9th Circuit Strikes Down Same-Sex Marriage Bans In Idaho And Nevada

Two more states are added to the list, with another three likely not far behind.


Late yesterday, the Ninth Circuit Court of Appeals became the fourth Federal Court of Appeals to rule that state laws banning same-sex marriage are unconstitutional, extending marriage rights for gays and lesbians to two more states and, eventually, the remaining three in its Circuit that don’t already recognize same-sex marriage:

A Federal appeals court Tuesday struck down gay marriage bans across the West, bringing to 35 the number of states where same-sex couples can marry.

The decision by the U.S. 9th Circuit Court of Appeals specifically strikes down same-sex-marriage bans in Idaho and Nevada, but it applies to all of the circuit’s states and overturns similar prohibitions in Alaska, Arizona and Montana.

In extending the benefits of marriage only to people who have the capacity to procreate, while denying those benefits to same-sex couples who already have children, Idaho and Nevada materially harm and demean same-sex couples and their children, Judge Stephen Reinhardt wrote for the three-judge panel.

It could take several months before the 9th Circuit ruling takes effect, assuming it is not overturned by the U.S. Supreme Court.

Lyle Denniston has more detail:

First, all three judges on the panel joined in an opinion by Circuit Judge Stephen Reinhardt finding that the Idaho and Nevada bans violate the constitutional guarantee of same-sex couples to be treated the same legally as opposite-sex couples.  Second, Judge Reinhardt issued a separate opinion, for himself only, saying he would also strike down those bans under the Constitution’s due process clause, arguing that the right to marry is a fundamental guarantee and that gays and lesbians have a right to share in that right. Third, Circuit Judge Marsha S. Berson, in a separate opinion only for herself, said she would have also struck down the bans on the premise that they discriminate on the basis of gender.

The third member, Circuit Judge Ronald M. Gould, joined only the main opinion on the equal protection principle.

This ruling was perhaps the least surprising among four federal courts of appeals decisions striking down state prohibitions on same-sex couples marrying, and already-married couples gaining official state recognition of those unions, performed elsewhere.

The Ninth Circuit already was on record for striking down California’s ban, “Proposition 8,” although that decision did not remain on the books because of a procedural flaw when the case went to the Supreme Court last year.  Even so, same-sex marriage is legal in California under an earlier ruling by a federal trial judge.

In addition, the Ninth Circuit Court applies a tougher standard — heightened scrutiny — for laws that are challenged as discriminating against gays, lesbians and transgender people, and no marriage ban has yet survived that test.

In the Idaho case, the new decision upholds a federal trial judge’s decision against that state’s ban.  In the Nevada case, the ruling overturns a decision by a federal trial judge in favor of that state’s ban.

It is possible that Idaho officials could try to get the full Ninth Circuit bench to reconsider the ruling, or they could seek to take the case on to the Supreme Court.  However, the Ninth Circuit Court previously refused en banc review in the “Proposition 8″ case.  And, the Supreme Court’s refusal on Monday to review the three other federal appeals courts’ decisions that came out the same way might suggest little hope of succeeding with a challenge before the Justices.

Nevada officials had abandoned a defense of their state’s ban, and the defense of the law was carried on by a private group in the state, the Coalition for the Protection of Marriage.  Although that group could not legally stand in for the state, the Circuit Court panel agreed to consider its views on the equal protection question.

When it comes to the legal anaylsis in the 9th Circuit’s opinion, there isn’t really very much that distinguishes it from the other numerous District and Appeals Court decisions that have been released since last June when the Windsor decision was released, or even from cases before hand. In many ways, in fact, the Court’s opinion here is similar to the one that was issued in the Proposition 8 case more than two years ago, which isn’t entirely surprising since both decisions were written by Judge Stephen Reinhardt who has been on the Court since 1980 when he was appointed by President Carter. In both opinions, Judge Reinhardt concludes that the ban on same-sex marriage should be analyzed using what is generally called heightened or “intermediate” scrutiny under the Equal Protection Clause, which means that the law being challenged will fall unless the state can show that the law serves an important government interest and is substantially related to serving that interest. (As commenter HarvardLaw92 notes, the test in the 9th Circuit is actually a bit more involved than that.)  Judge Reinhardt is also the author of a January 2014 opinion, Smith-Kline Beecham v. Abbott Labs, in which the Circuit adopted the rule that all laws that discriminate based on sexual orientation should be judged based on a heightened scrutiny standard. Judging a ban on same-sex marriage based on that standard, it is virtually inevitable that the law would fail to meet Constitutional muster, and that is exactly what happened in this case.

