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Mandate in Idaho marriage case temporarily stayed by Justice Kennedy

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It's time for marriage equality. Attribution: JEWEL SAMAD/AFP/Getty Images
It’s time for marriage equality. Attribution: JEWEL SAMAD/AFP/Getty Images
UPDATE: A new order from Justice Kennedy clarifies that only the Idaho mandate is stayed, and not the one in the Nevada case. The Coalition for the Protection of Marriage, who intervened in the case to defend Nevada’s ban is asking the Ninth Circuit for a stay, however.

This morning, Justice Kennedy temporarily put the mandate in the Idaho marriage case, Latta v. Otter, on hold “pending further order” either by himself or the full Court.

That action comes this morning as the state officials defending the ban filed emergency motions in the Ninth Circuit Court of Appeals (here and here) arguing that they need time to petition for rehearing en banc or for full review by the Supreme Court.

They made the same request to the Supreme Court, through Justice Kennedy in his capacity as Circuit Justice for the Ninth Circuit. The argument put to Justice Kennedy is that while the Court has denied seven cert petitions in marriage cases this week, this case is different and the Court would only have to resolve “the heightened scrutiny point just discussed [there is a circuit split on that issue] and the question whether man-woman marriage laws discriminate based on sexual orientation at all.”

Justice Kennedy has called for a response to the request for a stay of the mandate by 5PM on Thursday.


  • 1. brandall  |  October 8, 2014 at 7:29 am

    We are now all suffering from PSTS. Post SCOTUS Traumatic Syndrome. It is the result of repeatedly being optimistic the gay=stay era is over. Only to be repeatedly seeing our hopes temporarily dashed.

  • 2. franklinsewell  |  October 8, 2014 at 7:29 am

    What? This is craziness.

  • 3. JayJonson  |  October 8, 2014 at 7:33 am

    I think the operative word is "temporary." At worst, Justice Kennedy or SCOTUS itself will give Idaho time to file a request for an en banc hearing at the Ninth Circuit or an appeal to SCOTUS, but I don't think that is likely.

  • 4. SethInMaryland  |  October 8, 2014 at 7:33 am

    let wait and see , maybie we he's just giving them some time before turning them down,

  • 5. brandall  |  October 8, 2014 at 7:33 am

    I don't see how there is anything new in the 9th's decision that would merit cert and thus a stay.

    The Utah and Virginia SCOTUS stays were upheld by a review of the entire court. I am hoping this is what Kennedy is doing and nothing more. At least they are not on vacation this time.

  • 6. RLsfba  |  October 8, 2014 at 7:36 am

    Updated map from Slate. They did this yesterday, but left Idaho light grey with no explanation. I saw a story that said the Idaho case is different because of the level of scrutiny?

  • 7. BillinNO  |  October 8, 2014 at 7:36 am

    Ive read the bio of the Judge who just issued a marriage license in Charleston, SC. He seems like a pretty solid member of the judiciary. Im hoping we see more of this in the other states- wasn't it St. Louis where this was happening earlier? A little more of this favorable interpretation by sympathetic clerks and judges will demoralize and wear out our dead-ender opposition.

  • 8. franklinsewell  |  October 8, 2014 at 7:37 am

    Some folks yesterday indicated that they might stay based on the application of heightened scrutiny under the SmithKline test. Maybe, Kennedy wants to speak about the use of heightened scrutiny in these cases, since the opinion in Windsor is what the 9th Circuit used to extrapolate the heightened scrutiny test in SmithKiline.

  • 9. jpmassar  |  October 8, 2014 at 7:37 am

    Where is Duncan Idaho when you need him?

  • 10. hopalongcassidy  |  October 8, 2014 at 7:38 am

    Well, shit.

  • 11. TDGrove  |  October 8, 2014 at 7:40 am

    I'm guessing/hoping that this is because the 9th rushed the mandate out instead of following the normal procedure. This short-circuited the chance for Idaho to file whatever silliness or request an en banc. Hopefully Kennedy is just giving them the time for that. I was a bit surprised when I read about the mandate happening right away and this might be the price to be paid for that.

  • 12. brandall  |  October 8, 2014 at 7:40 am

    OK, anything is possible. But, if he wants to take up that angle, then grant cert, but deny the stay. It would not change the outcome of the 9th's decision.

  • 13. franklinsewell  |  October 8, 2014 at 7:41 am

    So frustrating. Why would Kennedy also stay the mandate in the Nevada case (which he did)? The Governor and the Attorney General have said they would not appeal. The intervenors do not have standing.

  • 14. RemC_Chicago  |  October 8, 2014 at 7:41 am

    Can someone please help me close loopholes in my email to the governor's counsel before I hit the send button? It's not that I expect a response, but I want to be on solid footing in my points.

    Dear Mr. Perry,

    I read your quote in the Idaho Statesmen:

    "Each same-sex marriage performed will be contrary to the interests of the state and its citizens in being able to define marriage through ordinary democratic channels," wrote Thomas C. Perry, counsel for the governor…

    I'm genuinely curious. Isn't the process by which the Supreme Court ultimately ruled part of the ordinary democratic channels that we rely on in the U.S.?

    According to ruling from the Ninth Court, "…a primary purpose of the Constitution is to protect minorities from oppression by majorities. As Windsor itself made clear, “state laws defining and regulating marriage, of course, must respect the constitutional rights of persons.”

    Does this not also apply to the citizens of Idaho?

  • 15. NetAmigo  |  October 8, 2014 at 7:41 am

    I can't imagine this will turn out substantively different than what we got Monday from this court.

  • 16. RemC_in_Chicago  |  October 8, 2014 at 7:43 am

    I was under the impression that en banc hearings are not easy to come by, in any case.

  • 17. franklinsewell  |  October 8, 2014 at 7:43 am


  • 18. franklinsewell  |  October 8, 2014 at 7:45 am

    RLsfba: Yes, the 9th circuit is the only circuit in the nation to have applied a heightened (if not strict) level of scrutiny to laws impacting the constitutional rights of gay and lesbian citizens. Many commentators on this blog have suggested that the court may want to take a case from the 9th because of the 9th's decision to do so.

  • 19. franklinsewell  |  October 8, 2014 at 7:48 am


    It's the Idaho Statesman (singular) not Statesmen (plural).

