BREAKING: 9th circuit strikes down gay marriage bans in ID, NV

In a whirlwind week for gay rights, the 9th circuit court of appeals has just struck down Nevada’s and Idaho’s state bans on gay marriage.

This also paves the way for gay marriage in Montana, Arizona and Alaska, all of which are in the court’s jurisdiction.

I’m still trying to get word on what this means for these other states and territories in the 9th circuit that do not recognize gay marriage, and which have not been so far mentioned in the new stories on this: Arizona, Guam, Northern Mariana Islands.

The decision was unanimous.

The news comes on the heels of yesterday’s decision by the Supreme Court not to hear appeals from five states. That decision by the court effectively legalized gay nuptials in those states, and paved the way for gay marriage in an additional 6 states in the same appellate districts.

So where things stand today, the appellate court reportedly remanded the case back to the district court, so that it can issue an injunction permanently enjoining the state from blocking gay marriages, and/or not recognizing such marriages from other states.

In the meantime, the state of Nevada has the right to start such marriages immediately, if it so chooses.

Now, what does this mean?

First, the losers can ask the case to go en banc, meaning 11 judges re-hear the case, rather than the three who already ruled. It’s unclear how that request will fare, as it’s not terribly clear why anyone would think this case wouldn’t be denied by the Supreme Court, as were all the cases yesterday.

Second, the losers will ask the court to stay its decision, pending appeal. But again, in view of yesterday, why grant the stay when it’s clear the Supreme Court will reject the appeal?

UPDATE: There’s no stay in Idaho. Chris Stoll with the National Center for Lesbian Rights tells me that the appellate court issued a “mandate,” which basically means the stay pending appeal is no longer in effect, and starting tomorrow morning, the state will be under an injunction from the district court requiring it to permit gay couples to marry, and to recognize out of state gay unions.

All three judges were appointed by Democratic presidents. This is what happens when you vote for Democrats. We win back our humanity. Don’t let anyone tell you that it doesn’t matter if you vote for Democrats. Tell that to the millions of gay Americans who are now more equal citizens as a result of several Democratic presidents (and a few Republicans too, surprisingly). Yeah, Democrats stink. But they stink a lot less than the other guys, and sometimes, like with our civil rights, they pretty much rock.


And let me weigh in again on something I’ve been noting ever since the Supreme Court decided US v. Windsor. In response to those who bemoan the fact that the Supreme Court refused yesterday, and in Windsor, to legalize gay marriage nationwide, I say “good for them.” Had the court mandated gay marriage in all 50 states in one fell swoop, there could have been a backlash, a la Roe v. Wade. At the very least, it would have empowered the bad guys, and the political party that they control (hint: Republican). It also would have freaked out several of the bad states, in the south, southwest, and northwest (yes, Idaho, that means you) simultaneously. Which would have given their Republican Senators a chance to uniformly speak out, on the same day, in opposition.

Instead, the Supreme Court gave us a ruling in Windsor that basically mandated that local courts recognize gay marriage, without telling them to do it right now. Rather, local plaintiffs would have to file their own cases in each state, or appellate region, and wait. Days, weeks, months, or perhaps a few years.

And as a result, we’d win in each state piecemeal. So each state’s crazy representatives in Congress might speak out on that particular day, but otherwise they’d be quiet. And rather than 30 crazy Republican Senators speaking out simultaneously, all we got yesterday was one egotistical wackjob who wants to be president, and thinks he’s going to get there by shutting down the government and the gays: Ted Cruz. And Ted Cruz angling to be president isn’t hardly as newsworthy as two dozen GOP states in simultaneous uproar.

So, our victory happens slowly, like in Carl Sandburg’s poem “Fog,” in cat steps. It ends up looking organic, and inevitable, and after dozens of victories in lesser courts, downright boring. The Supreme Court gave us the perfect recipe for victory: ennui.

“Fog,” by Carl Sandburg

THE fog comes
on little cat feet.

