Idaho’s governor has told a federal judge that, if she strikes down the state’s six-year-old ban on same-sex marriage, state officials may ask the Supreme Court to take on the issue immediately, without waiting for an appeal through the U.S. Court of Appeals for the Ninth Circuit.  Lawyers for Governor C.L. “Butch” Otter laid out that alternative in a plea on Monday for an order — now, before any ruling is made — to postpone such a decision to allow an appeal to go ahead.

The motion made three main arguments for a “contingent” delay order:  first, the Supreme Court has already signaled that it does not want any same-sex marriages to occur until it can give “an authoritative ruling” on the issue; second, the Supreme Court also has indicated that it intends to grant review of the issue; and, third, there has been “chaos, confusion, conflict, uncertainty,” and new court fights in states where a court has nullified a ban but same-sex marriages were temporarily allowed before a stay was granted.

The Idaho case is one of more than seventy lawsuits filed in federal and state courts across the country.  By agreement of those involved in the Idaho case, it is being tried and will be decided by a magistrate judge, Candy W. Dale of Boise.  In that situation, federal law and court rules say, her decision will be final at the trial level, and any appeal would normally go to the Ninth Circuit Court and then on, potentially, to the Supreme Court.

Chief Magistrate Judge Dale held a hearing May 5 on a series of motions to resolve the case without a full trial, and she is expected to rule soon.  The case was filed in November by four same-sex couples, two who seek to marry and two who have been married in other states and want Idaho to recognize the legality of their union.  Under Idaho’s ban, adopted by the voters in 2006 by a margin of sixty-three to thirty-seven percent, such marriages are neither allowed nor recognized in the state.

Governor Otter’s move on Monday on the potential appeal path of the case appeared, from the reasoning in the supporting legal memorandum, to be based partly on a perception that the Supreme Court is poised to take an early case on the question, and partly on a sense of urgency about getting the ultimate issue settled before any more same-sex marriages are allowed to actually occur.

While the governor did not promise a definite plan to take the Idaho case directly to the Supreme Court after Judge Dale ruled, the motion made clear that such a plan was an alternative to attempting first to challenge the ruling in the Ninth Circuit.  The Ninth Circuit has already indicated that it may be a sympathetic tribunal for same-sex marriage, and that could be a factor in the Idaho governor’s planning.

The filing put much emphasis on the Supreme Court’s action on January 6, blocking a federal judge’s decision striking down Utah’s ban.  After that ruling, both the trial judge who issued the ruling and the U.S. Court of Appeals for the Tenth Circuit refused to put it on hold during an appeal, and hundreds of Utah same-sex couples were then able to get married.  The legality of those marriages is still in some dispute, although the federal government recognizes them for purposes of federal benefits.

With those Utah marriages occurring, the Supreme Court stepped in and ordered a postponement of the Utah decision until the case could be decided by the Tenth Circuit.  (That court held a hearing on the case last month, and a decision is awaited.)

The Idaho filing on Monday called the Supreme Court’s order on Utah an “extraordinary measure,” and interpreted it to mean several things:  the Justices understand that only their Court can resolve the issue finally; the Justices intend to grant review to rule on the ultimate question; and they intend “that same-sex marriages not occur in contravention of state law during the months leading up to the Supreme Court’s authoritative ruling.”

In reciting the legal reasons in favor of a “conditional” stay of any decision by Judge Dale against the Idaho ban, the governor’s attorneys read the Supreme Court’s decision last June in the case of United States v. Windsor as a strong indication that the Justices will settle the same-sex marriage issue by upholding state power, under federalism principles, to decide who may marry.  (The Windsor decision struck down part of a federal law, the Defense of Marriage Act, that barred federal benefits for same-sex couples already legally married under state law.)

While a number of judges have recently nullified bans on same-sex marriage by relying upon a different interpretation of what the Windsor case meant — that is, a strong decision against discrimination toward same-sex couples — a number of states have been arguing that it was, more than anything else, a states’ rights ruling.

Another Supreme Court decision, the ruling in April in Schuette v. Coalition to Defend Affirmative Action, is now figuring in a number of same-sex marriage cases, with states relying upon that as a further indication that the Supreme Court is willing to leave that issue to be decided at the state level.  Governor Otter’s motion on Monday made that argument.

(The Schuette decision upheld a voter-approved ban in Michigan on the use of race as a factor in choosing entering classes in the state’s public universities and colleges.  The main opinion expressed strong confidence in the ability of voters to decide sensitive social issues.)

Meanwhile, the question of delaying a court ruling in favor of same-sex marriages is before the Arkansas Supreme Court Tuesday afternoon, on a request by state officials to delay during an appeal a decision last Friday by a state trial judge in Little Rock against the ban.  Lawyers for the same-sex couples who won that case in the trial court were to file their responses to the state’s stay request by midday.

In another development Tuesday, the U.S. Court of Appeals for the Fourth Circuit held a hearing in Richmond on appeals by two county clerks in Virginia, challenging a federal judge’s decision to nullify a Virginia ban on same-sex marriages.  That decision is on hold during the appeal.

The Fourth Circuit is the second federal appeals court, since the Supreme Court’s Windsor decision, to hear an appeal on the constitutional issues surrounding same-sex marriages.  The Tenth Circuit, aside from its hearing last month in the Utah case, also held a separate hearing last month on an Oklahoma case.

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Recommended Citation: Lyle Denniston, Idaho: Quick appeal on same-sex marriage?, SCOTUSblog (May. 13, 2014, 1:21 PM), http://www.scotusblog.com/2014/05/idaho-quick-appeal-on-same-sex-marriage/