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Federal court considers bans on gay nuptials in three states

Defenders face tough questions; Lawyers debate childrens’ health

Gay rights advocates Stuart Gaffney (left), and John Lewis, with the group Marriage Equality USA, waited to enter a hearing on the issue of gay marriage outside of the US Ninth District Court of Appeals Monday in San Francisco.AP Photo

SAN FRANCISCO — A federal appeals court in San Francisco waded again into the debate over the constitutionality of same-sex marriage, with lawyers for both sides arguing over whether legalizing it would harm children.

The three judges on the Court of Appeals for the Ninth Circuit — two of whom have ruled in previous cases in favor of gay rights — reserved many of their most pointed questions at the defenders of state bans in Idaho, Nevada, and Hawaii.

Judge Marsha Berzon appeared critical of the lawyer defending two of the bans, saying he was sending a message that families headed by same-sex couples were ‘‘second-rate.’’

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‘‘You’re sending a message that these are less-desirable families’’ she said. ‘‘That is what you’re doing. That is what you say you’re doing.’’

The hearing is the first time since it declared California’s gay marriage ban unconstitutional that the Ninth Circuit is listening to arguments over same-sex weddings in a political and legal climate vastly different from 2012, when it overturned California’s Proposition 8.

State and federal judges have been striking down bans in more than a dozen states at a rapid rate since a landmark US Supreme Court ruling last year.

The panel has not said when it might rule in the current case.

Attorney Monte Neil Stewart faced tough questions from Berzon on Monday as he defended Idaho’s ban.

Stewart told the panel that same-sex marriage would undermine children’s right to be raised by a father and mother. Same-sex marriage would undercut the message that a man who fathers a child should get in a relationship with the mother, he said.

‘‘This is a contest between two different messages,’’ Stewart said. ‘‘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 are valuable and important in the upbringing of children you bring into this world.’ Genderless marriage does not send that message, indeed it undermines it.’’

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Berzon questioned how gay marriage differed from the current model of marriage, which she called ‘‘genderless.’’ Berzon said that with gay marriages occurring, ‘‘the train has already left the station.’’

Deborah Ferguson, a lawyer representing gay marriage supporters opposed to Idaho’s ban, said children of same-sex couples do not have the same protections as children of heterosexual couples.

‘‘[They] don’t have two legal parents to protect them,’’ she said. ‘‘That is sending a powerful message. That tells those children that their parents’ marriages aren’t worthy of respect. That’s a very harsh message.’’

The court heard arguments about Nevada and Hawaii’s gay marriage bans as well.

A lawyer challenging Nevada’s ban said it sends a message to same-sex couples that they and their families are inferior.

Tara Borelli told a three-judge panel Monday afternoon that the ban is particularly damaging to children and humiliates them.

Stewart argued in favor of the Nevada ban in part on the basis that states had the right to make choices about gay marriage.

The panel previously heard arguments about Idaho’s ban and was set to hear about Hawaii’s ban.

Advocates of gay marriage in Hawaii have urged a federal appeals court to dismiss a case filed by same-sex couples, saying it was now moot because the state Legislature had approved gay marriages.

Clyde Wadsworth, who represents gay couples, told the circuit court on Monday that the original parties to the case now agree they no longer have any disputes.

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But Kenneth Connelly, of the Hawaii Family Forum, said the issues in the case could still resurface if the Hawaii Supreme Court strikes down the state’s same-sex marriage law.

After Governor Brian Sandoval of Nevada, a Republican, decided that the state would no longer defend the state’s ban, the cause was taken up by the private Coalition for the Protection of Marriage.

In the Idaho case, Governor C.L. Otter is appealing a lower court decision tossing out that state’s gay marriage ban.

In Hawaii, attorneys for the Hawaii Family Forum are asking the court to keep alive the forum’s legal case even though state lawmakers legalized same-sex marriage in December.

Of the Ninth Circuit judges hearing this case, Berzon and Ronald Gould were appointed by President Bill Clinton.

Judge Stephen Reinhardt, appointed by President Jimmy Carter, is considered one of the most politically liberal jurists on the 29-judge court.

The Ninth Circuit in 2012 invalidated Proposition 8 because it singled out a minority group for disparate treatment for no compelling reason.

The US Supreme Court dismissed the case last year without ruling on the legal merits of gay marriage.