It sits looking
over harbor and city
on silent haunches
and then moves on.

Here’s some of the judges’ decision (the entire decision is below).

First off, the court had something to say about the Republican governor of Idaho’s contention that gay marriage would lead straight people to “abuse alcohol and drugs, engage in extramarital affairs, take on demanding work schedules, and participate in time-consuming hobbies” (apparently, they actually claimed this). The governor’s name is — and I’m not making this up — Butch Otter:


Here’s some more:


And more:


And their conclusion:


9th Cir Order

Someone’s gonna have the sadz.


Follow me on Twitter: @aravosis | @americablog | @americabloggay | Facebook | Instagram | Google+ | LinkedIn. John Aravosis is the Executive Editor of AMERICAblog, which he founded in 2004. He has a joint law degree (JD) and masters in Foreign Service from Georgetown; and has worked in the US Senate, World Bank, Children's Defense Fund, the United Nations Development Programme, and as a stringer for the Economist. He is a frequent TV pundit, having appeared on the O'Reilly Factor, Hardball, World News Tonight, Nightline, AM Joy & Reliable Sources, among others. John lives in Washington, DC. .

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30 Responses to “BREAKING: 9th circuit strikes down gay marriage bans in ID, NV”

  1. rmthunter says:

    The Supreme Court’s finding that the Proponents of Prop 8 lacked standing was pretty much a way to avoid having to rule on the merits: they ducked and ran. And, I think their decision not to hear any of the pending cases (so far) this term reinforces that idea — they’re dodging a bullet — at least in their own minds.

  2. MyrddinWilt says:

    Again, this is one where I am happy to win that case but less happy about the precedent.

    The same argument made on standing would have applied if they had decided the case on the merits.

    As for Scalia, he has no problems at all with the fact that he has denied death sentence appeals for men later freed because they were proved innocent.

  3. Silver_Witch says:

    Never thought of that MyrddinWilt. Thanks for pointing that out.

  4. LADY MABELINE says:

    I ‘m going for Mississippi. I think they were also the last state to ratify the 13th amendment. They have a proven track record of not fully understanding the dynamics of civil rights.

  5. Badgerite says:

    Wonderful decision. I think the take away is that Leviticus is not a “legitimate purpose ” that “overcomes the injury” to gay families.

  6. BlueIdaho says:

    Justice Kennedy issued a stay this morning. So for now, same-sex marriages can’t begin in Idaho. What a crock of shit.

  7. Bill_Perdue says:

    You misunderstand. I support the long struggle of the LGBT communities to overturn the Democrats federal DOMA and Bushes state DOMA. All the victories so far were won by mass actions and legal challenges. Democrat politicians had nothing to do with it so how could Never-Good-Enough have any meaning.

    I made the comment to show the historical disparities between the LGBT struggles here and in Russia.

  8. Bill_Perdue says:

    I believe you’re confused. The protests were directed against war criminals like LBJ and Nixon, not against our contemporary war criminals, the Clintons, both Bushes and Obama.

  9. LumberJock says:

    Mister-ssippi or ‘Bama. Florida is moving right along. It’s purple hue is closer to indigo than plum.

  10. therling says:

    If these people are so intent on “strengthening marriage,” then why don’t they come out against divorce? I’m sure they could get plenty of support from the loudest opinion leaders such as Rush Limbaugh, Newt Gingrich, Bill O’Reilly, et al, and also invoke the saintly ghost of Ronald Reagan.

  11. Thom Allen says:

    You realize that if it weren’t for the student activism directed against Bill, Hillary, Obama and the Shrub family singers in the 60s, they would have succeeded in driving us even more deeply underground.

  12. Mike_in_the_Tundra says:

    My husband and I were married in a Lutheran Church.

  13. goulo says:

    That wouldn’t work for them, because more and more religions and religious marriage officials recognize and perform same-sex marriage!

