Idaho, Nevada, Hawaii gay marriage cases head to court

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Idaho, Nevada, Hawaii gay marriage cases head to court
FILE - In this July 19, 2014 file photo, Sari Van Poelje, in red, dances with Katharina during their commitment ceremony given by Elvis tribute artist Michael Conti, left, at the Viva Las Vegas Wedding Chapel in Las Vegas. Gay marriage isn't legal in Nevada but the Viva Las Vegas Wedding Chapel will perform a commitment ceremony for couples of any sex. The same-sex marriage debate returns Monday Sept. 8, 2014, to the same San Francisco federal appeals court that has already issued two significant rulings in support of gay weddings. The 9th U.S. Circuit Court of Appeals will consider separate lawsuits stemming from gay marriage bans in Idaho, Nevada and Hawaii. So far, 19 states and Washington D.C. now allow gay marriages even though the U.S. Supreme Court has yet to directly rule on whether states can impose bans. (AP Photo/John Locher, File)
Gay marriage supporters hold up signs and rainbow flags for passing traffic at the Ada County Courthouse in Boise, Idaho, on Friday, May 16, 2014. Idaho's gay marriage ban was overturned Tuesday when U.S. District Judge Candy Dale said the law unconstitutionally denied gay and lesbian residents their fundamental right to marry. On May 15, 2014, a three-judge panel of the 9th U.S. Circuit Court of Appeals issued a temporary stay while it considers whether a longer stay is needed. (AP Photo/Otto Kitsinger)
Sue and James Barclay are among a handful of protesters of a gay marriage celebration at the Ada County Courthouse in Boise, Idaho, on Friday, May 16, 2014. Idaho's gay marriage ban was overturned Tuesday when U.S. District Judge Candy Dale said the law unconstitutionally denied gay and lesbian residents their fundamental right to marry. On May 15, 2014, a three-judge panel of the 9th U.S. Circuit Court of Appeals issued a temporary stay while it considers whether a longer stay is needed. (AP Photo/Otto Kitsinger)
Gay marriage supporters hold up signs and rainbow flags for passing traffic at the Ada County Courthouse in Boise, Idaho, on Friday, May 16, 2014. Idaho's gay marriage ban was overturned Tuesday when U.S. District Judge Candy Dale said the law unconstitutionally denied gay and lesbian residents their fundamental right to marry. On May 15, 2014, a three-judge panel of the 9th U.S. Circuit Court of Appeals issued a temporary stay while it considers whether a longer stay is needed. (AP Photo/Otto Kitsinger)
Same sex marriage supporters celebrate in front of the Ada County Courthouse in Boise, Idaho, on Friday, May 16, 2014. Idaho's gay marriage ban was overturned Tuesday when U.S. District Judge Candy Dale said the law unconstitutionally denied gay and lesbian residents their fundamental right to marry. On May 15, 2014, a three-judge panel of the 9th U.S. Circuit Court of Appeals issued a temporary stay while it considers whether a longer stay is needed.(AP Photo/Otto Kitsinger)
Carmine Caruso of Boise waves a rainbow flag at the Ada County Courthouse in Boise, Idaho, on Friday, May 16, 2014. Idaho's gay marriage ban was overturned Tuesday when U.S. District Judge Candy Dale said the law unconstitutionally denied gay and lesbian residents their fundamental right to marry. On May 15, 2014, a three-judge panel of the 9th U.S. Circuit Court of Appeals issued a temporary stay while it considers whether a longer stay is needed. (AP Photo/Otto Kitsinger)
Bob Fulkerson, executive director of the Progressive Leadership Alliance of Nevada, introduces Reno Mayor Bob Cashell at a news conference in the parish of the Trinity Episcopal Church, Thursday. Feb. 13, 2014 in Reno, Nev. Several gay couples helped a coalition of advocacy groups in Nevada put a face on what they called marriage equality on Thursday, launching a push to get the Legislature in 2015 and voters in 2016 to change the state constitution to allow same-sex unions. (AP Photo/Scott Sonner).
Reno Mayor Bob Cashell, left, and Patricia Vazquez, a board member of the American Civil Liberties Union of Nevada, await their turn to speak Thursday, Feb. 13, 2014, at a news conference in the parish offices of the Trinity Episcopal Church announcing the launch of a campaign to change the state constitution to allow same-sex marriages. Married to the same woman for 49 years, Cashell said he can't imagine someone telling him he couldn't marry the person he loves. (AP Photo/Scott Sonner).
Sen. Jeff Merkley, D-Ore., right, with Senate Majority Leader Harry Reid, D-Nev., left, speaks at a news conference as the Senate made a historic vote on legislation outlawing workplace discrimination against gay, bisexual and transgender Americans, on Capitol Hill in Washington, Thursday, Nov. 7, 2013. Senate passage is a major victory for gay rights advocates in a momentous year that included the Supreme Court’s affirmation of gay marriage and granting of federal benefits to legally married same-sex couples. The enthusiasm of the bill's supporters was tempered by the reality that the Republican-led House, where conservatives have a firm grip on the agenda, is unlikely to even vote on it. (AP Photo/J. Scott Applewhite)
Proponents of gay marriage rally outside House chambers at the Hawaii Capitol in Honolulu on Friday, Nov. 8, 2013. The House debate played out into the night amid noisy crowds outside the chamber and maneuvering inside from lawmakers for and against the bill. (AP Photo/Oskar Garcia)
Gay marriage supporters rally outside the Hawaii Capitol in Honolulu ahead of a Senate vote on whether to legalize same-sex marriage on Tuesday, Nov. 12, 2013. (AP Photo/Oskar Garcia)
Gay marriage supporters rally outside the Hawaii Capitol in Honolulu ahead of a Senate vote on whether to legalize same-sex marriage on Tuesday, Nov. 12, 2013. The bill allowing same-sex couples to wed on the islands starting Dec. 2 is expected to pass easily barring any unexpected surprises. (AP Photo/Oskar Garcia)
Pianist Angie Delight leads proponents of gay marriage in a song before a House floor session at the Hawaii Capitol in Honolulu on Friday, Nov. 8, 2013. Hawaii House lawmakers are poised to take their final vote on a bill to legalize gay marriage on the islands, with strong chances the measure will pass. (AP Photo/Oskar Garcia)
Frank Kauhi, 54, of Honolulu, holds a sign opposing gay marriage before a House floor session at the Hawaii Capitol in Honolulu on Friday, Nov. 8, 2013. Hawaii House lawmakers are poised to take their final vote on a bill to legalize gay marriage on the islands, with strong chances the measure will pass. (AP Photo/Oskar Garcia)
Bill Smith of Kaaawa who opposes Hawaii's same-sex civil unions bill shares his view in front of the Hawaii State Capitol building in Honolulu on Tuesday, July 6, 2010. Gov. Linda Lingle must veto the bill, sign it into law or allow the measure to become law without her signature by midnight on Tuesday. If passed, the bill would allow both same-sex and opposite-sex couples to form unions with almost the same rights and responsibilities of marriage. (AP Photo/Eugene Tanner)
More then 40 Oahu residents in favor of Hawaii's same-sex civil unions bill civil gathered at the Hawaii State Capitol building in Honolulu to learn if Hawaii Gov. Linda Lingle will pass or veto the bill Tuesday, July 6, 2010. Gov. Lingle vetoed the same-sex civil unions bill. (AP Photo/Eugene Tanner)
Oahu residents both for and against Hawaii's same-sex civil unions bill civil gathered at the Hawaii State Capitol building in Honolulu to learn if Hawaii Gov. Linda Lingle will pass or veto the bill Tuesday, July 6, 2010. If passed the Hawaii civil union bill would allow both same-sex and opposite-sex couples form unions with almost the same rights and responsibilities of marriage. (AP Photo/Eugene Tanner)
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BY PAUL ELIAS

