Courts & Crime

Idaho fights on to defend same-sex marriage ban

In a last-ditch effort to save the state’s same-sex marriage ban, Idaho officials early Wednesday asked the Supreme Court to stay an appellate court’s ruling pending further consideration.

For at least a few hours, the effort filed on behalf of Gov. C.L. “Butch” Otter has succeeded in blocking the same-sex marriages that could otherwise have started taking place in Idaho at 8 a.m. Mountain Time.

“Each same-sex marriage performed will be an affront to the state and its citizens in being able to define marriage through ordinary democratic channels,” Idaho officials argued.

Justice Anthony Kennedy, who oversees emergency appeals from the circuit that includes Idaho, imposed the stay at least temporarily, giving same-sex marriage advocates until 5 p.m. Eastern Standard Time on Thursday to respond.

Kennedy could then forward the issue to the full court for a decision, which could take a couple of days.

The fast-paced legal battle followed the decision Monday by the U.S. Court of Appeals for the Ninth Circuit, striking down the same-sex marriage bans in Nevada and Idaho. Nevada officials have already given up on defending the state’s ban. The decision included a mandate that the states begin issuing same-sex marriage certificates.

The appellate decision, in turn, came one day after the Supreme Court declined to hear seven petitions concerning same-sex marriage bans in five states. The high court’s dismissal effectively left the same-sex marriage question to lower courts, at least for now.

Idaho’s 29-page emergency plea to the Supreme Court, signed by Washington, D.C. attorney Gene C. Schaerr, contends the state presents a “fundamentally different” case than those the Supreme Court dismissed on Monday.

In particular, Idaho argues the Ninth Circuit’s decision “exacerbates a deep and mature circuit split on the general question whether sexual orientation triggers some form of heightened scrutiny.”

A circuit split happens when different appellate circuits reach different legal conclusions, compelling the Supreme Court to step in. So far, all four appellate circuits that have ruled on same-sex marriage challenges have reached the same conclusion, making it easier for the high court to duck the issue this week.

Idaho’s argument, though, is that the Ninth Circuit’s reasoning differs markedly from other appellate circuits that applied a lower level of “rational basis” rather than “heightened scrutiny” review.

“If this court ultimately grants review,” Idaho officials argued, “there is a...strong prospect a majority will vote to reverse the Ninth Circuit’s equal protection holdings.”