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

BY ARI EZRA WALDMAN

BerzonA 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...

Continue reading "Ninth Circuit Panel Eviscerates What's Left of Anti-Equality Arguments: A Summary and Analysis" »


Watch LIVE: Ninth Circuit Oral Arguments in Idaho, Nevada, and Hawaii Gay Marriage Cases

Ninth

The Ninth Circuit Court of Appeals is scheduled to hear oral arguments in the Hawaii, Idaho and Nevada gay marriage cases today and will be live streaming the arguments from the courtroom in San Francisco.

The feeds will begin shortly before 1pm PT, with Idaho getting 30 minutes per side, Nevada getting 20 minutes, and Hawaii 10. 

Watch the feeds AFTER THE JUMP... 

Last week, we reported on the three judge panel that will hear the gay marriage cases - with Equality on Trial pointing out that the trio are considered "some of the most liberal appeals court judges in the country." 

MSNBC reports that sexual orientation also has "heightened scrutiny" in the Ninth Circuit, which bodes well for a pro-equality victory: 

With heightened scrutiny, defendants (such as state officials arguing on behalf of same-sex marriage bans) would have to show how a law that treats gay and lesbian people differently serves an important or compelling state interest, not just a legitimate one. Heightened scrutiny essentially shifts the burden of proof off of the plaintiffs, and makes laws that discriminate against same-sex couples more difficult to defend.

Continue reading "Watch LIVE: Ninth Circuit Oral Arguments in Idaho, Nevada, and Hawaii Gay Marriage Cases" »


9th Circuit Names 3 Judge Panel To Hear Same-Sex Marriage Cases

9TH

The 9th Circuit Court of Appeals has announced the 3 judge panel that will hear challenges to same-sex marriage bans in Idaho, Hawaii and Nevada: Judges Stephen Reinhardt, Ronald M. Gould and Marsha S. Berzon. All three were appointed by Democrats and, as Equality on Trial points out, are considered to be "some of the most liberal appeals court judges in the country":

Judge Stephen Reinhardt, nominated by President Carter, is a highly respected liberal judge, known for writing the opinion in the Prop 8 case when it came before the Ninth Circuit; Judge Reinhardt also wrote the opinion inSmithKline Beecham v. Abbott Labs, which held that a heightened level of judicial scrutiny is required for laws that discriminate based on sexual orientation, and that jurors can’t be discriminated against on that basis.

Judge Marsha Berzon, nominated by President Clinton, once clerked for Justice William Brennan, and is considered to be a solidly liberal judge. She joined Judge Reinhardt’s opinion in SmithKline as well.

The third judge on the panel is Judge Ronald Gould, also nominated by President Clinton. Judge Gould wrote the Ninth Circuit’s opinion in Witt v. Dept. of Air Force, challenging Major Margaret Witt’s discharge from the military on the basis of her sexual orientation under Don’t Ask, Don’t Tell. That decision held that heightened scrutiny is required under the Supreme Court’s decision in Lawrence v. Texas, and it led to an eventual ruling that Witt’s discharge was unconstitutional.

The appeals court’s decisions in SmithKline and Witt had already ensured a more difficult path to victory in the cases for the state officials and groups defending the same-sex marriage bans. This panel makes it even less likely, though not impossible, the bans would be upheld.

The 9th Circuit assigns cases to judges on a random basis.

You'll recall that when the Prop. 8 case came before Judge Reinhardt, he denied a request that he recuse himself from the case because his wife, head of the Southern California chapter of the ACLU, was "an outspoken opponent of Proposition 8 and taken part in legal proceedings to overturn the voter-approved law."

The cases are set to be heard on Setpember 8th.


Hawaii Gov. Neil Abercrombie Says Support for Marriage Equality Cost Him His Reelection Bid

Hawaii Gov. Neil Abercrombie, who recently lost the Democratic gubernatorial primary to state Sen. David Ige, told reporters this week that it was his decision to call a special session last year to legalize marriage equality that ultimately led to his re-election bid defeat. 

The AP reports:

Abercrombie"Republicans crossed over en masse to vote in the Democratic primary, and then the religious factor came in," Abercrombie said. "Doctrinally I was outside the circle and paid for it." He argued that voters were urged to choose his opponent by their religious leaders.

Abercrombie, who spoke to reporters in his office, lost to Ige by a stunning 2-1 margin, the first time a Democratic governor has been unseated in a Hawaii primary.

But Abercrombie said losing was worth it to pass a law legalizing gay marriage.

"There's no way I could live with myself if I thought I was diminishing another human being's ability to reach their full capacity," Abercrombie said.

Executive director of the Hawaii Catholic Conference Walter Yoshimitsu said that he was unaware of any religious leaders urging voters to cross party lines and vote against Abercrombie in the primary. He did add though that many people were upset with Abercrombie's special session last year. 

"We couldn't have figured out what the urgency was," Yoshimitsu said. "If he had dealt with it in the regular session, there would have been more time."

Sometimes it's hard for the heterosexual Christians to see the "urgency" in the push for equal rights, ya know?


Neil Abercrombie, Hawaiian Governor Who Led State's Marriage Equality Push, Loses Reelection Bid

AbercrombieNeil Abercrombie, the Hawaiian governor who successfully led his state's efforts to pass marriage equality legislation last year, has lost his bid for a second term, the AP reports.

State Sen. David Ige, once seen as an underdog, cruised to a decisive 35 percentage point win in Saturday's primary after being dramatically outspent by Abercrombie, who also had high-profile endorsements including President Barack Obama. Ige said his win "proves that people power can be money power, especially in Hawaii." [...]

Abercrombie is the first Hawaii governor to lose to a primary challenger and only the second not to win re-election. His defeat comes after Obama last month cut a radio ad for Abercrombie, invoking the Hawaiian word for family to tell voters in his native state that Abercrombie is "like ohana to me."

The AP adds that Abercrombie's confrontational style and proposal to raise taxes last year contributed to his defeat.

Ige voted in favor of the marriage equality bill last year. 


9th Circuit Court of Appeals to Hear 3 Marriage Equality Cases in September

NincriSeptember is shaping up to be a busy month for the fight for marriage equality. Challenges to Nevada, Idaho, and Hawaii’s bans on same-sex marriage are slated to be heard to be heard by the Ninth Circuit Court of Appeals back to back to back on the same date.

The court’s official argument calendar now lists Jackson v. Abercrombie, Sevcik v. Sandoval, and Latta v. Otter as being heard on September 8th in the San Francisco court. Percentage wise, the 9th Circuit is comprised of the largest percentage (69%) of sitting judges appointed by Democratic presidents, making it a comparatively liberal circuit. The panel of judges presiding over these cases has not yet been made public, but it is safe to assume that the panel, as a group, will hear all three cases.


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