UPDATED 5:54 p.m.  The Ninth Circuit Court has told lawyers for same-sex couples who challenged the Idaho ban to reply by November 12 to the en banc rehearing petition.

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After being rebuffed by the Supreme Court and by a federal appeals court on the issue of same-sex marriage, and after saying that the state would no longer resist court orders allowing such marriages, the governor of Idaho on Tuesday night filed a plea for new review by the full U.S. Court of Appeals for the Ninth Circuit.

The plea by lawyers for Gov. C.L. “Butch” Otter, seeking to have a three-judge panel’s decision issued on October 7 wiped out and en banc review to begin, argued that the panel ruling was “judicial policymaking masquerading as law.”

The governor’s lawyers contended that the Ninth Circuit three-judge panel made three key errors — each of which was sufficiently serious to be reviewed by an eleven-judge court — in striking down the state’s prohibition on same-sex marriages.

First, the petition argued, the decision conflicted with a 1972 decision rebuffing a claim that it is unconstitutional for states to ban such marriages, and conflicted with Supreme Court decisions in support of state power to define marriage, including a ruling as long ago as 1885.

Second, the filing said, the panel was wrong in judging the Idaho ban by a more rigorous constitutional test (“heightened scrutiny”), in conflict with other courts’ decisions on the test.

And, third, Idaho’s ban, the governor’s lawyers argued, does not discriminate based on sexual orientation, because it seeks only to promote opposite-sex marriage and excludes all other types of relationships, thus not targeting same-sex couples particularly.

The three-judge panel ruled that the ban did discriminate by singling out same-sex couples for exclusion from marriage, and that exclusion could not pass “heightened scrutiny” analysis.  The ruling was put temporarily on hold while state officials asked the Supreme Court to block its implementation.   After the Supreme Court on October 10 turned down the state’s request, the Ninth Circuit put its decision into effect, and same-sex couples have since been marrying in the state.

While the issue was awaiting court actions, Gov. Otter had said that, if those actions failed, the state should not continue to press the issue.  However, on Tuesday, he apparently changed his mind, and told his lawyers to ask the Ninth Circuit to reconsider.

 

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Recommended Citation: Lyle Denniston, Idaho governor pursues new test of same-sex marriage (UPDATED), SCOTUSblog (Oct. 22, 2014, 11:56 AM), http://www.scotusblog.com/2014/10/idaho-governor-pursues-new-test-of-same-sex-marriage/