    Also, Mr. Perry is defining ordinary democratic channels as "votes of the people," and not the decisions of courts (as the GOTP is want to do).

  • 20. SethInMaryland  |  October 8, 2014 at 7:48 am

    like said about this probally just a way to slow the mandate a little bit for now to give Idaho time to appeal

  • 21. brandall  |  October 8, 2014 at 7:48 am

    He is certainly not standing with George Washington or Joe Montana…this is so frustrating. I can't imagine show someone who wanted to be married today must feel.

  • 22. Scottie Thomaston  |  October 8, 2014 at 7:48 am

    They're not – it's incredibly unlikely the Ninth Circuit would grant rehearing en banc. BUT, having said that, it's a good delay tactic for the state because there would be dissents from denial, plus it would take time to poll the judges on whether they want it reheard. The process can last awhile even with a denial.

  • 23. franklinsewell  |  October 8, 2014 at 7:51 am

    As always, Scottie's right. The effect of the decision in SmithKline was upheld for a -long- time (months) because one judge on the 9th circuit asked the parties to brief regarding a rehearing en banc. (The parties didn't even ask for it.)

  • 24. Scottie Thomaston  |  October 8, 2014 at 7:53 am

    It appears the Nevada case is listed in the order, which is even weirder.

  • 25. RemC_in_Chicago  |  October 8, 2014 at 7:54 am

    Thanks! I'll correct the newspaper reference and modify the reference to his channels.

  • 26. Zack12  |  October 8, 2014 at 7:54 am

    They aren't but they can be used to drag things out.

  • 27. franklinsewell  |  October 8, 2014 at 7:56 am

    Amen Scottie. I've reached out to a contact I have to ask why that case was included in the order and why they weren't asked to submit briefs.

  • 28. RemC_in_Chicago  |  October 8, 2014 at 7:57 am

    Given that Monday's denials from SCOTUS were on the previously appealed cases, it would be interesting if the heightened scrutiny issue out of the Ninth prompts the Supremes to grant cert.

  • 29. TomPHL  |  October 8, 2014 at 8:01 am

    Can the SCOTUS have really not been aware that when they took their thumb out of the dike on Monday it would soon give way? Can the opponents of marriage equality really believe that they can ultimately win in the courts. That the SCOTUS wants to take up the scrutiny level question is dubious. The consensus seems to be that justice Kennedy doesn't like the scrutiny level framework anyway. The sex discrimination argument is in a concurrence and also not something the SCOTUS is likely to want to rule on. That Idaho's actions are anything but political theater seems unlikely. Realistically all they can hope for is delay. They do have a right to request an en banc hearing, but to expect a positive response, which would be the only reason for a stay to be granted, seems unrealistic. I guess I will have to wait until Friday to have my questions answered. Does anyone else find that the automatic spell check doesn't like to type "en banc"

  • 30. BillinNO  |  October 8, 2014 at 8:04 am

    SSM advocates to hold Press Conference in Columbia, SC in a couple hours. At least one license granted. Google Palmetto State Politics

  • 31. sfbob  |  October 8, 2014 at 8:09 am

    Really makes no sense. The Nevada case was remanded to the district court so nothing has been issued there at all.

  • 32. Fledge01  |  October 8, 2014 at 8:16 am

    the 6th had a blueprint on how to write a ruling that that would not be reviewed by the Court. I haven't read the 6ths ruling yet. Did they state in their ruling that their decision would be the same even when heightened scrutiny was not applied. Am I correct to say that a concurring opinions that brought in sex discrimination and the such are not the actual legal holding? Also, is it correct to say the concurrences just say "I agree in the operative outcome" and for the actual reasoning to become binding law you need a majority of the court to sign on to the same reasoning? If so, all the extra statements that in the 6ths ruling (that were not raised in other circuit rulings), and that SCOTUS may not agree with, are just dictum and not a basis for granting cert?

  • 33. JayJonson  |  October 8, 2014 at 8:23 am

    I understand that Clark County was supposed to be issuing marriage licenses today. Will this alter that plan?

  • 34. DACiowan  |  October 8, 2014 at 8:24 am

    Is the Nevada case being put on hold a side effect of the Ninth issuing the opinion and mandate for both cases in the same papers?

  • 35. Fledge01  |  October 8, 2014 at 8:30 am

    Perhaps an en banc hearing would be a way for the 9th to clean up the ruling to address make it consistent with how the other circuits have ruled. I agree that sexual orientation should have higher scrutiny, but what real world impact does if the court decides to allow gay marriage and not use the heightened scrutiny. They can always apply heightened scrutiny to sexual orientation on some other issue down the road. Do we really want Scalia to have a voice on the scrutiny issue for marriage equality?

  • 36. SeattleRobin  |  October 8, 2014 at 8:31 am

    Yeah, to everything. Delay is absolutely the only thing going for him. SCOTUS has already had the opportunity to weigh in on heightened scrutiny and they dodged it. They made it obvious they don't want to rule on marriage equality, and are content to let lower court decisions striking down the bans stand, regardless of reasoning used. Most of all though, arguing over heightened scrutiny is a losing proposition, because the lower courts have already decided the bans can't even pass muster under rational basis.

  • 37. brandall  |  October 8, 2014 at 8:33 am

    Holy "craps". Yes.

  • 38. guitaristbl  |  October 8, 2014 at 8:38 am

    I am really confused and frustrated right now. WHY ? You just denied cert to 5 cases with the same questions at hand on Monday ! You want to do what here Kennedy ? Grant cert just for scrutiny ? Every other court that has decided so far has used different approaches on the issue (see for example Posner's 4 step analysis) and have reached the same conclusions through somewhat different roads and rationales ! And now the SmithKline decided scrutiny is the problem ? And how will you decide only scrutiny without getting to the marriage issue ?

    It's proposterous, are they high or something in ths court ? Why didn't he refer it to the whole court in first place ?

    The only other logical explanation was the immediate issuing of the mandate from the 9th, which did no leave space to Otter to do all the procedural nonsense he can (file for en banc, get O' Scannlain worked up to grant it while everyone else opposes it thus dragging the denial longer etc). Ok and then he will petition for cert and if the 6th has not decided by then what will you do ? Grant a pro equality decision while denying all the others on Monday ? You did know what level of scrutiny the 9th will apply since SmithKline was finalized, hardly a surprised it was applied after all ! But you still DENIED cert. I mean..what ?

