9th Circuit judges skeptical of Idaho’s arguments against same-sex marriage

Idaho’s arguments in favor of its invalidated ban on same-sex marriage came in for tough and skeptical questioning from a panel of 9th Circuit judges on Monday. Pressed by the judges, Monte Neil Stewart, a private attorney from Boise representing Idaho Gov. Butch Otter, said legalizing same-sex marriage would be more harmful to Idaho children than the expansion of divorce that followed no-fault divorce laws. “We think the effects will be much worse,” he told the court. Carl Tobias, a law professor at the University of Richmond in Virginia who’s been tracking same-sex marriage cases around the country, said, “That’s not a winning argument, I don’t think.” He added, “I’m glad I wasn’t trying to make those arguments. … I just don’t think that those judges were going to be persuaded, and I don’t think they were.” The state’s case focused on the idea that children are better off being raised by their two married, biological parents. The four same-sex Idaho couples who successfully sued to overturn the ban called that point irrelevant to the question of whether they also can marry and provide the benefits of marriage to their families and children. 9th Circuit Judge Marsha Berzon, one of three judges on the randomly selected panel that heard Idaho’s case in San Francisco, asked Stewart the percentage of children who grow up in what he described as the ideal environment – being reared by their married, biological mother and father. Stewart said in Idaho, it’s 68 percent up until age 6, and 58 percent up to age 17. That’s among the highest rates in the country, he said. “What strikes me is that this train has left the station,” Berzon said, “in the sense that the change has occurred in American marriages before all this.” Large numbers of children already are being raised by less traditional families, she noted. “When women were not able to own property and had to do everything their husbands said and so on, you had a different institution, but that was the core of the heterosexual marriage tradition to begin with,” Berzon said. “Once all of that changed, yes, the number of people who had children in marriage went down considerably, and that may be a bad thing, but it did not have anything to do with this.” Stewart told the court, “The only way a same-sex couple can be married … is for the state to withdraw its support for the man-woman marriage institution … and implement something new and different, and that is genderless marriage.” Deborah Ferguson, a Boise attorney representing the four Idaho couples, said Idaho has “the most sweeping” such ban in the 9th Circuit, barring domestic partnerships and civil unions as well as same-sex marriages. “It bars the possibility of any form of relationship recognition for its same-sex couples, relegating them to a permanent second-class status,” Ferguson told the court. Rejecting the state’s arguments that the ban is better for children, Ferguson – two of whose clients are raising young children together – said, “There is no logical nexus here. Allowing same-sex couples to marry will benefit them and those children.” Stewart argued, “This is a contest between two different messages. The message of man-woman marriage is men, you’re valuable and important in the upbringing of the children you bring into this world. Women, you’re valuable and important in the upbringing of the children you bring into this world. Genderless marriage does not send that message. Indeed, it undermines it.” Ferguson said the harms the ban imposes on her clients and those like them are many. “The law imposes a cradle-to-grave discrimination on same-sex couples in Idaho. It pushes them outside,” she said. “Children of gay and lesbian parents in Idaho, unless they have second-parent adoption … don’t have two legal parents to protect them.” That does send a message in Idaho, Ferguson said. “It tells those children that their parents’ marriages are not worthy of … respect,” she said, “a very harsh message.” She added, “It stretches beyond the grave,” noting that the Idaho State Veterans Cemetery refuses to bury the remains of veterans who are same-sex spouses together. Stewart took umbrage when Berzon compared the Idaho case to the 1967 Loving vs. Virginia case in which the ban on interracial marriage was overturned. In that case, “The state never advanced a legitimate interest,” he said. Berzon responded, “It’s one that doesn’t sound very legitimate to us now, but they thought there were legitimate interests.” People objected to mixing of races and thought it would harm society, she noted. Stewart said he hoped she wasn’t comparing that to Idaho’s interest in “preventing fatherlessness and motherlessness.” Ferguson said, “I don’t see the marriage of opposite sex and same-sex couples as these different regimes that are being portrayed by the state. My clients are looking for the opportunity to participate in traditional marriage, to marry and have that very intimate adult bond and protect their children in that fashion.” “And I don’t think that opposite-sex couples are looking to see what same-sex couples are doing,” she said, “and saying that somehow if same-sex couples are allowed to celebrate and have those very personal bonds, that it’s going to serve as a disincentive for them to marry or to have children or to stay together with their children. … You’re imposing a very great harm, for no benefit.” At the close of the arguments, the court took the case under advisement; there’s no deadline for its ruling. “I think it went very well,” Ferguson said afterward. Jon Hanian, spokesman for Otter, said, “We’re not going to have any comment beyond what was said in court.” Deputy Idaho Attorney General Scott Zanzig, who was at the counsel table for the arguments but didn’t speak, said, “We’re glad to have the case submitted, and we’re appreciative of the fact that the 9th Circuit is going to consider our appeal. I think it’s always difficult to tell just from being at the arguments how things are going to go. … We’re looking forward to a decision.” Amber Beierle said she and the seven other plaintiffs watched with interest in the courtroom. “Honestly, I was honored to be there,” she said. “I just feel like the merits of our case are strong.” After Idaho’s case, the 9th Circuit panel immediately moved to arguments on same-sex marriage bans in Nevada and Hawaii. Stewart was right back up, defending Nevada’s ban as an intervenor on behalf of the “Coalition for the Protection of Marriage,” after that state declined to defend it. At one point in his arguments, he slipped and said “Idaho” instead of Nevada; Judge Stephen Reinhardt corrected him. Amid laughter, Stewart said, “I’m a fourth-generation Nevadan, I’m going to switch gears here.” A few minutes later, he did it again. Judge Ronald Gould said, “Counsel, when you say Idaho, do you mean Nevada?” Amid a quick murmur of laughter again, Stewart said, “This is a lesson to all counsel not to do back-to-back arguments.”