Legal analysis aside, this decision is mostly important to the same-sex marriage debate because of the matter in which it ads to the momentum behind the campaign against the bans, and potentially spreads recognition of same sex marriage to another huge part of the United States. The two states impacted by the ruling appear to be reacting differently to the outcome this morning. In Nevada, state officials say that are just waiting on the formal mandate from the District Court to proceed forward with same-sex marriages across the state. Idaho, meanwhile, seems intent for the moment at least on appealing the case to the Supreme Court and has asked for a stay which, at least temporarily, was granted by Justice Anthony Kennedy, who is the Justice who presides over the 9th Circuit. That stay may not last long, though, since Kennedy has given the opposing side to respond to the stay request. Even assuming someone appeals this ruling, which is by no means clear at the moment, it seems obvious that the Supreme Court would dispose of such an appeal in the same manner that it did the appeals from the Fourth, Seventh, and Tenth Circuits. So, whether the losing parties appeal or not, it’s clear what will happen and that, at the very least, the bans in Idaho and Nevada will not last much longer. Additionally, the Ninth Circuit also has jurisdiction over 3 other states where same-sex marriage is currently banned, Montana, Arizona, and Alaska. As with the Circuit Court rulings the Supreme Court declined to review on Monday, this ruling is law in the Circuit and would be controlling in any litigation challenging same-sex marriage bans in all of those jurisdictions. So that means we’re looking at five more states where same-sex marriage will be legally recognized.

In any case, the legal battle seems to be continuing to unfold as the Supreme Court apparently wants it to, although one imagines the Justices didn’t necessarily think that things would move this quickly.

Here’s the opinion:

Latta Et Al v. Otter Et Al by Doug Mataconis

FILED UNDER: Law and the Courts, US Politics, , , , , , , , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. C. Clavin says:

    Latest…Kennedy put a halt to SSM in Idaho…ostensibly to let the process play out…but who knows?
    Lawyers for the same-sex couples have until 5:00 tomorrow to respond to the appeal.

  2. HarvardLaw92 says:

    @C. Clavin:


  3. @C. Clavin:

    I do make note of the stay at the end of the post. For now, it seems to be merely temporary.

    FWIW, SCOTUS granted stays in all 7 cases they punted on Monday. Stays are routinely granted to allow Courts to consider the legal arguments being made while maintaining the status quo. In this case, AMK gave the opposing parties until tomorrow to file responses to the request for a stay, so there may not even be a permanent stay granted.

    Even if it is, and even if Idaho appeals (Nevada will not be appealing, although it appears to be covered by the stay that was issued this morning), the same thing will happen in their case that happened on Monday.

  4. Jeff says:

    In both opinions, Judge Reinhardt concludes that the ban on same-sex marriage should be analyzed using what is generally called heightened or “intermediate” scrutiny under the Equal Protection Clause, which means that the law being challenged will fall unless the state can show that the law serves an important government interest and is narrowly tailored to serve that interest.

    “Narrowly tailored” is part of the strict scrutiny standard. Heightened/intermediate scrutiny merely requires that the policy be substantially related to an important government interest.

  5. @Jeff:

    And that the means used are “substantially related” to serving the interest. But, yes, you are correct, not sure why I let that slip in there. I’ve updated the post.

  6. HarvardLaw92 says:


    We generally regard the criteria for strict scrutiny to be a compelling (as opposed to important) government interest, and a narrowly constructed governmental policy in furtherance of that interest which is substantially the least restrictive means of furthering it.

    You’re correct in that intermediate scrutiny requires only an important interest and a substantially related government response. That having been said, heightened and intermediate scrutiny are not synonymous in the 9th Circuit. It’s a three prong versus two prong evaluation there

  7. HarvardLaw92 says:

    @Doug Mataconis:

    Consider clarifying it further. Reinhardt is applying the standard of heightened review established by Witt v. Department of the Air Force, 527 F.3d 806 (9th Cir. 2008). That is a three prong test unique to the 9th Circuit which requires the satisfaction of three prongs:

    The statute has to advance an important governmental interest;

    It must substantially further that interest (as opposed to being substantially related to it), and;

    The intrusion perpetrated by the statute must be necessary to further the interest.

    It’s a blending of intermediate and strict, in that it imposes the necessity evaluation, but stops short of imposing the least restrictive means standard imposed by Carolene / Korematsu.

  8. C. Clavin says:

    @Doug Mataconis:
    My bad.

  9. @HarvardLaw92:

    Fair point. Rather than cluttering up an already long paragraph, though, I’m just going to link to your comment.

  10. HarvardLaw92 says:

    @Doug Mataconis:

    No worries. Thanks for clarifying it.

    Sidenote: Kennedy just amended his order to exclude Nevada from the stay. If this one survives the weekend, I’ll be surprised.