Idaho’s governor today asked the Supreme Court to wait to act on new same-sex marriage cases until after officials from his state can file an appeal, early next month. If the Court accepts the suggestion, that could slow down the process of setting up review of the constitutional dispute during the current Term.
The Idaho ban has been struck down by the U.S. Court of Appeals for the Ninth Circuit, but that court is now considering a motion by Governor C.L. “Butch” Otter to reconsider before the en banc court. In the new filing at the Supreme Court, the governor said that, if the Ninth Circuit does not grant rehearing within the next few days, state officials will move ahead with a plan to seek Supreme Court review on January 5.
As of now, the Court has five pending cases on the same-sex marriage issue. Four are petitions challenging a ruling by the U.S. Court of Appeals for the Sixth Circuit, upholding marriage bans in four states. The fifth case is from Louisiana, seeking review of a federal judge’s ruling upholding a ban in that state.
The Louisiana case is now scheduled for the Justices’ first look at the next Conference, on January 9, according to a scheduling note Wednesday on the Court’s electronic docket. That docket also indicated that the four petitions from the Sixth Circuit are being handled as a group, although they have not yet been distributed to the Justices. There is one more date on which the cases could be sent to the Justices for consideration on January 9: next Tuesday.
The Idaho governor’s filing was in the form of an amicus (“friend of the court”) brief, filed in all five of the pending cases. It was in that form because Idaho has not formally appealed to the Justices, while it awaits the rehearing plea it has pending at the Ninth Circuit.
Governor Otter specifically asked the Court to wait for the coming Idaho appeal before deciding which cases it would hear, and then add the new Idaho appeal to the review process. As lawyers in other same-sex marriage cases have done, the governor’s lawyers suggested that his state’s case would be the best one for the Court to consider because it raises some special issues.
Among other reasons given in the brief, the state’s lawyers argued that the Idaho case is the only one in which state officials have argued that their ban on same-sex marriage licensing and recognition could withstand even a more rigorous constitutional standard. The Idaho petition will be reaching the Court from a federal court of appeals that has adopted a more demanding test for judging laws that allegedly treat same-sex couples differently from opposite-sex couples.
In addition, the Idaho filing said that the state’s case is the only one in which the issue of religious freedom would be at issue. The state contends that opening up marriage to same-sex couples could have a negative impact on others’ religious freedom.
The Court is not expected to respond directly to the Idaho amicus brief at this point. But that brief presumably will be weighed when the Court does schedule the petitions challenging the Sixth Circuit’s decision upholding state bans for consideration.
If the Court does not grant review of any same-sex marriage case by about mid-January, the chances are that it would not rule on the constitutional dispute during the current Term, which is likely to run until late June or early July.