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Ninth Circuit expedites Idaho same-sex marriage case

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The Ninth Circuit Court of Appeals has issued an order in Latta v. Otter, the challenge to Idaho’s same-sex marriage ban, fast-tracking the state’s appeal and issuing a stay of the federal magistrate judge’s decision.

The judge ruled that the ban is unconstitutional last week, and when the decision wasn’t stayed, the state asked the Ninth Circuit to halt implementation of the decision. Since it was set to go into effect at the end of last week, the Ninth Circuit issued a temporary stay while it considered the request for a stay pending the entirety of the appeals process.

Today’s order grants that stay, relying on the Supreme Court’s decision to stay the decision in the Utah same-sex marriage case.

Judges Edward Leavy, Consuelo Callahan, and Andrew Hurwitz also decided, on their own, to fast-track the appeal, with the briefing completed by late July: “The opening brief(s) are due June 19, 2014; the answering brief(s) are due July 18, 2014; and the optional reply brief(s) are due within 14 days after service of the answering brief(s).”

The order also sets oral arguments for the week of September 8.

The National Center for Lesbian Rights (NCLR), who filed the case, has issued a press release on today’s order.

A similar appeal in a challenge to Nevada’s same-sex marriage ban, Sevcik v. Sandoval, is still awaiting action in 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.


  • 1. nightshayde  |  May 20, 2014 at 5:10 pm

    I know that courts tend to move at a glacial pace & that that really IS an expedited schedule — but it still seems odd to me that setting up oral arguments for SEPTEMBER is considered "fast."

  • 2. Scottie Thomaston  |  May 20, 2014 at 5:13 pm

    Lambda Legal appealed Sevcik in December 2012 and it's still waiting on argument.

  • 3. jpmassar  |  May 20, 2014 at 5:16 pm

    Why wouldn't they consolidate the two cases at this point?

  • 4. Scottie Thomaston  |  May 20, 2014 at 5:16 pm

    I really don't know.

  • 5. Guest  |  May 20, 2014 at 5:32 pm

    Full briefing has already occurred in Sevcik, right? Just waiting to schedule oral argument? Assuming so, consolidation would presumably delay it even further.

  • 6. Ragavendran  |  May 20, 2014 at 5:35 pm

    Yes, but that doesn't stop them. For example, the Sixth Circuit today sua sponte consolidated Obergefell and Henry even though briefing on the former has been completed, and the latter is practically a brand new appeal. It delayed the former but expedited the latter with a swift briefing schedule in time for it to possibly be heard in late July or early August along with the other three states' appeals.

  • 7. Ragavendran  |  May 20, 2014 at 5:36 pm

    Oops – the reply was meant to be to Guest's comment above.

  • 8. Guest  |  May 20, 2014 at 5:45 pm

    True, but once SmithKline is (hopefully) settled this week, couldn't they schedule the oral argument as early as June or July?

  • 9. Ragavendran  |  May 20, 2014 at 5:51 pm

    Sure, they could. It depends on the judges in the mystery Sevcik merits panel. If they managed to delay it this long (by striking down, behind the scenes, an April oral argument schedule that a poor clerk entered truly believing that the appeal was on an expedited schedule), they might accept another excuse to delay it even further. But I agree that it makes makes no sense to consolidate these cases. They target laws of different states, have entirely different histories, unlike the two Ohio appeals that the Sixth consolidated.

  • 10. TimATL  |  May 20, 2014 at 6:21 pm

    Didn't the 9th consolidate the Hawaii and Nevada cases though?

  • 11. Ragavendran  |  May 20, 2014 at 6:25 pm

    For different reasons. They were both filed at nearly the same time and raised substantially similar questions. And they de-consolidated the cases once HI repealed its ban. Here, the timing issue alone (briefing in one is complete and the other hasn't started) should outweigh the similarity in the questions raised. (Disclaimer: all of this is speculation, but I believe that the general discussion on the EoT comments during those times favor this guess.)

  • 12. JayJonson  |  May 21, 2014 at 6:14 am

    May I say once again how valuable Ragavendran's contributions to this site are. Even his speculations are carefully considered.

  • 13. RobW303  |  May 21, 2014 at 7:22 am

    As I understood it, the cases were never consolidated, just put on a similar schedule, for the reason Ragavendran gave.

  • 14. Ragavendran  |  May 21, 2014 at 7:35 am

    Yeah, you're right! There's a difference.