    (I am cautiously optimistic that even the Catholic church will get there one day, albeit maybe centuries from now…)

  14. StealthVoter says:

    I never understood why the religious nuts just don’t relabel their marriages as “sacred marriage” or “blessed marriage” to indicate that it was performed by a priest, minister, or other magician. Maybe Catholic can just call theirs “Catholic marriage” if they need to point out how “special” they are.

  15. GarySFBCN says:

    Ah, Mr. Never-Good-Enough returns with more ‘on-topic’ commentary.

  16. perljammer says:

    Obligatory XKCD.

  17. rmthunter says:

    The proponents of Prop 8 could not demonstrate harm or a significant interest — “interest” in this case meaning that they were not materially affected by the decision: their marriages weren’t at issue. The state, by definition, does have an interest in the outcome, and if the state declines to appeal a decision striking down a marriage ban, then it becomes very difficult for any other party to establish standing.

    As for Scalia’s jurisprudence — have you ever read any of his decisions? He’s a past master at answering the wrong questions.

  18. MyrddinWilt says:

    Nope, the last hold out will be a state that doesn’t do a last ditch stand. Those will get challenged quickly and struck down quickly.

    Last state will be some place where it is difficult to bring the test case because there is an executive order permitting marriage but the law hasn’t been changed. Then a bigot will get elected governor.

  19. MyrddinWilt says:

    Establishing standing is really hard. The courts struck down the attempt by the Prop-H8 referendum proposers to challenge the ruling striking down the law. Hard to see how anyone would have better standing than the proposers of a referendum ballot.

    Happy to take this outcome but the broader precedent may not be good. But on the other hand, Scalia doesn’t even pretend he isn’t just making it all up any more. So its not like it would affect his jurisprudence.

  20. rmthunter says:

    Sorry, but a governor refusing to defend a law in court doesn’t really equal nullification — there are others who can defend a law as long as they can establish standing (i.e., potential harm or a substantial interest in the outcome), and the whole thing has to play out in the courts.

  21. goulo says:

    At least half of the people in opposite-sex marriages are also unable to impregnate their spouse! :)

    But yeah, seriously, it is indeed bizarre and sad why anyone in a marriage would feel that their marriage is somehow threatened by other people being able to marry.

  22. Silver_Witch says:

    Alabama…seriously Alabama or George…. nope alabama

  23. nicho says:

    Butch Otter? That’s my porn name. You can see me in “Forest Hump.”

  24. nicho says:

    There WILL be a race to the bottom. Remember, Georgia outlawed slavery only last year.

  25. Indigo says:

    At this point, it’s a horse race to see who comes around last. My money’s on Florida.

  26. StealthVoter says:

    All of the bigots and narrow-minded so-called Christians are irrationally terrified that the marriage is being corrupted because of these rulings. In their slow-witted lack of insight regarding same-sex marriage, they miss the absolutely obvious that is right in front of them. There is hetero marriage and there is same-sex marriage. They are the equivalent in terms of civil rights (and should be), but they are not the same. Right-wing crazies hear “equal” and think it means “the same as”. Men and women should have equal rights, but men are not the same as women. Gays should have equal marriages as heteros, but it does not mean their marriages are “the same as”. The differences range from the practical (the phrase “man and wife” versus “spouse and spouse”, or which parents pay for the wedding) to more substantial issues like having children (a gay or lesbian obviously cannot impregnate their spouse).

    Fundies act like same sex marriage is destroying hetero marriage, when in fact same sex marriage is simply a legally equal but in reality different event.

  27. ChrisDC says:

    John, I had the same questions about the territories.

    There is a District Court for Guam, and a District Court for the Northern Marianas (both of which are under the jurisdiction of the 9th Circuit), and a District Court for the U.S. Virgin Islands (which falls under the 2nd Circuit).

    These are territorial courts which operate under slightly different rules. (Among other things, judges are appointed by the President and subject to Senate confirmation for 10-year terms — not for life.)

