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

The James R. Browning U.S. Courthouse in San Francisco, home of the Ninth Circuit Court of Appeals.
The James R. Browning U.S. Courthouse in San Francisco, home of the Ninth Circuit Court of Appeals. Ernest McGray, Jr.

Supporters of the bans in the three states before the 9th Circuit argue that state governments have an interest in promoting marriage between a man and a woman, which they say is optimal for childrearing. Opponents say there is no data supporting the childrearing contention and they argue that the marriage prohibitions are unconstitutional violations of equal protection rights.

The 9th Circuit panel has allotted a combined two hours for three sets of arguments Monday. The court is expecting a big turnout and is limiting public seating in the courtroom through a lottery. The court will also stream the two hours of arguments live online.

The case for gay marriage was bolstered when the court earlier this week unveiled the names of the three judges assigned to decide the issue in those three states.

Judges Marsha Berzon and Ronald Gould were appointed by President Bill Clinton. And Judge Stephen Reinhardt, appointed by President Jimmy Carter, is considered one of the most politically liberal jurists on the 29-judge court.

Reinhardt wrote the 2012 opinion striking down California’s gay marriage ban. He also wrote an opinion in January that declared gays and lesbians a “protected class” and extended to them the same civil right protections against discrimination that the U.S. Supreme Court has previously promised only women and racial minorities.

Reinhardt, writing for the unanimous three-judge panel that also included Berzon, held that striking someone from a jury pool because he or she is gay constitutes unlawful discrimination.

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Less than a month after Reinhardt’s gay juror ruling on Jan. 21, Nevada Gov. Brian Sandoval, a Republican seeking re-election this year, said the state would no longer fight a lawsuit seeking to invalidate Nevada’s gay marriage band. Sandoval said that “it has become clear that this case is no longer defensible in court.”

Nevada’s defense of the ban has been taken up by a private organization called the Coalition for the Protection of Marriage. The coalition’s attorney Monte Stewart declined comment.

In the Idaho case, Gov. C.L. “Butch” Otter is appealing a lower court decision tossing out that state’s gay marriage ban. Otter says the majority of Idaho residents support the ban and that the U.S. Supreme Court will make the final decision.

In Hawaii, attorneys representing the Hawaii Family Forum, which opposes gay marriage, are asking the court to keep alive the forum’s legal case even though state lawmakers legalized same-sex marriage in December.

The 9th Circuit panel is under no deadline to rule.

More on the three cases before the Ninth Circuit is here

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