SAN FRANCISCO (AP) - The federal appeals court in San Francisco has already issued two significant gay rights rulings: In 2012, it struck down California's same-sex wedding ban and this year it extended protections against discrimination to gay and lesbians.

Now, three judges on the 9th U.S. Circuit Court of Appeals - all appointed by Democrats and two of whom joined in the civil rights ruling this year - are set to hear arguments Monday on gay marriage bans in Idaho, Nevada and Hawaii.

The hearings come as gay marriage supporters have piled up legal victories in federal courts across the country this year, nullifying bans in more than a dozen states.

On Thursday, the federal appeals court in Chicago rejected bans in Wisconsin and Indiana. Same-sex marriage opponents, however, scored a legal victory last week when a federal judge in Louisiana upheld that state's ban.

"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 map is changing. But until the Supreme Court of the United States makes the determination, it's state-by-state."

The same day as the Chicago court ruled, 15 states that allow gay marriage and 17 that don't asked the U.S. Supreme Court to settle the issue once and for all.

The Mormon church and four religious organizations also asked the Supreme Court to intervene. The Church of Jesus Christ of Latter-day Saints, in a statement Friday, said it joined a friend-of-the-court brief asking the high court to hear Utah's marriage case. It was joined by The United States Conference of Catholic Bishops, the National Association of Evangelicals, the Ethics & Religious Commission of the Southern Baptist Convention and the Lutheran Church-Missouri Synod. Each teaches that marriage is between a man and a woman.

The pro-gay marriage rulings have used the rationale the nation's high court used 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 didn't directly address whether states can impose bans and led to an explosion of litigation. But an increasing number of federal and state judges are adopting the court's reasoning in the 2013 case to invalidate bans, ratcheting up pressure on the Supreme Court to address the issue directly, legal analysts say.

A total of 19 states and Washington, D.C., now allow gay marriages. Lambda Legal says lawsuits are pending in most other states and Puerto Rico to invalidate same-sex marriage bans.

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 9th Circuit panel has allotted a combined two hours for three sets of arguments Monday. The court is expecting a big turnout and is limiting public seating in the courtroom through a lottery. The court will also stream the two hours of arguments live online.

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 Marsha 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. He also wrote an opinion in January that declared gays and lesbians a "protected class" and extended to them the same civil right protections against discrimination that the U.S. Supreme Court has previously promised only women and racial minorities.

