June 2, 2014asked the Ninth Circuit Court of Appeals for an initial hearing with an 11-judge panel, instead of three judges, in Latta v. Otter. An initial en banc hearing in that case, the filing suggested, would allow the Ninth Circuit to have a circuit-wide, binding decision on the issue of same-sex marriage, as well as the issue of the level of judicial scrutiny that should be applied to laws that discriminate on the basis of sexual orientation.
The state’s filing notes that the Ninth Circuit has already fast-tracked the Idaho case, as well as a similar challenge from Nevada. The state argues that the appeals court’s resolution of same-sex marriage “will carry profound legal and broader social consequences for all people within the Ninth Circuit,” and that “a decision by an eleven-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.”
The state also points to the ongoing dispute in SmithKline Beecham v. Abbott Laboratories as a reason for the Ninth Circuit to resolve the scrutiny issue in the Idaho case. In the SmithKline case, a Ninth Circuit judge called for a vote on whether to rehear that case with an en banc panel. The case involves a juror who was discriminated against because of his sexual orientation, and the Ninth Circuit had held that a heightened form of judicial scrutiny is required. The parties to the case filed briefs, and neither party wanted the court to address the level of scrutiny issue even if it set the case for rehearing. The state suggests in its brief that the circumstances of that case don’t present the best vehicle for the Ninth Circuit to resolve the scrutiny issue.
The Idaho case, they argue, is better – advocates on both sides vigorously dispute the scrutiny issue, and that issue should be dealt with by an en banc panel, so that it has a uniform resolution across the Ninth Circuit.
Thanks to Kathleen Perrin for these filings
For more information on Latta v. Otter from The Civil Rights Litigation Clearinghouse, click here.