    The District Court for Puerto Rico falls under the 1st Circuit, and operates for all intents and purposes as if Puerto Rico were a state.

    There is no District of American Samoa, since American Samoa is not an incorporated territory, and the U.S. Constitution does not always apply there. (Land in American Samoa is largely communally-owned, with restrictions on alienation of property rights that wouldn’t pass muster here.)

    A 9th Circuit decision on a constitutional question would (I’m pretty sure) apply to Guam and the CNMI, but not to American Samoa. Puerto Rico would follow the Boston-based First Circuit (where we’ve already won), while the Virgin Islands would follow the Philadelphia-based Second Circuit.

    (If I’m wrong on any of that, please correct me.)

  28. MyrddinWilt says:

    Josh Marshall has an interesting take: The bigots didn’t even get their case heard. Its not even close enough to be worth arguing over.

    Looking at the cases that were sent up, many of the states had stopped arguing them properly, they were just going through the motions. And I am not entirely OK with the idea that a state governor can nullify laws just by choosing not to defend them. After all what would stop a Koch-owned governor from nullifying fair labor laws by deciding not to defend a Koch bros challenge?

    A SCOTUS decision would not have made things happen any earlier unless they decided to make a more general ruling than the cases before them. Which was never likely because the laws are not consistent and some places don’t even have laws.

    It is hard to see any court granting the bigots any stays for appeals from now on. And the appeals courts might not even see the need to hear the cases. So its just 20 more cases and its done.

  29. Bill_Perdue says:

    While we’re celebrating the momentum of our victories lets not forget our Russian brothers and sisters who are still under the gun.

    “A hunting season is open and we are the hunted” says Dimi, who lost an eye to anti-gay terrorists in the documentary Hunted.

    The Hunted described a nation in desperate political and economic straits led by an opportunistic bigot named Putin, who, as Ekaterina, a courageous member of the anti-bigot movement says, wants to scapegoat gays to distract from the failings of his regime.

    In 1917 the Bolsheviks decriminalized homosexuality in Russia. Many openly gay people served in the government until 1933 when the Stalinists re-criminalized us. “According to RT, “several hundred people [were] charged with it every year” and it “was also a convenient tool for smears and was tacked onto spying allegations during the NKVD purges. (Wiki) Thirteen years ago as the USSR was betrayed, Yeltsin and Putin sold the economy to thugs and former bureaucrats who created a new and especially vile form of capitalism – gangster capitalism. They also instituted all
    the trappings of western ‘democracy’ – meaningless votes, corrupt judges and right wing politics.

    Capitalism and capitalist ‘democracy’ don’t work any better in Russia than they do in the US and the EU, both in the grip of intractable economic chaos and both undergoing a hurried drift to the right.

    In Russia the oppression of the LGBT communities is getting much worse with the passage of new anti-gay laws, the indifference to crimes against our sisters and brothers by the courts and police, all documented in Hunted and a crime wave based on the bigotry of the Putin regime and the orthodox cult. This anti-gay crime wave is attracting fascists and other mentally ill people. In the film you can see the insane hatred bubbling in the mad deathshead grimaces and cackling of Dmitri and Katyia, leaders of anti-gay terrorist groups.

    The US was on the same anti-gay path in the 1950s but it was stopped in its tracks by the vast student and youth radicalization of the 1960’s which reversed things and created the climate in which the Stonewall movement could grow. Now, the great fear is that the situation in Russia will get worse. That depends on two things – the growth of socialist movement and the labor left in Russia, which would give our communities breathing room to regroup and fight back, and their ability to enter the left as it grows.

    For an excellent literacy examination of LGBT life under Truman and Eisenhower read RC Reihhart’s
    A History of Shadows and his equally brilliant novel Beldon’s Crimes.

  30. FLL says:

    Brian Brown: “Make it stop! Make it stop!”

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