Two years after overturning Prop 8, gay marriage back before the Ninth Circuit

Marriage equality advocates rally outside the James R. Browning U.S. Courthouse in San Francisco, home of the Ninth Circuit Court of Appeals, on February 7, 2012, moment before hearing that the court upheld a District Court ruling that Proposition 8, California’s ban on same-sex marriage, was unconstitutional. AP

Marriage equality advocates rally outside the James R. Browning U.S. Courthouse in San Francisco, home of the Ninth Circuit Court of Appeals, on February 7, 2012, moment before hearing that the court upheld a District Court ruling that Proposition 8, California’s ban on same-sex marriage, was unconstitutional.AP

Marriage equality advocates rally outside the James R. Browning U.S. Courthouse in San Francisco, home of the Ninth Circuit Court of Appeals, on February 7, 2012, moment before hearing that the court upheld a District Court ruling that Proposition 8, California’s ban on same-sex marriage, was unconstitutional.

SAN FRANCISCO — For the first time since it declared California’s gay marriage ban unconstitutional, the federal appeals court in San Francisco is readying to hear arguments over same-sex marriage in a political and legal climate that’s vastly different than when it overturned Proposition 8 in 2012.

State and federal court judges have been striking down bans in more than a dozen states at a rapid rate since a landmark U.S. Supreme Court ruling last year.

Now, three judges on the 9th U.S. Circuit Court of Appeals – all appointed by Democrats and one whom wrote the opinion overturning Proposition 8 – are set to hear arguments Monday on gay marriage bans in Idaho, Nevada and Hawaii.

“It seemed like such an uphill battle when I started,” said Shannon Minter, legal director for the National Center for Lesbian Rights. “I really couldn’t imagine then that we would be where we are now.”

Minter has been fighting for gay marriage for 21 years, was instrumental in challenging bans in California and Utah and is representing gay couples seeking to overturn Idaho’s prohibition.

The 9th Circuit in 2012 invalidated Proposition 8 because it singled out a minority group for disparate treatment for no compelling reason. The U.S. Supreme Court dismissed the case last year without ruling on the legal merits of gay marriage.

The numerous gay marriage rulings in recent months, including one by the federal appeals court in Chicago rejecting bans in Wisconsin and Indiana and another by a federal judge affirming Louisiana’s law, have raised the pressure on the U.S. Supreme Court to decide the issue.

Last week, 15 states that allow gay marriage and 17 that don’t asked the high court to weigh in.

The Mormon church and four religious organizations also asked the Supreme Court to intervene. The Church of Jesus Christ of Latter-day Saints, in a statement Friday, said it joined a friend-of-the-court brief asking the high court to hear Utah’s marriage case.

It was joined by The United States Conference of Catholic Bishops, the National Association of Evangelicals, the Ethics & Religious Commission of the Southern Baptist Convention and the Lutheran Church-Missouri Synod.

“Until all 50 states get on board, it’s a legal battle from state to state,” said Tara Newberry, one of the plaintiffs in the Nevada case, who wants to marry her longtime partner. “The map is changing. But until the Supreme Court of the United States makes the determination, it’s state-by-state.”

The pro-gay marriage rulings have used the rationale Supreme Court used in June 2013 when it invalidated the core of the Defense of Marriage Act that defined marriage as only between a man and a woman for determining federal benefits. That ruling didn’t directly address whether states can impose bans and led to an explosion of litigation.

Nineteen states and Washington, D.C., now allow gay marriages.

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