    And then we have Nevada. Issuing a state on a case that has Hollingsworth, SCOTUS PRECEDENT, all over it !

    Are they high on this court or has just Kennedy lost it ???

    Oh and P.S. If you don't want other courts guessing what level of scrutiny you used in Windsor, you could have CLEARLY STATED IT instead of staying now a ruling based on that !

  • 39. DrBriCA  |  October 8, 2014 at 8:42 am

    Agreed. SCOTUS already passed over the 2nd CA's heightened scrutiny section of Windsor during the hearing last year, and they chose to deny cert for the 7th CA's ruling, in which Posner laid the groundwork for heightened scrutiny as well. It's hard to see SCOTUS wanting to take the Idaho appeal in order to tackle the issue head on.

    And the Nevada inclusion to the stay is rather unfortunate (I suppose it's to block the scenario where various clerks in Alaska, Montana, and Arizona point to the stay as a reason not to issue whereas other point to Nevada as permission to issue licenses. But still, frustrating, esp. when the governor and attorney general are not appealing and already declared marriage equality the "law of the land" last night.)

    While it would be great to finally get a nationwide ruling on scrutiny levels for LGB, it would feel almost like a slap in the face for SCOTUS to deny cert in rulings from 3 circuits dealing with marriage head on only to once again take a 9th CA ruling and sidestep the issue for a separate topic (i.e. standing, scrutiny). Although it would be hard to fully avoid merits on ME this time around if Latta makes it to review.

  • 40. JayJonson  |  October 8, 2014 at 8:44 am

    I don't think we should get overwrought by this temporary stay. I am sure that our attorneys will address all the issues and explain why it doesn't make sense to stay this ruling. The fact that Kennedy gave such a short deadline may indicate that he will rule quickly and likely reject the petition.

  • 41. DACiowan  |  October 8, 2014 at 8:47 am

    My gut feeling is that this is merely giving Idaho a chance to get shot down by SCOTUS in person so Governor Whatta Name can't say "Well they haven't denied us yet." It sucks that Nevada is included, but does Kennedy have the power to stay only part of the mandate (Idaho) but not the other (Nevada)?

  • 42. franklinsewell  |  October 8, 2014 at 8:54 am

    The attorneys on our side in Nevada has asked for a clarification from the court. They think it is a mistake.

    They think so because of all the reasons we've talked about: There are no proper party defendants; there is no reason to delay marriages in Nevada; etc., etc.

    They also said on the radio that, in case it is not an error, they will file something with the Supreme Court explaining all the reasons why it was an error to include Nevada in the stay.

  • 43. guitaristbl  |  October 8, 2014 at 9:01 am

    And to add salt to the wound those fillings from Idaho make no sense. Really ? A good chance to have the panel's decision reversed from an en banc court in the 9th ? And after Monday's decisions from SCOTUS ? Who buys that ? They even ADMIT in their briefs the legal and financial harms that may occur if they grant marriage to same sex couples and then take it away ! And they also state that there is plenty of scientific evidence to support their notions about marriage etc. Care to cite the studies ?!

    And with such emergency motions, with such unsupported, unrealistic and debunked nonsense they had a stay granted ?!

  • 44. guitaristbl  |  October 8, 2014 at 9:08 am

    I do hope you are right because I am literally furious right now.

  • 45. SeattleRobin  |  October 8, 2014 at 9:13 am

    It sounds like you're suggesting that an en banc decision could issue a decision using rational basis. But SmithKline is binding. If they determine the law discriminates on the basis of sexual orientation they MUST apply heightened scrutiny. And as wonderful as I thought Berzon's concurrence was, laying out the argument for sex discrimination, rather than orientation, I can't see it being adopted as the foundation argument for their opinion. And if that were to happen, we're right back to heightened scrutiny again anyway.

  • 46. guitaristbl  |  October 8, 2014 at 9:17 am

    Actually if sex discrimination is taken as the main point to strike down the bans, intermediate scrutiny applies.

  • 47. RobW303  |  October 8, 2014 at 9:25 am

    To clarify: in South Carolina, there is a 24-hour waiting period. The word I've gotten is that judge has accepted license applications, but as of yet has not issued any licenses. The media, as usual, have been indulging in misleading headlines and sound bites.

  • 48. franklinsewell  |  October 8, 2014 at 9:25 am

    The 6th hasn't issued a ruling.

  • 49. franklinsewell  |  October 8, 2014 at 9:26 am

    They have apparently said they will not issue licenses today as previously announced.

  • 50. SeattleRobin  |  October 8, 2014 at 9:27 am

    Now that I'm calmed down a little from screaming WTF in my head, my guess is that the issue is the immediate mandate. While it makes perfect sense in light of Denial Monday, the fact is that Idaho still has a right to go through all the procedures allowed them. I may not like it in this instance, but there could certainly be a future case where not being allowed to fight to the last would infuriate me.

    The problem is really that Otter just can't accept that marriage equality is a done deal and refuses to gracefully bow out like other state officials have done. But his obstinacy doesn't mean that the state shouldn't be afforded their due process.

    Having said all that, I hope he gets smacked down! Heh.

  • 51. Fledge01  |  October 8, 2014 at 9:28 am

    I meant the 9th. Thanks

  • 52. sfbob  |  October 8, 2014 at 9:29 am

    Apparently the sticking point is not the inclusion of both cases but the fact instead of waiting the customary 21 days to issue a mandate, the court issued its mandate at the same time as it issued its decision.

  • 53. SeattleRobin  |  October 8, 2014 at 9:31 am

    Intermediate and heightened scrutiny are the same thing aren't they? There are three established levels, and strict scrutiny is the highest.

  • 54. sfbob  |  October 8, 2014 at 9:31 am

    As far as I know he can frame the stay any way he pleases.

  • 55. Fledge01  |  October 8, 2014 at 9:36 am

    Thank you for that clarification. But that raises another question. If SCOTUS gets involved in the scrutiny issue and requires the 9th to take another look at the case without heightened scrutiny, would such a request and its potential judicial reanalysis also have undue SmithKline?

    Lets hope the only issue is that the court wants the attorneys for the same sex couples to respond stay request and let the entire SCOTUS have a say in whether to stay or not. Perhaps its not that Gay equals Stay is still in effect. It could just be that SCOTUS wants to be the one to make the change from Gay equals Stay and not have lower courts presume on their own without asking first. Egos…..

