The 9th Circuit Court of Appeals this afternoon issued an order rescinding its order last night that specifically made its ruling on Idaho’s same-sex marriage case take effect immediately. The 9th Circuit said this afternoon’s order was issued to comply with U.S. Supreme Court Justice Anthony Kennedy’s stay on the ruling legalizing Idaho gay marriages. It’s in effect until further action by either the U.S. Supreme Court or the 9th Circuit.
Kennedy’s stay requires the plaintiffs in the case to file a response by 5 p.m. tomorrow. At that point, Kennedy could review both sides’ arguments and decide to end the stay, which would allow Idaho same-sex marriages to start Friday morning. Or, he could decide to extend it further; or, he could consult with the full U.S. Supreme Court to see if the full court wants to extend the stay further, which most likely would occur if the stay will extend beyond a few days. Clear as mud?
To complicate matters further, Gov. Butch Otter’s filing to the Supreme Court isn’t focused so much on the marriage issue as on the heightened-scrutiny standard the 9th Circuit applied in its decision. Otter’s attorneys contend that there’s now a split between circuits about the appropriate level of scrutiny for such cases, so the Supreme Court should take up that issue, and if it rejects heightened scrutiny, send the case back to the 9th Circuit to be considered under a lesser, rational-basis level of scrutiny.