Reinhardt, writing for the unanimous three-judge panel that also included Berzon, 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 band. Sandoval said that "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. The coalition's attorney Monte Stewart declined comment.

In the Idaho case, Gov. C.L. "Butch" Otter is appealing a lower court decision tossing out that state's gay marriage ban.

And 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.

SEE MORE: State-by-state guide to gay marriage

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Challenges to gay marriage bans - state by state - 2014 - same-sex marriage
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Idaho, Nevada, Hawaii gay marriage cases head to court
ARKANSAS: A state judge in May struck down the state's ban. The state Supreme Court brought marriages to a halt and is weighing state officials' appeal. Same-sex couples are also suing the state in federal court. The attorney general's office has asked that proceedings in both cases be put on hold while the U.S. Supreme Court considers whether to take up a case from Utah.
COLORADO: Several county clerks began issuing marriage licenses to same-sex couples in June despite the ban. A state judge struck down the ban July 9 but put the ruling on hold while the state appeals. On July 23, a federal judge also overturned the ban but issued a stay; a federal appeals court later extended the stay. The state Supreme Court on July 29 ordered all clerks to stop issuing licenses to same-sex couples. Republican Attorney General John Suthers says that he knows it's only a matter of time until gay marriage is legal but that he'll continue to defend the law.
FLORIDA: A federal judge declared the state's ban unconstitutional in mid-August, joining state judges in four counties. He issued a stay delaying the effect of his order, meaning no marriage licenses will be immediately issued for gay couples.
HAWAII: Same-sex couples sued in 2011 to overturn the state's ban. A federal court later upheld the ban, but then Legislature last year legalized gay marriage. The 9th U.S. Circuit Court of Appeals is scheduled to hear arguments in San Francisco on Sept. 8, the same day it will consider cases from Idaho and Nevada.
IDAHO: State officials are appealing a federal judge's decision to overturn the state's ban. The 9th Circuit Court of Appeals in San Francisco is scheduled to hear arguments Sept. 8, the same day it will consider appeals from Hawaii and Nevada.
INDIANA: A federal judge struck down the state's ban in June, and hundreds of couples wed before the 7th U.S. Circuit Court of Appeals in Chicago granted a stay of the ruling. The appeals court heard argument from both sides on Aug. 26, though no decision was immediately made.
KENTUCKY: Two Kentucky cases were among six from four states heard in the 6th U.S. Circuit Court of Appeals in Cincinnati on Aug. 6. Rulings are pending on recognition of out-of-state marriages, as well as the ban on marriages within the state.
MICHIGAN: The state's ban was overturned by a federal judge in March following a rare trial that mostly focused on the impact on children. The 6th U.S. Circuit Court of Appeals in Cincinnati heard arguments Aug. 6, and a ruling is pending.
NEVADA: Eight couples are challenging Nevada's voter-approved 2002 ban, which a federal judge upheld a decade later. The 9th U.S. Circuit Court of Appeals in San Francisco has scheduled arguments for Sept. 8, the same day the court will consider appeals from Hawaii and Idaho.
OHIO: Two Ohio cases were argued Aug. 6 in the 6th U.S. Circuit Court of Appeals, and a ruling is pending. In one, two gay men whose spouses were dying sued to have their out-of-state marriages recognized on their spouses' death certificates. In the other, four couples sued to have both spouses listed on their children's birth certificates.
OKLAHOMA: An appeals court tossed the state's ban in July but put its ruling on hold on hold pending an appeal, meaning same-sex couples can't marry in Oklahoma for now. Attorneys representing the Tulsa County court clerk -- who refused to issue a marriage license for a lesbian couple there -- asked the Supreme Court this month to hear the case.
TENNESSEE: The 6th U.S. Circuit Court of Appeals heard arguments Aug. 6 on an appeal of a federal judge's order to recognize three same-sex couples' marriages while their lawsuit against the state works through the courts. A ruling is pending.
UTAH: The 10th U.S. Circuit Court of Appeals in Denver ruled this summer that Utah must allow gay couples to marry, though it put the ruling on hold pending an appeal. The state has asked the U.S. Supreme Court to uphold the state's ban.
VIRGINIA: The 4th U.S. Circuit Court of Appeals in Richmond ruled in July that the state's voter-approved ban is unconstitutional. The state has appealed to the U.S. Supreme Court, which hasn't said whether it will accept the case. But the high court granted a request on Aug. 20 from a county clerk to delay implementation of the ruling, which would have allowed same-sex couples to marry beginning the next day.
WISCONSIN: A federal judge struck down the state's ban in June, leading to more than 500 same-sex weddings before the judge put her ruling on hold. The state appealed to the 7th U.S. Circuit Court of Appeals in Chicago, which heard arguments from both sides on Aug. 26 but made no immediate ruling.
ELSEWHERE: Other states with court cases demanding recognition of gay marriage are: Alabama, Alaska, Arizona, Georgia, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Carolina, North Dakota, South Carolina, South Dakota, West Virginia and Wyoming. Most lawsuits challenge same-sex marriage bans or ask states to recognize gay marriages done in other states.
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