  • 56. guitaristbl  |  October 8, 2014 at 9:37 am

    I am not sure..Why would different words be used to describe the same thing as it happened in yesterday's ruling ?

  • 57. billiebobrob  |  October 8, 2014 at 9:47 am

    Having been legally married in CA in 2008 before Prop 8, and living permanently in Nevada since 2010, my husband and I rejoiced last night when the 9th Circuit issued its mandate, when Governor Sandoval announced full compliance, and when the County Clerk in Clark County (Las Vegas) announced licenses would be issued today as of 2 PM PDT. We felt last night that our legal marriage in CA was finally legally-recognized in NV as of that time. Then, this morning, we find that Anthony Kennedy has issued this "stay"… and now we feel once again like we are on the end of someone's yo-yo string. I truly wonder how Anthony Kennedy would feel if someone dared to tell him that his marriage was legal one day and not legal the next day. How would straight couples react to the news that their marriages were being bounced around like ping pong balls by people 2000 miles away? I doubt that many of them would tolerate the indignity of it for one split second. We, being in a minority, apparently must tolerate it. Shame on all of them.

  • 58. Ragavendran  |  October 8, 2014 at 9:56 am

    The cases were consolidated for purposes of disposition and there was only one combined mandate issued, which was stayed. Unfortunately, this results in Nevada being involved as well, even though it shouldn't.

  • 59. RobW303  |  October 8, 2014 at 9:57 am

    I feared this would happen when the court combined the two cases for ruling. It would have been better (for us) if they had issued the Nevada ruling first, then, for Idaho, issued a later ruling saying "ditto".

  • 60. Ragavendran  |  October 8, 2014 at 9:59 am

    There is an order on PACER that appears before the opinion, saying that the cases were consolidated for disposition. So only one mandate was issued for both cases combined. In staying one, unfortunately the other gets stayed too.

  • 61. Ragavendran  |  October 8, 2014 at 10:01 am

    Perhaps Kennedy is worried the Ninth Circuit abused it's discretion in issuing the mandate so quickly. That was the major point raised by the State here.

  • 62. franklinsewell  |  October 8, 2014 at 10:02 am

    Amen. As a Nevada resident since 2003 who was married legally in 2010 in Idaho, I can only say "hear-hear."

  • 63. MJ4  |  October 8, 2014 at 10:04 am

    Here's what I predict. Kennedy wanted to get rid of heightened scrutiny, but allow same sex marriage. The other conservative judges agreed. They punted on Monday, waiting for the 9th to issue their opinion. This way they can get do both in one ruling. We lose heightened scrutiny, but that was probably going to be done away with anyway.

  • 64. Fledge01  |  October 8, 2014 at 10:10 am

    Fortunately our legal system doesn't always allow judges to take the actions they personally would like to take. Almost every judge I've met sometimes makes a ruling they wish they didn't have to make.

    The more I think about this, the less I think this temporary stay is going to last very long. This is because SCOTUS does not want this case before them because they would have to make a ruling that, in our worst case scenario, says: "we agree with the verdict of the lower court, but for a different reason (ie: different scrutiny). SCOTUS usually doesn't take a case just to change the reasoning. I assume Kennedy could care less about the reasoning for this specific case since it doesn't change the outcome. They can always review the reasoning on some other case where heightened scrutiny is applies where that level of scrutiny could affect the ultimate outcome of the case. We will know what this all means within a week.

  • 65. ragefirewolf  |  October 8, 2014 at 10:10 am

    I too am suffering said syndrome :(

  • 66. Leo  |  October 8, 2014 at 10:12 am

    That sounds like a rather complicated way to do something they could have done very easily in the Windsor decision, if they were so inclined.

  • 67. guitaristbl  |  October 8, 2014 at 10:12 am

    Reading the filings they submitted today both to the 9th and SCOTUS, that was not their major point, their major point was the heightened scrutiny and a) if it applies here and b) if it is valid at all since SmithKline was based on Windsor which did not specify the level of scrutiny used.

    Why Kennedy should be worried about that ? Their actions on Monday basically encouraged the 9th to act in such a way, why stop them now ? Since I can't imagine granting cert to Latta (at least without a contradicting ruling from the 6th), he just wanted to leave them the time to petition for en banc ? That's the only possible scenario I can think right now.

  • 68. Waxr  |  October 8, 2014 at 10:17 am

    If Justice Kennedy takes this to the full Court, and the Court lifts the stay, it would be a reaffirmation of the Court's position, and a message to other states that getting a stay will not be as easy as it was.

    With all the favorable court decisions since Windsor, I have only bothered to read a few of them. However, the praise of Judge Reinhardt's decision was so positive that I spent a large part of this morning reading it, and just discovered that it was stayed. I would hate to see it overturned.

  • 69. MJ4  |  October 8, 2014 at 10:17 am

    Heightened scrutiny wasn't in place at the Ninth Circuit when Windsor was decided.

  • 70. JamesInCA  |  October 8, 2014 at 10:18 am

    I'm guessing that this morning's stay is Kennedy's way of spanking the 9th for issuing the mandate so quickly, rather than allowing the usual process to play out to form.

  • 71. franklinsewell  |  October 8, 2014 at 10:19 am

    More from SCOTUSBlog:

  • 72. billiebobrob  |  October 8, 2014 at 10:20 am

    Nonetheless, I would sincerely like to have lunch with Anthony Kennedy and ask him to his face how he would feel if his marriage had been treated with the same indignity which he afforded ours this morning. I know this is about complex legal maneuvering. At the same time, human beings are being harmed, and our Courts, including Anthony Kennedy, continue to allow that to go on. I know justice prevails in the long term. I think our community has been patient. Yet having our marriage declared valid at 5 PM last night, and declared invalid by Anthony Kennedy some 12 hours later, is an indignity which he has been privileged never to have to suffer. I just often wonder how the people in power would behave if THEIR lives were impacted in the same way their actions impact OURS.

  • 73. guitaristbl  |  October 8, 2014 at 10:23 am

    Yes but it was in place in the 2nd circuit, it was established with Windsor.

