WASHINGTON — Idaho and Nevada's bans on same-sex couples' marriages are unconstitutional, a three-judge panel of the 9th Circuit Court of Appeals ruled on Tuesday.
Judge Stephen Reinhardt, writing for the unanimous panel, applied additional scrutiny to the claimed sexual orientation discrimination the same-sex couples in the two states faced by the bans. The 9th Circuit held earlier this year that such additional scrutiny — heightened scrutiny — applies to sexual orientation claims under equal protection.
He wrote:
We hold that the Idaho and Nevada laws at issue 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 we adopted in SmithKline.
The ruling comes one day after the Supreme Court denied five states' appeals of other marriage cases where other appeals courts had ruled that those states' bans are unconstitutional.
Under the court's rules, the mandate — which puts the ruling into effect — will not issue from the 9th Circuit until "7 days after the expiration of the time for filing a petition for rehearing or 7 days from the denial of a petition for rehearing, unless the Court directs otherwise."
Of course, as Nevada's governor and attorney general stopped defense of their state's ban after the 9th Circuit ruled that heightened scrutiny applied to sexual orientation claims, it is possible that they could take action to attempt to allow the ruling, as to their state, to go into effect sooner.
In key, Reinhardt writes for the court:
Reinhardt wrote separately, only for himself, that he also would strike down the ban as violating the fundamental right to marriage:
Judge Marsha Berzon, another judge on the panel, also wrote separately to say that she would strike the bans down because they are sex discrimination:
The 9th Circuit Court of Appeals issued the mandate in both cases, following an order from the panel, "The mandate shall issue forthwith." Absent some change by morning, the marriage trial ruling in Idaho in effect and the matter is sent to the trial court in Nevada for final resolution.
According to a joint statement from Nevada Gov. Brian Sandoval and Attorney General Catherine Cortez Masto's offices, "Upon review of the Ninth Circuit’s decision, the state will take no further action in this matter." Clark County officials, per Nevada reporter Jon Ralston, will begin issuing marriage licenses to same-sex couples beginning 2 p.m. Wednesday.
Las Vegas is ready, with the Las Vegas Convention and Visitors Authority announcing that "Vegas just got more fabulous" — because same-sex couples would soon be marrying in the city. Promoting "dazzling" weddings, the authority, added, "Las Vegas is welcoming from one end of the Strip to the other and goes above and beyond to ensure every visitor has a memorable experience."
It is not yet clear what will be happening in Idaho on Wednesday, despite the mandate's issuance.
Idaho Attorney General Lawrence Wasden said in a statement provided to BuzzFeed News, "We are still reviewing the decisions and orders issued today by the 9th U.S. Circuit Court of Appeals. It's still too early to know fully what the decision and orders mean for Idaho and how the state will proceed."
Wasden's spokesman, Todd Dvorak, added, "Unless something changes later tonight, this will be our final comment on today's developments."
An attorney with the National Center for Lesbian Rights, Chris Stoll, has stated that the group will go to court if the state does not allow same-sex couples to begin marrying in the state.
The lack of an appeal in Nevada means that the law of the circuit in the 9th Circuit is that bans on same-sex couples' marriages are unconstitutional. Similar to the situation in the 4th, 7th, and 10th circuits, that means it is the controlling precedent should any case be in or complaint come to a federal judge within the circuit. Specifically, that means Arizona, Alaska, and Montana could see marriage equality in short order.
An exception to this could come about if Idaho seeks and the 9th Circuit accepts a rehearing of the appeal en banc. An en banc ruling upholding Idaho's ban would — because it comes from an en banc panel and not a three-judge panel — be the controlling precedent in the circuit. It is more likely, though, that such a request would be denied, even if sought.