the state never advanced a legitimate justification for banning interracial marriage. Judge Berzon reminded him how wrong he was. The level of willful blindness, ignorance, and pure distaste for gays that this attorney must have had to have the balls to misstate history like that is just beyond belief.

This was the first difference: Judges are willing to call out the anti-equality side on their bald lies and misleading statements.

Tara Borelli, of Lambda Legal, took the podium on behalf of Nevada's same-sex couples (Deborah Ferguson, a private attorney, represented the Idaho plaintiffs and did a fine job) and delivered the arguments with which we have become quite familiar. The difference between Ms. Borelli's arguments before the Ninth Circuit and the last arguments before the circuit on a gay marriage case from Ted Olson and David Boies was that Ms. Borelli had Windsor at her disposal. She referenced the Supreme Court decision many times, ultimately noting that the decision wipes away every state rationale for the ban.

Ms. Borelli also had a classic line, typical of our post-Windsor world. When Judge Reinhardt asked her to respond to Idaho's argument that a pro-equality decision would send a message to children that men (or women) aren't necessary for a stable household, Ms. Borelli stated flatly: "That's not even a legitimate interest in any state." Boom.

Judge Gould highlighted the third difference between this argument and the last Ninth Circuit argument. If you recall, the Ninth Circuit SmithKline case, which I wrote about here, mandates heightened scrutiny for antigay discrimination. Olson and Boies didn't have that at their disposal. Heightened scrutiny makes these state protestations that it is legitimate to prefer heterosexual unions all pointless. No one can make a heightened scrutiny case: that is why Nevada Governor Brian Sandoval was forced to drop his defense of the gay marriage ban. 

In the end, this was a rough day for those opposed to marriage equality. Three progressive judges, though more muted in their questioning than Judge Posner was at the Seventh Circuit, were no less skeptical of the homophobic, ahistorical, misleading, misdirected arguments against allowing gays to marry. The hearing was a testament to how far we have come since the last time marriage equality was before Judge Reinhardt. The 2 to 1 decision in the Prop 8 case was an exercise in caution, an attempt to give the Supreme Court a way to support marriage equality without jumping ahead of too much of country. But at that time, we didn't have Windsor, we didn't have several other appellate courts declare bans unconstitutional, and we didn't have an emerging consensus written down in appellate and district court opinions. At that time, we had only a handful of marriage equality states; today, we have 19 states and the District of Columbia with equal marriage, covering more than 44 percent of the population. Today's hearing will result in an opinion with none of the hedges and narrowings of Perry. It will likely be unanimous and another sign that this debate is nearing its end.

Watch the full hearing HERE.

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Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently pursuing his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.