  • 74. Ragavendran  |  October 8, 2014 at 10:24 am

    It was definitely one of their major points (there were three). Kennedy could be worried that the Ninth Circuit, in abusing its discretion, is denying the state officials procedural due process, i.e., time to ask for rehearing, petition for stay, etc. Just a thought.

    The Seventh Circuit also ruled heightened scrutiny applies to sexual orientation claims and that has become the law of the land in the Seventh Circuit (though it struck down the bans on rational basis). But before even Posner reached the scrutiny question, he found that the bans discriminate on the basis of sexual orientation. If the pressing question is whether same-sex marriage bans discriminate on the basis of sexual orientation or just biological procreative potential (which is another major point Idaho is raising), one of the Seventh Circuit cases could have been ideal for that, and also ideal to say Posner was wrong in determining heightened scrutiny is the standard for sexual orientation discrimination, while perhaps also agreeing with him that the bans failed rational basis.

    It's also possible there is some internal drama going on behind closed doors on the marriage issue. Kennedy could still be trying to convince three others to grant cert. I've always maintained there was a good chance he wanted to be done with this issue once and for all in 2013. The signs were there. He must think it is an urgent issue that is of national importance requiring resolution by the Supreme Court. If I recall right, he asked about the children of same-sex couples in the Prop 8 oral argument where the plaintiffs were raising children, and not in Windsor (who I don't think has any kids) oral arguments. Yet, his lengthy discussion about the welfare of children of same sex couples (the core of this entire movement) figured in his Windsor opinion. I think that language was what started out as an opinion on the merits of Prop 8, but something changed and he instead added all that to Windsor.

  • 75. Mike_Baltimore  |  October 8, 2014 at 10:29 am

    Although not explicitly stated in the decision, most court observers consider the Windsor ruling by SCOTUS to have been made under Intermediate scrutiny. The 2CA was explicit in it's ruling, stating that the decision was made under Intermediate scrutiny.

    I fully expect Idaho to try to delay as much as possible by first asking for an en banc hearing at the 9CA (it took 4 months for the 9CA to rule en banc on PropH8), then appeal to SCOTUS. They seem to be bigoted enough in Idaho to try to keep their anti-ME laws on the books for as long as possible.

    If Idaho appeals to SCOTUS, the case almost certainly will be heard in the 2015/16 term, thus the bigoted anti-ME laws could potentially be on the Idaho books until as late as the end of June, 2016. It also would mean that the rest of the states and territories in the 9CA would either have to eliminate the bigoted laws themselves, or wait until SCOTUS rules on the Idaho appeal. Most would probably take the easy way out, and just wait.

  • 76. franklinsewell  |  October 8, 2014 at 10:30 am

    Okay, Rav: But staying a mandate thereby continuing the real harms gays and lesbians suffer is NOT the way to do what he wants to do. Instead, what until there's a circuit ruling upholding a ban, grant cert, and move forward on that case.

    If I die today, If Billie Bob Rob dies today, our spouses, to whom we are legally married in other states, would not be able to access any of our Social Security benefits because we live in state in which our marriage is deemed second class.

  • 77. cpnlsn88  |  October 8, 2014 at 10:32 am

    At this point I predict nothing after nearly a year of trying to predict SCOTUS and getting it wrong every time! And being disappointed on quite a few. I am content to wait and see how it plays out.

  • 78. franklinsewell  |  October 8, 2014 at 10:32 am

    I wish I could give 10 or 15 thumbs up, but I could only give one.

  • 79. guitaristbl  |  October 8, 2014 at 10:38 am

    I did raise that point to my initial comment. That the judges in the other 3 circuits that ruled in favour of ME used different legal ways to get through this. I don't know if Posner's 4 step analysis qualified as heightened scrutiny, it was a hugely satisfying but rather ambiguous from a scrutiny aspect ruling, but definately if the court wanted to resolve scrutiny issues the decisions it dismissed on Monday provided fertile ground for that, plus it already knew what kind of scrutiny the 9th applies on sexual orientation.
    Idaho's argument on biological procreative potential does not hold water anyway imo, since the usual arguments about infertile and elderly couples marrying bring it down on a first reading (more valid arguments can be found if you dig deeper).

    "Kennedy could still be trying to convince three others to grant cert."

    I also believe that Kennedy may have voted to grant cert on Monday but as long as he does not make his intentions clear to the 2 groups of 4 that stand on opposite sides of the aisle on the issue, I believe they will be afraid to vote to grant cert.

    I also believe that Kennedy wanted to get to the merits of prop 8 in 2013. I am just not yet totally convinced he would do it to vote in favour of equality. The more days that pass the more I am convinced that Monday's denials are a product of fear rather than principle. Kennedy entered the conference forcefully determined to grant cert and the other 8 got scared, for different reasons each group.

  • 80. franklinsewell  |  October 8, 2014 at 10:43 am

    Mike – Well, just in case, Nevada voters – we hope – will vote to repeal the constitutional amendment in 2017.

  • 81. andrewofca  |  October 8, 2014 at 10:43 am

    This was an open letter to Justice AK a few months before Windsor.

  • 82. Mike_Baltimore  |  October 8, 2014 at 10:47 am

    I think Kennedy felt forced to issue a stay in the Nevada case, since it was in the same mandate as the Idaho case. Was he (in his mind) staying the mandate, or staying the ruling?

    Maybe the 9CA ruling should have been issued as separate rulings for Idaho and Nevada (after all, the Hawai'i case will be ruled on separately, even though it was heard at the same time as the ID and NV cases), and then the 9CA panel should have waited a few days to issue separate mandates for the three cases. It would have been a delay of a few days, but then we now have an even longer delay coming from Idaho, and Nevada is caught up in that delay.

  • 83. Ragavendran  |  October 8, 2014 at 10:51 am

    I know, and I don't mean to undermine to the slightest degree the harms that these bans cause to same-sex couples, but I see the question of "why grant gay stays and continue harm while deciding to take up the case and then deciding it" as a separate question from the decision to take up a case itself. You are right, I don't agree with the gay stay policy either, but that has been the Court's policy since January and they are just going with it.

  • 84. franklinsewell  |  October 8, 2014 at 10:59 am

    In truth, I have never felt that anyone one this blog doesn't recognize the harms, Rag (sorry for the error in your name earlier). Thank you, as always, for your very thoughtful comments on this blog.

