UPDATED 9:47 a.m. Justice Kennedy ordered the Ninth Circuit to postpone its ruling temporarily, at least until a further order by Kennedy or by the full Supreme Court. Lawyers for same-sex couples were told to file a response by 5 p.m. Thursday to Idaho’s request. The order means that gay and lesbian couples will not be able to obtain marriage licenses in that state in the meantime.
UPDATED 1:43 p.m. This post has been expanded to discuss more fully the arguments Idaho officials made in seeking a delay of the Ninth Circuit’s decision.
With same-sex couples in Idaho legally free to seek marriage licenses this morning, state officials filed a last-minute plea to the Supreme Court to delay that opportunity. The plea came hours after the U.S. Court of Appeals for the Ninth Circuit had struck down Idaho’s ban on gay and lesbian marriages, and then had put its ruling into immediate effect.
The filing said that the state had asked the Ninth Circuit to put its ruling back on hold so that it could be challenged before the en banc Ninth Circuit and, later, before the Supreme Court. The request was submitted to Justice Anthony M. Kennedy, who handles emergency filings from the geographic area that includes Idaho. He has the option either of acting alone or of referring the request to the full Court.
In their application, Idaho officials argued that their case, if it gets to the Supreme Court, is narrower in scope than the other same-sex marriage cases that the Justices had refused to review on Monday. The questions it would raise are only preliminary to a return of the case to the Ninth Circuit, the document argued.
While conceding that the issues they want to raise bear “some similarity” to those in the cases the Justices turned aside on Monday, the Idaho document said that the state is not now asking the Court to issue a final, definitive ruling on whether the Constitution allows states to ban same-sex marriage. That would be up for analysis after the case went back to the Ninth Circuit, following a review by the Supreme Court, the application said.
The first difference between this case and the seven petitions denied review, the filing said, is that Idaho would be asking the Supreme Court to clarify the constitutional standard that is to be used in judging laws that are claimed to discriminate against gays, lesbians, and transgender people. The Ninth Circuit has adopted a “heightened scrutiny” standard, the application noted, but that conflicts with the approach taken in six other federal appeals courts, and that deep conflict needs to be resolved by the Supreme Court.
At most, Idaho said, there are three appeals courts which used that demanding standard in gay rights cases: the Second Circuit and, perhaps, the Seventh, in addition to the Ninth Circuit. Because that standard of review is more rigorous, it is much more difficult for a state to defend a law that is found to treat homosexuals less favorably than straight people.
The Supreme Court, although it has issued a number of rulings in favor of gay rights, has never spelled out what standard of review it uses.
Idaho’s application also said that, if it can get its case before the Supreme Court, it would also seek to argue that Idaho’s ban on same-sex marriage is not actually a law that discriminates against sexual orientation. It is a law that favors man-woman marriage, and thus it would allow a gay or lesbian person to get married to a person of the opposite sex.
Once the Supreme Court ruled in favor of Idaho on those two points, it could then send the case back to the Ninth Circuit to consider other challenges to the state’s ban by gay and lesbian couples, the state suggested.
Beyond those two points that the filing suggested make the Idaho case different, the state’s lawyers raised other issues that have been raised in previous petitions seeking Supreme Court review.