  • 15. Wilbur  |  May 20, 2014 at 5:14 pm

    the parties still have to write and submit a round of legal briefs for the judges and their clerks to study and consider before oral argument. it's not like Fox News where everybody just shows up and just yells slogans 🙂

  • 16. ragefirewolf  |  May 21, 2014 at 5:47 am

    Glacial is an understatement. I don't understand why the Ninth Circuit is sooooooo slow.

  • 17. Margo Schulter  |  May 20, 2014 at 5:10 pm

    Interesting concurrence by Judge Hurwitz, saying basically that Herbert v. Kitchen resulted in a SCOTUS stay that “has virtually instructed courts of appeals to grant stays in the circumstances before us today” (p. 2 of order on Ninth Circuit site). However, Judge Hurwitz also considers the traditional four-factor test and remarks, “I do not think the Idaho appellants have made a strong case on any of these grounds.”

    The concurrence is an interesting change of pace from often opaque or near-opaque stay orders from the circuits — or at least a clue as to one judge’s perspective.

  • 18. Ragavendran  |  May 20, 2014 at 5:13 pm

    Coming from a court of law, all I can say is that this is so unfair to Sevcik, which has been in the Ninth Circuit since December 2012. The saving grace of this stay order is that Judge Hurwitz, admits that the four-factor test clearly disfavors a stay, and the ONLY reason he concurs is due to SCOTUS's "message."

    From the opinion: "If we were writing on a cleaner state [sic], I would conclude that application of the familiar factors in Nken v. Holder counsels against the stay requested by the Idaho appellants."

  • 19. Kyle  |  May 20, 2014 at 5:22 pm

    I suspect that since the 9th circuit has the reputation of leading far to the left, they didn't want to to be the first appeals court with a post-Windsor marriage equality case.

  • 20. Ragavendran  |  May 21, 2014 at 6:06 am

    Awww… I appreciate "your" concern. While "you're" at it, send me a box too. I'm running low and feeling too lazy to go to Target any time soon.

  • 21. RobW303  |  May 21, 2014 at 7:31 am

    Rather than blindly following a questionable "message" sent by SCOTUS when the likelihood of a successful appeal was much more in the air, why don't they toss this ball to SCOTUS and let them determine if the four-factor test can still be met?? Shouldn't each case be handled according to its own merits? Isn't there some means by which a granted but shoddily justified stay can be appealed?

  • 22. Grrr  |  May 21, 2014 at 11:48 am

    Clearly "the gay" has become the unwritten (and decisive!) 5th factor in stay consideration, trumping Nyen. I wish the Supremes just released an order making it explicit so everybody could see their prejudice.

  • 23. Margo Schulter  |  May 20, 2014 at 5:14 pm

    Scottie, in warmly thanking you for your many contributions to this site, I should quickly ask if you or others can see my comments, because I was unable to do so when viewing the site from a graphical browser. I’m considering an e-mail to check about any possible browser-related issue in making my comments, which do show up fine on my text-based browser, but not when I visit the site with Internet Explorer from a local university terminal.

  • 24. Margo Schulter  |  May 20, 2014 at 5:16 pm

    Is it right that the en banc call in SmithKline should be resolved by the end of this week or so, maybe setting the stage for a consideration of <emSevcik?

  • 25. Margo Schulter  |  May 20, 2014 at 5:23 pm

    Here’s a URL to the Ninth Circuit site for the stay order Idaho Stay Order .

  • 26. Dann  |  May 20, 2014 at 5:31 pm

    Slower than molasses in January!

  • 27. Dr. Z  |  May 20, 2014 at 7:18 pm


  • 28. TimATL  |  May 20, 2014 at 5:33 pm

    How can they set the oral arguments for this when we're still waiting for them to set the oral arguments for Sevcik? That seems very strange to me.

  • 29. Ragavendran  |  May 20, 2014 at 5:38 pm

    It's likely a different panel of judges making these decisions. This is a motions panel, whereas the cause of delay in Sevcik is likely due to a rogue merits panel.

  • 30. TimATL  |  May 20, 2014 at 5:42 pm

    So what reason would there be for this merits panel to delay the establishment of an oral arguments date?

  • 31. Ragavendran  |  May 20, 2014 at 5:57 pm

    Recall that an unsuspecting clerk initially scheduled Sevcik for an April oral argument, way back in March. This was swiftly, behind the scenes, struck down, likely by the merits panel assigned to Sevcik. The most likely reason for this that I can come up with is that one or more judges on this panel also raised sua sponte the question of whether SmithKline should be reheard. So they purposefully delayed calendaring of Sevcik until the fate of SmithKline was decided, which should be this week.

