Idaho Gov. Butch Otter is asking the 9th U.S. Circuit Court of Appeals to send Idaho’s same-sex marriage case to a full, 11-judge panel of the court, rather than the usual three-judge panel.
“A decision by an 11-judge panel stands far higher and stronger than does a decision by a three-judge panel,” the governor argued in his motion. He noted that same-sex marriage is “passionately contested and … divisive.”
U.S. Magistrate Judge Candy Dale last month overturned Idaho’s constitutional ban on same-sex marriage, saying it violated the U.S. Constitution’s guarantees of equal protection and due process. Four Idaho couples had sued, saying their constitutional rights were violated by the state not allowing them to marry or not recognizing their legal marriages from other states.
Otter and Attorney General Lawrence Wasden immediately appealed Dale’s decision to the 9th Circuit, which issued a stay, preventing same-sex marriages from beginning in Idaho while the case is on appeal. The 9th Circuit also ordered that the case be handled swiftly, with briefing over the summer and arguments in the second week of September.
Carl Tobias, a professor at the University of Richmond School of Law in Virginia, said it’s highly unusual for an appeal to go directly to an “en banc” hearing. Typically, a three-judge panel hears appeals, and parties can then request a rehearing by the larger panel or appeal directly to the U.S. Supreme Court. “The request is unusual, and the grants are very rare,” Tobias said. “Over 99 percent of the cases are heard initially by a three-judge panel.”
Tobias said if the request is granted, it might make the process slower. It could take longer to convene the larger panel and for all 11 judges to rule.
The state asked for the larger panel of judges to decide two issues: the marriage issue, and whether “heightened scrutiny” now applies to cases involving discrimination on the basis of sexual orientation, as held in an earlier 9th Circuit case. That heightened scrutiny makes such discrimination cases easier to prove.
Dale’s decision, however, held Idaho’s same-sex marriage ban unconstitutional under both that heightened scrutiny test and the lower “rational basis” test that the state argued should be applied.
Otter’s motion, written by private attorney Monte Stewart, who was hired by Otter’s office for the appeal, repeats a central argument Otter has made unsuccessfully throughout the case: If the courts say states must allow same-sex marriage, they’re doing away with the institution of opposite-sex marriage in favor of “genderless marriage,” and that that change will harm children in the future.
Tobias noted that 32 states are involved in litigation over the issue. “All the other courts have rejected that kind of idea,” he said.