  • 85. flyerguy77  |  October 8, 2014 at 11:23 am

    This is my prediction from SCOTUS.. They will left the stay for Nevada today or tomorrow if they don't tell 9th Circuit recall mandate or wait 21 days or tell them issue 2 mandates.. I believe they will grant a stay in Idaho for appeal process AND then smack then down.. that will be a huge hint.. if you want an appeal for other states– okay you will be denied JMO I believe every states have a right to appeal a ruling if they want to…

  • 86. franklinsewell  |  October 8, 2014 at 11:50 am

    Stupid intervenors in Nevada case piled on asking for a stay. File is on Equality Case Files.

  • 87. sfbob  |  October 8, 2014 at 11:55 am

    Heightened scrutiny includes both strict scrutiny (applies to religion and race, usually national origin) and intermediate scrutiny (applies to gender, illegitimacy and, in some jurisdictions, to sexual orientation).

  • 88. SethInMaryland  |  October 8, 2014 at 11:55 am

    those idiots won't have standing though to appeal or even ask for a stay , the gov and att gen legal defendents are the legal in nev and have decided they no longer want to continue , maybie this could mess up idaho's attempt at a stay

  • 89. jdw_karasu  |  October 8, 2014 at 12:15 pm

    This is the timeline you're talking about in Prop 8:

    02/21/2012 Petition for Rehearing En Banc
    03/09/2012 Last brief filed
    06/05/2012 Denial of Petition For Rehearing En Banc

    Briefing was fast. The 9th spun its wheel for a while after that, though there was an insane dissent by O'Scannlain, Bybee and Bea which forced Reinhardt and Hawkins to respond. My guess is that if they request an en banc, which they know they will lose, that the briefing will be similarly fast and that this time around it will be quicker to round up a majority of votes to give it the thumbs down.

    Prop 8 had some tricky technical issues to deal with at that level, as we saw when it got to SCOTUS. This one doesn't.

  • 90. ragefirewolf  |  October 8, 2014 at 12:17 pm

    I don't think doing away with heightened scrutiny is a good thing at all…

  • 91. SeattleRobin  |  October 8, 2014 at 12:41 pm

    Ah, thanks for the clarification. I've been using the wrong word all along!

  • 92. jdw_karasu  |  October 8, 2014 at 12:42 pm

    It's hard to read the nine in total.

    One gets the sense that the Anti-ME 4 know that the bans are dead if a case gets taken up. They have no reason to vote for cert unless it's to spite Kennedy into writing an opinion. Since they like his vote on pretty much every other case, there's no point in that.

    As far as Our 4…

    RBG, for what ever reasons, doesn't seem to want to take it up right know. It's hard to understand why, but she's been pretty consistent on slow walking this.

    As far as the other three… we know how they'll vote, but at least a few seem to be either taking their lead from RBG, or they don't have a good enough working relationship with Kennedy to scope him out on the issue.

    It's all very strange.

  • 93. brandall  |  October 8, 2014 at 12:43 pm

    @ChrisJohnson tweeting Kennedy has just updated his order. Nevada is NOT part of the stay! That makes a lot more sense (is there is such a thing today), but I'm surprised this even happened.

  • 94. DACiowan  |  October 8, 2014 at 12:44 pm

    WE HAVE NEVADA!!!!!!

  • 95. Corey_from_MD  |  October 8, 2014 at 12:45 pm

    See update to this post above or from the AP…

    NEVADA has the GREEN LIGHT! Zoom, zoom…

  • 96. SethInMaryland  |  October 8, 2014 at 12:45 pm


  • 97. Charlie Galvin  |  October 8, 2014 at 12:47 pm

    For those who have trouble following the Idaho legal jargon, here's a translation: No, no, NO! We can't, we WON'T let the icky gays marry no matter WHAT you tell us. You didn't say "Simon says"! You didn't say "Mother, may I?" You didn't say "pretty please with a cherry on top." It's not FAIR! We've always been mean to them anyhow and you never said we couldn't BEFORE! We don't wanna and we ain't gonna, so THERE!

  • 98. franklinsewell  |  October 8, 2014 at 12:49 pm

    Here's the order from Lambda Legal's page:

  • 99. SethInMaryland  |  October 8, 2014 at 12:49 pm

    this makes me feel more postive, i'm thinking kennedy is just giving Idaho a little bit of time to attempt to appeal

  • 100. SethInMaryland  |  October 8, 2014 at 12:55 pm

    this 'coalition' has no standing to appeal , therefore it's over for them, maybie that's why at first kennedy issued a stay in nevada then relized it was the coalition and he relized they wouldn't have no standing

  • 101. SeattleRobin  |  October 8, 2014 at 12:55 pm

    A new small wrinkle. Judge Jones has recused himself. He's the Nevada judge who upheld the state ban. It's shameful IMO to not do his job and sign the order. Especially in light of the fact that he's standing in a distant field with only Feldman for company, in terms of his legal opinion related to dozens of other judges.

    So now there's a small delay until another judge is assigned to finish the paperwork. Jones might as well have "I can't carry out my duties because I am a bigot" tattooed on his forehead.

  • 102. flyerguy77  |  October 8, 2014 at 12:56 pm

    i was right about Nevada..

  • 103. wkrick  |  October 8, 2014 at 12:58 pm

    Someone needs to do a Venn diagram of scrutiny levels.

  • 104. wes228  |  October 8, 2014 at 1:01 pm

    And with Nevada comes an end to all "separate-but-equal" domestic partnerships/civil unions.

  • 105. franklinsewell  |  October 8, 2014 at 1:04 pm

    No, the Coalition didn't submit their request to Justice Kennedy, only to the 9th Circuit.

  • 106. sfbob  |  October 8, 2014 at 1:07 pm

    Conducted by gay Elvis impersonators.

  • 107. sfbob  |  October 8, 2014 at 1:09 pm

    It's pretty simple. Two kinds of heightened scrutiny: strict and intermediate.

    If you want a cheat-sheet, go here:

  • 108. marvelmvs  |  October 8, 2014 at 1:15 pm

    I don't think SmithKline is binding on the 9th Circuit when they go en banc. After all, it was denied en banc review and thus an en banc panel can certainly overturn it if they wish. Considering many judges on the 9th Circuit seem to have suggested they would overturn SmithKline I can see why the US Supreme Court would want them to try an En Banc review.

