Arguing that the U.S. Court of Appeals for the Ninth Circuit is in conflict with itself over gay rights issues, Idaho’s governor on Friday asked that court to put the state’s same-sex marriage appeal on a faster track.  Instead of having the case decided by a three-judge panel, the new filing contended, it should go directly to the full, eleven-member en banc court.

Governor C.L. Otter’s petition asserted that the Idaho case “is the optimal vehicle for authoritatively resolving” the constitutional standard that federal courts should use in judging the validity of state bans on same-sex marriage.   The Ninth Circuit is already pondering a request for en banc review of an antitrust dispute between two big drug companies that only incidentally involves gay rights.

The conflict that Idaho’s governor cited arose because the Ninth Circuit, in a 1990 decision, had ruled that claims of discrimination based on sexual orientation should be judged by the least demanding standard — “rational basis.”  But, in January, a three-judge panel — in the drug company antitrust case — ruled that such claims must now be analyzed under “heightened scrutiny,” a more rigorous test.

At least one judge on the Ninth Circuit has asked that the full court take on the standard-of-review issue in the drug company case, but there has been no action on that request so far.  Neither side in that case supports a new look at the standard-of-review issue, and Idaho’s filing on Friday said that the two companies “have no inherent interest” in that question and, in fact, “have shown a rather limited zeal” toward getting the issue resolved.

By contrast, the governor said, Idaho’s same-sex marriage appeal “unavoidably requires” an answer to that question, because the federal judge who struck down the state’s ban earlier this month relied upon the “heightened scrutiny” standard.  Moreover, the governor asserted, if that approach is now binding in the Ninth Circuit, that “will substantially frustrate in any number of settings” the governor’s obligation to uphold state laws.

In addition, the governor argued that the same-sex marriage issue itself is of such importance that en banc review, without waiting, is justified on that, as well.  The same-sex marriage issue is now awaiting decisions in four other federal circuits, and there are lawsuits on it in thirty-two states, the filing noted.  (Appendices to the new filing include a detailed listing of the appellate and trial level cases now pending.)

Governor Otter also argued that the marriage question “is so passionately contested and so divisive among the citizenry” that the courts must take care that they decide that issue in the strongest display of legitimate judicial review.  “A decision by an eleven-judge panel stands far higher and stronger than does a decision by a three-judge panel,” it said.

When the Ninth Circuit panel in January declared the new standard for sexual orientation claims, it found that such a standard was necessary from a between-the-lines reading of the Supreme Court’s decision last June in United States v. Windsor, striking down a part of the federal Defense of Marriage Act.

Although the Supreme Court did not specify a standard in the Windsor case, the Ninth Circuit said the scope of that ruling suggested the higher standard.  Before the Windsor reached the Supreme Court, the U.S. Court of Appeals for the Second Circuit became the first in the country to adopt “heightened scrutiny” for gay rights cases.

All other federal appeals courts, at that time, had relied upon the “rational basis” approach.  Now, the Ninth Circuit has abandoned that approach — for the time being, at least.

The Ninth Circuit has pending before it, in addition to the Idaho case, three other same-sex marriage appeals — from Nevada, Oregon, and Hawaii.  (The Hawaii case may be dismissed because the state on its own has now approved same-sex marriage, and the Oregon case involves an appeal by a private group opposed to same-sex marriage, seeking to stand in for state officials who refused to defend that state’s ban. Oregon state officials and the same-sex couples in that case have asked the Ninth Circuit to dismiss the appeal.)

The same group involved in the Oregon case at the Ninth Circuit — the National Organization for Marriage — has asked the Supreme Court in a separate filing to block same-sex marriages in that state until the group’s appeal is decided.  Justice Anthony M. Kennedy has asked for replies by Monday afternoon from Oregon state officials and from the same-sex couples who won that case in a federal district court.


Posted in Cases in the Pipeline, Featured, Same-Sex Marriage

Recommended Citation: Lyle Denniston, Idaho: Faster track on same-sex marriage?, SCOTUSblog (May. 31, 2014, 9:58 AM),