Latta

concurring:

I, of course, concur without reservation in the opinion of the Court. I write separately only to add that I would also hold that the fundamental right to marriage, repeatedly recognized by the Supreme Court, in cases such as Loving v. Virginia, 388 U.S. 1 , 87 S.Ct. 1817 , 18 L.Ed.2d 1010 (1967), Zablocki v. Redhail, 434 U.S. 374 , 98 S.Ct. 673 , 54 L.Ed.2d 618 (1978), and Tuner v. Safley, 482 U.S. 78 , 107 S.Ct. 2254 , 96 L.Ed.2d 64 (1987), is properly understood as including the right to marry an individual of one’s choice. That right applies to same-sex marriage just as it does to opposite-sex marriage. As a result, I would hold that heightened scrutiny is appropriate for an additional reason: laws abridging fundamental rights are subject to strict scrutiny, and are invalid unless there is a “compelling state interest” which they are “narrowly tailored” to serve. United States v. Juvenile Male, 670 F.3d 999, 1012 (9th Cir.2012) (citing Reno v. Flores, 507 U.S. 292, 302 , 113 S.Ct. 1439 , 123 L.Ed.2d 1 (1993)), cert. denied, - U.S. -, 133 S.Ct. 234 , 184 L.Ed.2d 122 (2012). Because the inadequacy of the states’ justifications has been thoroughly addressed, I write…

concurring:

I agree that Idaho and Nevada’s same-sex marriage prohibitions fail because they discriminate on the basis of sexual orientation and I join in the Opinion of the Court. I write separately because I am persuaded that Idaho and Nevada’s same-sex marriage'bans are also unconstitutional for another reason: They are classifications on the basis of gender that do not survive the level of scrutiny applicable to such classifications.

I. The Same-Sex Marriage Prohibitions Facially Classify on the Basis of Gender

“[Statutory classifications that distinguish between males and females are ‘subject to scrutiny under the Equal Protection Clause.’ ” Craig v. Boren, 429 U.S. 190, 197 , 97 S.Ct. 451 , 50 L.Ed.2d 397 (1976) (quoting Reed v. Reed, 404 U.S. 71, 75 , 92 S.Ct. 251 , 30 L.Ed.2d 225 (1971)). “To withstand constitutional challenge, ... classifications by gender must serve im *480 portant governmental objectives and must be substantially related to achievement of those objectives.” Id. “The burden of justification” the state shoulders under this intermediate level of scrutiny is “demanding”: the state must convince the reviewing court that the law’s “proffered justification”…

*464 Opinion by Judge REINHARDT; Concurrence by Judge REINHARDT; Concurrence by Judge BERZON.

Both Idaho and Nevada have passed statutes and enacted constitutional amendments preventing same-sex couples from marrying and refusing to recognize same-sex marriages validly performed elsewhere. 2 Plaintiffs, same-sex couples who live in Idaho and Nevada and wish either to marry there or to have marriages entered into elsewhere recognized in their home states, have sued for declaratory relief and to enjoin the enforcement of these laws. They argue that the laws are subject to heightened scrutiny because they deprive plaintiffs of the fundamental due process right to marriage, and because they deny them equal protection of the law by discriminating against them on the bases of their sexual orientation and their sex. In response, Governor Otter, Recorder Rich, and the State of Idaho, along with the Nevada intervenors, the Coalition for the Protection of Marriage (“the Coalition”), argue that their laws survive heightened scrutiny, primarily because the states have a compelling interest in sending a message of support for the institution of opposite-sex marriage. They argue that…