  • 109. davepCA  |  October 8, 2014 at 1:16 pm

    Wow. Did he offer any rationale for recusing himself?

  • 110. davepCA  |  October 8, 2014 at 1:17 pm

    That is very significant! Quite a legal milestone in itself.

  • 111. davepCA  |  October 8, 2014 at 1:18 pm

    ding ding ding! We have a winner! : )

  • 112. SeattleRobin  |  October 8, 2014 at 1:22 pm

    Here's a new technical question. I just read the Nevada Coalition's request to recall the mandate and issue a stay, so that they have time to file a request with the 9th for an en banc hearing.

    It was clear the had standing to defend the case at the 9th because they were already a party with established status. But with the state not defending and moving forward with plans to abide by the decision, does the Coalition have standing on its own to request an en banc hearing?

    They had standing to defend, they don't have standing to appeal. Which applies to an en banc request?

  • 113. SeattleRobin  |  October 8, 2014 at 1:25 pm

    No, it was a terse, I recuse myself and am sending this to the chief judge person to reassign the case. Since he didn't recuse himself from hearing the case there's only one conclusion to draw.

  • 114. SeattleRobin  |  October 8, 2014 at 1:28 pm

    Let's see if this link works. (I use an app on my tablet normally, so it's hard to get direct links.)

  • 115. davepCA  |  October 8, 2014 at 1:29 pm

    That's hilarious! How incredibly petty of him. I bet he crossed his arms and said "Hmpff!" and stamped his feet on the way out of the room.

  • 116. franklinsewell  |  October 8, 2014 at 1:36 pm

    MORE NEWS: Coalition to Protect Marriage has filed an application for a stay in the Nevada case with Justice Kennedy.

    In it, they boldly claim that there are no Article III justiciability issues.

  • 117. JamesInCA  |  October 8, 2014 at 1:56 pm

    I think Roberts is one whose vote is also not necessarily in the tank for either side. I'm guessing he'd like the issue to go away without a SCOTUS ruling, so he may be with Ginsburg in the "slow-walk caucus." And while I don't think he'd be the fifth vote for us, I do think if he saw five, he might join to make six if it would help get the opinion as narrow as possible.

  • 118. Eric  |  October 8, 2014 at 2:04 pm

    So much for the Mormon call for dignity and compassion towards their adversaries.

  • 119. DEV_ally  |  October 8, 2014 at 2:55 pm

    I don't believe you are correct. The fact that an en banc review was requested and subsequently denied basically means that the majority of Judges on the 9th felt that Smith-Kline was decided correctly and further review was unnecessary, which means that the Smith-Kline judgement in regards to scrutiny stands as binding precedent on the entire 9th.

  • 120. Waxr  |  October 8, 2014 at 3:05 pm

    I like the line:
    " Justice Kennedy, with the right decision, could eclipse the likes of Barbra Streisand, Madonna and Lady Gaga as the greatest gilded eagle for gay equality ever known."

    However, why wasn't Elizabeth Taylor's name mentioned?

    Taylor had long friendship with actors Roddy McDowell and Montgomery Cliff, and supported them when they came out. Taylor was among the first celebrities to stir up interest in fighting AIDS/HIV. She was an early champion of the cause.

  • 121. jdw_karasu  |  October 8, 2014 at 3:22 pm

    Agreed. The denial of en banc is a clear sign that the majority of the 9th is down with SmithKline

  • 122. Zack12  |  October 8, 2014 at 3:45 pm

    What a patheic bigot he is.

  • 123. Zack12  |  October 8, 2014 at 3:45 pm

    Good luck with that, they have no chance.

  • 124. jdw_karasu  |  October 8, 2014 at 3:46 pm

    What would one expect from Judge Jones of the District of Latter-day Saints. :/

  • 125. DrPatrick1  |  October 8, 2014 at 4:50 pm

    As I understand it, the 9th found a 14th amendment equal protection argument based on the heightened scrutiny demanded by SmithKline. This was a unanimous opinion. Then one judge found additional constitutional concern based on due process. Equal protection means the parties are similarly situated except for an unimportant reason that has no place in the law. Meaning, the discrimination is unnecessary for the law's function, so it is unnecessarily harmful to the group and therefore unconstitutional. Unconstitutional because of the groups characteristics. Due process means the law itself protects the citizens, so they should be protected. I mean, the law here is marriage, and marriage is a fundamental right guaranteed to everyone. Unconstitutional because the law protects an important right, regardless of the individuals being impacted.

    A second judge concurred adding a second protection under equal protection based on sex discrimination.

    The concurring opinions do not set precedent. Thus, as I understand it, they are reviewing the EP heightened scrutiny issue.

  • 126. billiebobrob  |  October 8, 2014 at 4:56 pm

    So here we are in Clark County, NV, once again… our CA marriage was legally recognized in NV yesterday late afternoon… then "annulled" by Justice Kennedy's stay early this morning… then legally-recognized again today when Kennedy lifted his stay for NV… then once again "annulled" when the 9th Circuit instituted yet ANOTHER stay on its order. So in the space of less than 24 hours, my husband and I have been married, annulled, married, and annulled… all by the actions of federal judges. I truly begin to think that we live in a banana republic, NOT the so-called "greatest democracy on the planet". When human lives are jerked around like his by federal judges, there is something truly WRONG about our system of governance. We all know there are hateful, hurtful people in the country. What we don't expect is that our federal judiciary will give these hateful people power to harm others. Today, the Supreme Court in the face of Anthony Kennedy, and the 9th Circuit, have done just that.

  • 127. DrBriCA  |  October 8, 2014 at 4:56 pm

    Well, at least that's better than him sitting on the decision for as long as he can pretend to ignore the 9th CA mandate (as some on here were fearing he might)!

  • 128. RnL2008  |  October 8, 2014 at 5:00 pm

    How is that? In order to have article 3 standing they have to show SOMETHING to the Justices and they have no more right to stand in as did regarding Prop 8!!!

  • 129. ragefirewolf  |  October 8, 2014 at 5:09 pm

    It is probably nothing more than cold comfort from a stranger, but I know in my heart that this nonsense is temporary. I hope you can hold onto that. In all honesty, I wouldn't be able to in your shoes…it's difficult enough for me.

