SAN FRANCISCO (CBS/AP) — A federal court hearing over gay marriage bans in Idaho, Nevada and Hawaii began Monday with a lawyer defending the state of Idaho’s ban facing tough questions from a judge on the panel.
Attorney Monte Neil Stewart told the three-judge panel of the 9th U.S. Circuit of Appeals in San Francisco that same-sex marriage would undermine children’s right to be raised by a father and mother.
Same-sex marriage would undercut the message that a man who fathers a child should get in a relationship with the female mother, Stewart said.
“This is a contest between two different messages,” he said. “The message of man-woman marriage is: ‘Men, you are important in the upbringing of the children you bring into this world. Women, you are important in the upbringing of children you bring into this world.’ Genderless marriage does not send that message.”
Judge Marsha Berzon questioned how gay marriage differed from the current model of marriage, which she called “genderless.” Berzon said that with gay marriages occurring, “the train has already left the station.”
Deborah Ferguson, an attorney representing gay marriage supporters opposed to Idaho’s ban, said children of same-sex couples don’t have the same protections as children of heterosexual couples.
“(They) don’t have two legal parents to protect them,” she said. “That is sending a powerful message. That tells those children that their parents’ marriages aren’t worthy of respect. That’s a very harsh message.”
The court was next expected to hear arguments next over Nevada and Hawaii’s bans. The panel has allotted a combined two hours for three sets of arguments Monday.
The hearing is the first time since it declared California’s gay marriage ban unconstitutional that the 9th Circuit is hearing arguments over same-sex weddings 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.
“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 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.
“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 pro-gay marriage rulings have used the rationale the Supreme Court employed 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 led to an explosion of litigation.
Nineteen states and Washington, D.C., now allow gay marriages.
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 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 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.
Reinhardt, writing for the unanimous three-judge panel that also included Berzon, also held that striking someone from a jury pool because he or she is gay constitutes unlawful discrimination. 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 ban because “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.
In the Idaho case, Gov. C.L. “Butch” Otter is appealing a lower court decision tossing out that state’s gay marriage ban.
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.
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