Idaho Gov. Butch Otter is asking the 9th Circuit U.S. Court of Appeals to send Idaho’s same-sex marriage case directly to a full, 11-judge panel of the court, rather than the usual three-judge panel.
“Because the marriage issue is so passionately contested and so divisive among the citizenry, the perception of the legitimacy of this court’s resolution of it must be of paramount concern,” attorneys for the governor argue in their motion. “A decision by an 11-judge panel stands far higher and stronger than does a decision by a three-judge panel, just as a decision by a three-judge panel stands far higher and stronger than does a decision by a single judge.”
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, 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 re-hearing by the larger panel, though that step isn’t required — and they can also appeal a three-judge panel’s ruling 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.”
In most circuits, an en banc hearing means all 15 of the circuit’s judges hear the case, rather than just a three-judge panel. But because the 9th Circuit is so large — it has 29 active judges — an en banc hearing means an 11-judge panel, consisting of the chief judge and 10 others selected by random draw.
“I think the state’s making the best argument it can — why not try, I guess,” Tobias said. “But even if it’s granted, I don’t know how much faster it’s going to be. It might even slow it down.” That’s because it could take longer to convene the larger panel, and for all 11 judges to decide on how to rule in their decision. “You’ve got 11 of them you’ve got to convince.”
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, Smith-Kline, that’s now pending an en banc review. Idaho argued that its case is a better test of that issue than Smith-Kline.
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. “I don’t think it rides or falls on that,” Tobias said. “That’s what most courts have done, so it doesn’t seem to me that’s the central issue in these appeals.”
Otter’s motion, written by private attorney Monte Stewart, who was hired by Otter’s office for the appeal, repeats a central argument Otter’s made unsuccessfully throughout the case: That 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.