  • 32. TimATL  |  May 20, 2014 at 6:33 pm

    Sorry for all of the questions. What's supposed to happen with SmithKline this week? Are they considering en banc?

  • 33. Ragavendran  |  May 20, 2014 at 6:34 pm

    They have until the end of this week to vote on whether they want to rehear the case en banc or not. So we should know the outcome of the vote late this week or early next – some judges (wink, wink) might want to record lengthy dissents.

  • 34. Guest  |  May 20, 2014 at 6:59 pm

    I'm a little confused. How do you know the voting period ends this week?

  • 35. Guest  |  May 20, 2014 at 7:14 pm

    He knows that because it was posted on the Courts site.

  • 36. Guest  |  May 20, 2014 at 7:23 pm


  • 37. Ragavendran  |  May 20, 2014 at 7:31 pm

    FRAP and Ninth Circuit rules are clear on the subject. Once simultaneous briefs are filed, the active judges on the Court have 21 days to make up their mind and then another 14 days to vote.

  • 38. Guest  |  May 20, 2014 at 7:36 pm

    I don't see that under Rule 35.

  • 39. Ragavendran  |  May 20, 2014 at 7:40 pm


    Of course, I'm assuming that no judge has asked for an extension. In that case, there would be further delays.

  • 40. Guest  |  May 20, 2014 at 7:54 pm

    My reading of General Order 5.4b2 is that the panel has ninety days to respond to an off-panel judges en banc call. Then the clock starts ticking.

  • 41. Ragavendran  |  May 20, 2014 at 7:58 pm

    You are reading the wrong rule. The rule you are referring to refers to "petition for rehearing en banc" which doesn't exist here, since there was no such petition. In this case, there was a sua sponte en banc call made, absent any petition from the losing party. So you should look at 5.4c3 and 5.5.

  • 42. Eric  |  May 20, 2014 at 8:15 pm

    5.4b applies to petitions for rehearing. Neither party filed a petition for rehearing.

    You want section 5.4c on sua sponte.

  • 43. Guest  |  May 20, 2014 at 7:36 pm

    Says 21 days to submit supplemental briefing.

  • 44. Stefan  |  May 20, 2014 at 8:36 pm

    I believe the deadline is this Thursday, May 22nd.

  • 45. JayJonson  |  May 21, 2014 at 6:19 am

    That's Harvey Milk's birthday, which is a state holiday in California. Maybe that's a promising omen.

  • 46. Kevin  |  May 20, 2014 at 5:57 pm

    Parties will not know what law needs to be briefed if they do not know the standard of review. And we will not know the standard of review until we know that SmithKline is good law.

  • 47. TimATL  |  May 20, 2014 at 6:23 pm

    Are you saying they'll need to re-submit briefs in Sevick after SmithKline is decided?

  • 48. Ragavendran  |  May 20, 2014 at 6:27 pm

    Not if there are not enough votes to rehear SmithKline, which is the likely scenario here.

  • 49. Kevin  |  May 20, 2014 at 6:30 pm

    Not if there is no en banc proceeding. As far as I can tell from the Appellants' briefs, they address the heightened scrutiny requirement of SmithKline as it was decided. If the Ninth does sit en banc though, then yes, new briefing will be required because the prior panel's holding and opinion will be vacated.

  • 50. TimATL  |  May 20, 2014 at 7:03 pm

    If there is no en banc for SmithKline, then they might not even get to the oral arguments for this Idaho case. If heightened scrutiny is applied, then there should be a swift end to Sevick; which would render the Idaho case moot, correct?

  • 51. DrPatrick1  |  May 20, 2014 at 5:43 pm

    I agree with the general consensus on this site (perhaps the consensus of the US public more generally) that the pace of our appeals courts is ridiculously slow. The NV example seems to be such an extreme example, and one where the state does not even contest the appeal! I understand they want a clean case, one well represented on both sides, upon which to establish precedent. However, this gives the impression of a miscarriage of justice.

    It reminds me of the Prop 8 case, that was, what, almost 5 years from passage until final SCOTUS non ruling. We withstood Strauss, district, 9th and SCOTUS, and didn't end up with a final answer. Looking back on it, it did allow the country to move further on this issue, but I can't help but think of the hundreds of couples for whom this slow justice will come too slowly for them. I am fortunate to have already married, but for those waiting, my heart goes out to you. It is true, justice delayed is justice denied!

