The Ninth Circuit has ruled that the bans on same-sex marriage in Nevada and Idaho are unconstitutional. The Nevada case was remanded back to a district court, which means the final outcome might not come as quickly, but the decision’s mandate will issue in one week for Idaho, which will bring the number of marriage equality states up to 26 — presuming nothing happens in any of the other states impacted by other circuits’ decisions and the Supreme Court’s actions Monday.
It is possible that during the week before the order takes effect, Idaho could appeal to the Supreme Court and request a stay. Given the Court abandoned its stays when it refused this week to hear appeals from Wisconsin, Indiana, Utah, Oklahoma, and Virginia, it might be somewhat odd for it to institute a new stay on marriage equality in Idaho. Still, it’s not outside the realm of possibility.
Judge Stephen Reinhardt, writing for the majority, dismissed the many arguments put forth by Idaho Gov. Butch Otter (R) and the Nevada Coalition to Protect Marriage, a conservative group that intervened when Nevada state officials stopped defending their ban. For example, Reinhardt called out Otter’s claims that same-sex marriage would somehow make the institution “more adult-centric and less child-centric,” adding this rebuttal in a footnote:
[Otter] also states, in conclusory fashion, that allowing same-sex marriage will lead opposite-sex couples to abuse alcohol and drugs, engage in extramarital affairs, take on demanding work schedules, and participate in time-consuming hobbies. We seriously doubt that allowing committed same-sex couples to settle down in legally recognized marriages will drive opposite-sex couples to sex, drugs,and rock-and-roll.
Reinhardt also points out that if Nevada and Idaho really wanted to increase the number of children raised by their married biological parents, “they would do well to rescind the right to no-fault divorce, or to divorce altogether,” noting, “Neither has done so.” If biological parents were a priority, “they might do better to ban assisted reproduction using donor sperm or eggs, gestational surrogacy, and adoption,” but again, “Neither state does.”
In his conclusion, Reinhardt asserted that “the lessons of our constitutional history are clear: inclusion strengthens, rather than weakens, our most important institutions,” citing examples such as school integration improving education, opening juries to women, and ending “Don’t Ask, Don’t Tell.” “When same-sex couples are married, just as when opposite-sex couples are married,” he determined, “they serve as models of loving commitment to all.”
It’s important to note that Idaho does not currently offer LGBT nondiscrimination protections in employment, housing, or public accommodations, though Nevada does.