    I haven't married my fiance yet even though it's been legal in NY since 2011 and federally legal since 2013, but we want to. I don't know…I guess I keep hoping this all is resolved by the time we want to get married. I don't want to be travelling between states and suddenly have our marriage become non-existent either. :(

  • 130. RnL2008  |  October 8, 2014 at 5:09 pm

    OMG that was funny….but probably not far from the truth….lol!!!

  • 131. RnL2008  |  October 8, 2014 at 5:13 pm

    Yes, and Charlie posted it… it is again:
    For those who have trouble following the Nevada legal jargon, here's a translation: No, no, NO! We can't, we WON'T let the icky gays marry no matter WHAT you tell us. You didn't say "Simon says"! You didn't say "Mother, may I?" You didn't say "pretty please with a cherry on top." It's not FAIR! We've always been mean to them anyhow and you never said we couldn't BEFORE! We don't wanna and we ain't gonna, so THERE!

    Thank you Charlie for posting this……thought it fit the Judge's reason for recusing himself!!!

  • 132. wes228  |  October 8, 2014 at 5:27 pm

    The 9th Circuit hasn't issued a stay of its order. They just want briefs on whether or not the mandate for Nevada should be rescinded.

    Really, your marriage has never been recognized in Nevada because an injunction hasn't issued yet from the District Court.

  • 133. ragefirewolf  |  October 8, 2014 at 5:29 pm

    Hehehe. Pretty much.

  • 134. ragefirewolf  |  October 8, 2014 at 5:32 pm

    Now that's cold comfort if I ever heard it…

  • 135. billiebobrob  |  October 8, 2014 at 5:57 pm

    Yes, sure is "cold comfort". The news coverage locally in Las Vegas is getting the point… hundreds of people ready to apply for marriage licenses, the County Clerk ready to supply them, and this yo-yo judiciary saying "yes" then "no" then "yes" then "no"… and no one knows what to do. This is absolutely chaotic, and I repeat, this is like living in a banana republic, NOT a sophisticated democracy. We'd expect this from a puppet dictatorship, NOT from the United States of America. Sure, sure, sure, this will all be resolved in time. But it's a messy, disgusting process that allows the most hateful and bigoted among us to do damage to decent, loving people, and I'm NOT proud to be an American today. In the end, we all know how this will turn out. It's just that the hate-mongers will drag the rest of us through the filth of their own hatred for every last second they can manage to do it. And the Courts, in my humble opinion, are letting them get away with it.

  • 136. Zack12  |  October 8, 2014 at 6:33 pm

    Much of that scord should be directed at Judge Jones of the District Court of NV who was perfectly okay with issuing a ruling that said the NV marriage ban was legal but recused himself in order to avoid having having to issue the mandate from the 9th that says otherwise.

  • 137. Brad_1  |  October 8, 2014 at 7:28 pm

    For what it's worth, there's reason to believe Judge Jones' wife, Michele, donated money to California's Yes on 8 campaign in 2008:

    1) "Michele Jones" from Las Vegas donated to Yes on 8.

    2) Judge Jones is married to Michele Jones.

    3) Judge Jones was based in Las Vegas in 2008 (though the judge is today based in Reno).

    If his wife gave money to Yes on 8, that does not imply Judge Jones supported or opposed Prop 8. But it is interesting to see.

    Here's the Mormon Church's official story about Judge Jones' appointment to the bench by President George W. Bush:

  • 138. Rick55845  |  October 8, 2014 at 7:49 pm

    I apologize for possibly seeming pedantic, franklinsewell, but it is "wont to do", not "want to do".

    "Want" implies a desire, at least in this context, whereas "wont" suggests a proclivity, likelihood, or tendency. I'm sure it is the latter you intended.

    Since the point of your post was to point out a spelling error in someone else's post, I thought you might not mind if I returned the favor. I hope I am right about that. I mean no offense.

  • 139. brandall  |  October 8, 2014 at 8:04 pm

    I honestly don't know how I would react if I were in your shoes. You have every reason to be frustrated, disappointed in the system and wary of what is next. I've followed every case, every day for 10 months now. I thought I had seen everything in terms of crazy gyrations, surprises and one-offs. The last 24 hours should be a major embarrassment to the courts and their pay should be docked for poor performance. I am very sorry you are caught up in this.

  • 140. brandall  |  October 8, 2014 at 8:07 pm

    And at 6:59 am PDT this morning I would have agreed 100% with you. Then Kennedy acted. All bets are off. I know that sounds incredibly dumb considering my acquired knowledge on all of these cases. We are in new turf.

  • 141. Rick55845  |  October 8, 2014 at 8:09 pm

    The US is not now, and never has been, a democracy. It is a republic, and you should be glad of that. Were it a democracy, you and I and our spouses would never have had any hope of justice.

  • 142. sfbob  |  October 8, 2014 at 8:27 pm

    In other words…he should have recused himself in the first place, NOT after having issued a completely insupportable ruling.

  • 143. jjcpelayojr  |  October 8, 2014 at 10:34 pm

    Do we really think Kennedy would be able to convince 3 more judges to grant cert to discuss whether sexual orientation warrants heightened scrutiny? It seems like entertaining that idea would have just as much repercussion as the judges deciding on marriage equality on a national level

  • 144. ragefirewolf  |  October 9, 2014 at 6:05 am

    The United States is a democratic republic – a fusion of both the Roman and Greek models of government, not one or the other.

  • 145. amraiguil  |  October 9, 2014 at 6:31 am

    tnx For sHaring .
    العاب ماريو

  • 146. wes228  |  October 9, 2014 at 6:38 am

    Really, I blame the 9th Circuit who should have waited the normal 21 days before issuing their mandate.

  • 147. Zack12  |  October 9, 2014 at 6:52 am

    Indeed, a clear conflict of interest but we know nothing will happen here.

  • 148. brandall  |  October 9, 2014 at 7:07 am

    Factually, you are absolutely correct.

    Historically, the 9th did the same thing when Prop 8 was struck down. If I remember correctly, CA marriages started within hours of the SCOTUS decision.

    Procedurally, a finding of a constitutional violation should never have been stayed to begin with since the "likelihood on the success of the merits" was zero.

  • 149. wes228  |  October 9, 2014 at 7:13 am

    When the SCOTUS issued their ruling, it did not require the 9th to issue a mandate. The 9th only had to issue an order vacating their ruling, leaving the injunction from the District Court intact and in force.

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