  • 52. Bruno71  |  May 20, 2014 at 6:02 pm

    You hit the nail on the head with "it did allow the country to move further on this issue." Now, whether or not it's principled to sacrifice the well-being of couples in non-equality jurisdictions is another story. But there can be no doubt that SCOTUS and probably the 9th and other courts are delaying these matters for that very reason, under the auspices of Justice Ginsburg's opinions on the matter.

  • 53. DrPatrick1  |  May 20, 2014 at 7:31 pm

    I wonder if we are over analyzing her comments re abortion. Her hindsight was clear, she felt that the abortion debate was, in her estimation, quickly achieving a national consensus in favor of choice, and that the Roe decision curtailed that successful campaign, resulting in a backlash. Whether acknowledged or not, this was the creation of a right, using Brand new legal analysis. Marriage and marriage equality are using sound legal analysis that is legally far less controversial. She never said it was ok to deny a sought after right simply to appease the public.

    I do not read anything in her opinions to suggest that she has ever done anything but answer the legal question before her. I think this latest round of cases will present a "clean" case that is well defended and offer a clear, unambiguous opinion declaring marriage equality necessary by our constitution. I do not think there has been an opportunity yet where such a ruling would have been reasonable.

  • 54. Guest  |  May 20, 2014 at 8:19 pm

    I've never understood the comparison between heterosexuals killing their unborn children and gays seeking equality.

  • 55. Zack  |  May 21, 2014 at 1:18 am

    Abortion is a really different issue from marriage equality. Most people would say killing a newborn baby is wrong; if it is wrong to kill it outside the womb, surely it is equally wrong the day before when it was still in the womb, but almost equal in development? On the other hand, it doesn't seem wrong (to many people) to kill a small ball of cells. It seems, to many of us, that abortion isn't wrong at the beginning, is wrong at the very end, and somewhere it changes in between, but who knows the right place to draw the line. The question of marriage, by contrast, doesn't involve any continuums or grey areas – either you permit same gender couples to marry, or you don't – and it has nothing remotely to do with killing either. That's why I think, even decades on from Roe v. Wade, the abortion issue is nowhere near settled in mainstream public debate; I don't expect a SCOTUS judgement in favor of marriage equality to follow the same historical trajectory.

  • 56. Steve  |  May 21, 2014 at 5:14 am

    The Prop 8 trial took a ridiculous detour when the Court of Appeals asked the CA Supreme Court for guidance. That alone took almost a year.

  • 57. Weaverbear  |  May 21, 2014 at 7:21 am

    My personal opinion is that little detour is the major reason SCOTUS actually took the Prop 8 case. I think the majority actually wanted to rule on the issue of standing

  • 58. DrPatrick1  |  May 21, 2014 at 11:40 am

    Whether they wanted to or not, the standing issue raised by the Prop 8 case was always suspect, and the court needed to address the issue. Having it come up again in the 9th circuit, and after dealing with it the way the 9th did, it was begging the Supreme Court to rule on the standing issue specifically. If ever there was a case where an intervener could have standing, it was the prop 8 case. There, the CA Supreme Court declared that the proponents of prop 8 could defend the states interest in lieu of the government officials when those government officials refused to defend the proposition. They did not decide whether the proponents themselves has article III standing, as that is the federal law and should be rightly decided by the federal courts.

    I think where the proponents went wrong was in trying to assert their own rights to have standing to appeal (which was clearly legally dubious, and in my opinion cost them the case) rather than attempting only to intervene on behalf of the state. No one could argue that the state of CA had article III standing to appeal. What the CA Supreme Court clarified was that under CA law, proponents can stand in for the sate. Thus, had they more clearly tried to intervene on just the state's behalf, they may have been successful. If they had been successful, then SCOTUS would have been forced to answer the fundamental equality question. Kennedy was in favor of granting standing. This is my best evidence that Kennedy is ready to write the marriage equality decision and is not trying to delay any longer.

    So yes, we agree, almost certainly they granted cert in Brown v Perry so they could decide standing.

  • 59. Warren  |  May 21, 2014 at 9:09 pm

    That is what I recall so waiting 3 months doesn't seem that long.

  • 60. BillinNO  |  May 20, 2014 at 7:31 pm

    Ninth Circuit…expedite??? Can they really say that with a straight face?

  • 61. Dr. Z  |  May 20, 2014 at 9:25 pm

    Fetch me the "pursuit of fugitives" form.


    Lunch break! I think I'll have soup today.

