Ninth Circuit Declares Idaho and Nevada Same-Sex Marriage Bans Unconstitutional

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The Ninth Circuit has issued its opinion in Latta v. Otter (and Sevick v. Sandoval) holding that the same-sex marriage bans in Idaho and Nevada respectively are unconstitutional.

This is not surprising given yesterday's denial of certiorari by the United States Supreme Court to the petitions in the Fourth, Seventh, and Tenth Circuit cases with similar holdings.

The unanimous opinion authored by Judge Reinhardt held that the Idaho and Nevada laws regarding same-sex marriage "violate the Equal Protection Clause of the Fourteenth Amendment because they deny lesbians and gays who wish to marry persons of the same sex a right they afford to individuals who wish to marry persons of the opposite sex, and do not satisfy the heightened scrutiny standard" of  SmithKline Beecham Corp. v. Abbott Labs.

The court rejected the argument that the same-sex banning marriage laws survive heightened scrutiny because they promote child welfare by encouraging optimal parenting.  In part, the court found that the means chosen to accomplish this goal was underinclusive:

If defendants really wished to ensure that as many children as possible had married parents, they would do well to rescind the right to no-fault divorce, or to divorce altogether. Neither has done so. Such reforms might face constitutional difficulties of their own, but they would at least further the states’ asserted interest in solidifying marriage. Likewise, if Idaho and Nevada want to increase the percentage of children being raised by their two biological parents, they might do better to ban assisted reproduction using donor sperm or eggs, gestational surrogacy, and adoption, by both opposite-sex and same-sex couples, as well as by single people. Neither state does.

 The court found that the other interests were likewise inadequate to support the ban on same-sex marriage.  In approximately 30 pages, the court affirmed the district court in Latta and reversed the district court in Sevcik.

Interestingly, there are two separate concurring opinions.  Judge Reinhardt wrote a separate concurring opinion (to his own opinion), adding a fundamental rights analysis: "laws abridging fundamental rights are subject to strict scrutiny, and are invalid unless there is a “compelling state interest” which they are “narrowly tailored” to serve.  Unsurprisingly, he found the same-sex statutes did not survive under this more rigorous standard. 

Judge Berzon's separate concurring opinion added yet another justification for the ruling:  the same-sex marriage bans are classifications on the basis of gender that do not survive the level of scrutiny applicable to such classifications.

Thus, the Ninth Circuit joins the other three post-Windsor circuits, and essentially reaffirms its pre-Windsor holding in Perry v. Brown that same-sex marriage bans violate equal protection.