Ninth Circuit Eviserates Marriage Equality Opponents

Judge Marsha Berzon

While on vacation I was largely out of the loop and writing few blog posts due to the horrifically bad satellite Internet available aboard the Norwegian Jade.  I spent several hundred dollars for it and it was a challenge to even be responsive to client and office e-mails.  Thus, some things I will write about over the next few days may be "old news," but topics I want to put in my two cents on.  One such story is the berating that the GOP/Christofascist opponents of marriage equality took during oral arguments at the 9th Circuit Court of Appeals last week.  It is wonderful, in my view, to see the defenders of religious based bigotry finally being openly ripped apart by appellate court judges.  Towleroad has a great run down portions of which are quoted below:

A soft-spoken attorney representing Idaho started his state's anti-marriage equality argument by suggesting that allowing gays to marry violates the "bonding right" of children that they will be raised by their biological mothers and fathers. It took Judge Marsha Berzon just 15 seconds to ask her first question: "What is that word you're using before 'right'"? Judge Berzon can hear just fine; it's just that she had never heard anyone make such a ridiculous claim before today. The rest of the hearing followed similarly.

[I]n a nearly two-hour long interrogation of attorneys from Idaho and Nevada that may not have been as bombastic as Judge Posner's treatment of attorneys from Wisconsin and Indiana in the Seventh Circuit, a hearing which resulted in a marvelous unanimous victory ("Go figure!"), but was every bit as damaging to the forces opposed to marriage equality.

It also brought marriage equality full circle. Judge Reinhardt was the judge that wrote the first decision from a federal appellate court on marriage equality, affirming District Judge Vaughn Walker's pioneering rejection of California's Prop 8. We all know how that case turned out.

And we know what's happened since: a Supreme Court decision in United States v. Windsor striking down the Defense of Marriage Act and a long streak of pro-marriage equality decisions from the lower federal courts, including several appellate courts.

The judges' questioning was direct and they expressed a similar, though less visible, frustration with the misdirection and misleading statements from the anti-equality attorneys as Judge Posner. The tone of the hearing suggested that marriage equality supporters are finally out of the closet, following a tidal wave of an emerging consensus of the legitimacy and morality of marriage freedom for all.

Judge Berzon asked the most direct questions, sifting through the muck of Idaho's nonsensical argument about children needing to be raised by their biological parents.

"But heterosexual men and women aren't going to enter into same-sex marriages. So, what's the issue?" she asked. Indeed. Idaho was trying to avoid the reality that what the state wants to do is not really create a situation where kids are raised by their biological moms and dads, but just ban gays from marrying. These are two very different and clearly unrelated things.

But the message of the man-woman marriage is that we need to create a stable bond that is in the best interests of the child, argued the Idaho attorney. Huh, Judge Berzon wondered. How is it, she asked, supportive of stable marriages and a benefit to children to have them raised outside of supportive same-sex marriages rather than inside supportive same-sex marriages?

After several agonizing stutters: The worst thing the state can do to undermine the message of stability is to create something new--namely, "genderless marriage."  With that, Judge Berzon had it. She called out Idaho on its argument that man-woman marriages provide the added benefit of complementary parenting styles and skills, an argument that is not only sexist and based on traditional notions that women nurture and men discipline, but also a completely unconstitutional basis for discrimination.

The greatest, and most revealing, line came during Idaho's rebuttal, in which Judge Berzon brought up the parallel of Loving v. Virginia, the 1967 case that outlawed bans on interracial marriage. As we all know, similar arguments were raised by Virginia: we just don't know what will happen, we worry for the children of mixed-race couples, those households will be unstable, the verdict is out on whether they are good parents, and the state has debated and made the decision, though the democratic process, to ban the prospect.

Judges are willing to call out the anti-equality side on their bald lies and misleading statements.

In the end, this was a rough day for those opposed to marriage equality. Three progressive judges, though more muted in their questioning than Judge Posner was at the Seventh Circuit, were no less skeptical of the homophobic, ahistorical, misleading, misdirected arguments against allowing gays to marry. The hearing was a testament to how far we have come since the last time marriage equality was before Judge Reinhardt.