  • 62. DrPatrick1  |  May 20, 2014 at 7:37 pm

    Exactly. When everyone talks about an unappealed favorable circuit court opinion clearing the whole circuit, what is meant is that a court case would still be necessary to bring marriage equality to those nonequality states that were not party to the case. Each should only require summary judgements by a district judge, but that step would still be necessary. Once such a precedent is set, however, appeals will be less common, and stays will no longer occur. The dominoes will start falling much faster.

  • 63. TimATL  |  May 20, 2014 at 8:17 pm

    I can see the Idaho brief now. "See your own decision in Sevick. The end."

  • 64. DrPatrick1  |  May 21, 2014 at 11:42 am

    There would be an immediate motion to end the stay, and it would be granted within days.

  • 65. Richard L  |  May 20, 2014 at 10:23 pm

    When a case is expedited it is somehow pushed forward ahead of others, no matter how glacial that may be, right? How many cases get expedited? It is common or rare? By expediting a case is there any discerning of why? These cases moving through the system get huge amounts of attention.

  • 66. jdw  |  May 20, 2014 at 11:43 pm

    What were the odds of drawing a 2-1 GOP panel on this?

  • 67. Big Rick  |  May 20, 2014 at 11:50 pm

    Do you think it really matters? I'm not sure it does. A number of GOP appointed judges have ruled in our favor.

  • 68. jdw  |  May 21, 2014 at 10:52 am

    I've been following the GOP rulings in Michigan, Kentucky and PA. Read every word of them and enjoyed the heck out of them. Well aware that we're drawing blood on that side.

    The question was exactly what was stated:

    What were the odds of drawing a 2-1 GOP panel out of the 9th that's 20-9 Dem in Judges and 9-7 Dem in the Sr Judge pool (where Leavy was drawn from… though lord knows how active some of the older Sr Judges are).

    Not high.

  • 69. jpmassar  |  May 21, 2014 at 11:00 am

    Well, to be almost exact, "the odds of drawing a 2-1 GOP panel out of the 9th that's 20-9 Dem", expressed as a probability, are 0.197, or 19.7%

  • 70. jdw  |  May 21, 2014 at 12:57 pm

    Leavy is a Sr Judge, so they were drawing out of that group as well:

    20-9 Active Judges
    9-7 Sr Judges
    29-16 Total

    There are limits in the 9th that Sr Judges can set on how much they want to work, and whether they want to work away from their home stations. So it's not entirely clear if all 16 Sr Judges would have been in play for this in addition to the 29 Active Judges.

  • 71. Pat  |  May 21, 2014 at 2:03 pm

    In that case, if all Sr Judges have been in play the odds of a 2-1 GOP panel become 25%
    Note that there was a 4% chance of getting 3 GOP judges.
    (And 46% chance of getting a 2-1 Dem panel, and 26% chance of getting 3 Dem judges)

  • 72. Retired_Lawyer  |  May 21, 2014 at 5:58 am

    Judge John E. Jones III, who just decided Whitewood v. Wolfe, invalidating the discriminatory marriage laws of Pennsylvania, was appointed by George W. Bush, with the endorsement of then Sen. Rick Santorum. We don't need Democratically-appointed judges, only fair ones.

  • 73. JayJonson  |  May 21, 2014 at 6:26 am

    Yes. District judges are expected to follow precedent from the Supreme Court. So far, since Windsor, all the district judges have done the right thing. Appellate judges seem more independent and perhaps even rogue. And of course some Supreme Court Justices seem not to be bound by anything other than their own prejudices.

  • 74. Ryan K.  |  May 21, 2014 at 7:35 am

    Quite confident that the one judge from the 4th Circuit will be ruling against equality when that likely 2-1 decision comes out in the VA case. He tipped his hand quite clearly in the oral arguments. Stuck in historic and discriminatory times he is!

  • 75. Zack12  |  May 21, 2014 at 7:51 am

    Applellate judges do indeed have a bit more power.
    As you noted though, aome aren't bound by anything but their own prejudices.
    We know Scalia, Thomas and Alito will be no votes.

  • 76. StraightDave  |  May 21, 2014 at 8:13 am

    Most district judges still have a potential career path open to them in an appellate court so they have a reason to be responsible, diligent and fair. I'm not saying appellate judges are not as good, but they don't have nearly the same need to look over their shoulder and can afford to be be a bit rouge. The number of SCOTUS openings for them is miniscule, so for most of them it virtually doesn't exist as a possibility. For SCOTUS justices, it matters ZERO what they say or do, so they don't have to give a shit.

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