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Ninth Circuit asked to hear Idaho same-sex marriage case with 11-judge panel

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Ninth Circuit Court of Appeals
Ninth Circuit Court of Appeals
On Friday, the governor of Idaho, C.L. “Butch” Otter, asked 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.


  • 1. Ragavendran  |  June 2, 2014 at 10:05 am

    It's 1pm ET. Has a response been filed by the Plaintiffs with Justice Kennedy? The docket doesn't show anything. Kathleen has posted Oregon's response in opposition here.

  • 2. Scottie Thomaston  |  June 2, 2014 at 10:08 am

    I'm confused about that as well. The docket page is always really slow, FWIW, with Supreme Court cases. And it's more difficult to get SCOTUS filings. But as of now, I've only seen the state's response.

  • 3. Ragavendran  |  June 2, 2014 at 10:11 am

    Ha ha… a quick scan of Oregon's response (their Table of Contents) says it all: "NOM has failed…"

  • 4. Scottie Thomaston  |  June 2, 2014 at 10:12 am

    Here it is:

  • 5. Rose  |  June 2, 2014 at 10:40 am

    91 pages……ugh:(

    That's a lot of pages just to basically say NOM has NO business in the State of Oregon's affairs!!!

  • 6. Mark  |  June 2, 2014 at 10:43 am

    You can't just say "I object.

  • 7. Rose  |  June 2, 2014 at 10:50 am

    I understand that, but one DOESN'T need 91 pages to argue successfully why NOM should be denied the right to intervene…….to me, it's just wasted paperwork.

    Anyways, this request should have already been denied…..the fact that it hasn't, makes me a little concerned!!!

  • 8. Mike_in_Houston  |  June 2, 2014 at 11:05 am

    Agreed. I've been concerned; I haven't seen too many others online who are. I hope they are right and I am wrong.

  • 9. Mike_in_Houston  |  June 2, 2014 at 11:04 am

    The pleading itself is only 30 pages. The rest of it is an appendix, a transcript of the May 14 hearing.

  • 10. KarlS  |  June 2, 2014 at 10:52 am

    It's amazing how it takes 20 pages to say "NOM is full of shit".

  • 11. davep  |  June 2, 2014 at 2:56 pm

    I like this passage on page 17, which points out that it even if NOM were allowed to intervene, they still couldn't win because they wouldn't have standing to appeal:

    "Additionally, even if NOM were permitted to intervene, that victory would be quixotic at best given the present posture of the case."

  • 12. Ragavendran  |  June 2, 2014 at 11:15 am

    Will there be a reply brief from NOM? I recall that there was one from Utah in the Kitchen stay application before Sotomayor.

  • 13. brandall  |  June 2, 2014 at 2:13 pm

    Hot off the [virtual] press:

    The National Organization for Marriage has until 10 a.m. Tuesday PDT to respond to the briefs from Rosenblum and the plaintiffs. Kennedy, who handles emergency requests from the region including Oregon, could rule on NOM's motion or pass it on to the full court.

  • 14. KarlS  |  June 2, 2014 at 3:51 pm

    How many chances are those atavistic assholes going to get????????????
    jesusfuckingchrist…enough is enough. GRRRRRRRRRRRRRR

  • 15. BenG  |  June 2, 2014 at 4:48 pm

    KarlS, they're entitled to same number of chances that every other applicant gets to request a stay. SCOTUS, like all federal courts, has an established process to try to ensure that justice ultimately prevails. I agree that our system can be frustratingly slow sometimes, especially when the arguments being advanced seem to lack merit, but NOM is free to try. They're only embarrassing themselves.

  • 16. AndyinCA  |  June 2, 2014 at 5:00 pm

    Is there a remedy, at some point, for organizations (or their counsel) for frivolous (or poorly premised) petitions? These guys are costing the public, AND the courts, a ton of money…

  • 17. grod  |  June 2, 2014 at 6:40 pm

    Maine's Commission on Governmental Ethics and Election Practices just fined NOM the maximum $52,000 for that antic during the 2009 ballot initiative. In February 2012, the US Supreme Court declined to hear NOM's appeal of a First Circuit Appeal Court's decision that Maine's Ballot Initiative/election law was constitutional. NOM brought another action against the Commission which the Appeals Court found against NOM. NOM appeals to the Supreme Court and in October 2012 the Supremes declined to take up the case. Frivolous or poorly premised was not what said, but I'm sure it was thought.

  • 18. Mike in Baltimore  |  June 2, 2014 at 6:49 pm

    Pretty soon, some judge will have NOM in front of him/her, and will lower the 'contempt of court' (by means of wasting judicial time and resources) boom on them, just like the judge in Georgia did with Oily Taintz.

    The sooner that day comes, the happier I will be.

  • 19. Dr. Z  |  June 2, 2014 at 7:35 pm

    This should be about more than contempt. It's money laundering.

  • 20. Mike_in_Houston  |  June 2, 2014 at 11:12 am

    I wonder if they waited until the very last second to file their response and then couldn't get it filed because of a computer glitch. Of course, then they will be whining that it's the computer's fault their pleading wasn't filed and that they should get an extension. Another delaying tactic…

  • 21. BenjiCA  |  June 2, 2014 at 11:44 am

    And also, NOM will say that it's their lawyers who told them to file so late so it's not their fault and that their petition should be accepted; just as they are claiming that in Maine, their lawyers said it's okay to redact the names and that you don't have to reveal them.

  • 22. KarlS  |  June 2, 2014 at 12:01 pm

    They probably were hoping people (the court) would forget that they knew perfectly well about the proceedings two months before…as they even slipped up and revealed that in their own public releases! They lied about 'not knowing' and thought they could get away with it.

  • 23. BenG  |  June 2, 2014 at 7:19 pm

    Just to clarify, the plaintiffs to which the original post referred are the couples seeking marriage equality. In the case currently before SCOTUS, the original plaintiffs, along with the original defendants, are all collectively referred to as the respondents to NOM's application for a stay. NOM is referred to as the applicant.

  • 24. JimT  |  June 2, 2014 at 11:11 am

    I wonder how soon we'll hear what's happening with the SmithKline en banc

  • 25. Ragavendran  |  June 2, 2014 at 11:20 am

    There is no way to say. Kevin's comment in a previous thread was illuminating:

    "The en banc process can be painstakingly long. Looking at their current docket, there are cases that languished for six months or more before en banc orders were issued. I am doubtful that the call coming sua sponte from a judge makes much difference too. Pacific Shores Properties v. Newport Beach was decided on September 20, 2013, a sua sponte call made, and an order denying en banc review not issued until March 4, 2014."

    And when I took a closer look at the Ninth Circuit rules, I found this Rule 5.1(b)(2):

    "The en banc coordinator shall supervise the en banc process, including time schedules provided in this chapter; shall circulate periodic reports on the status of each case under en banc consideration; may, for good cause, extend, suspend, or compress the time schedules provided in this Chapter; may designate another judge to perform all or part of the en banc coordinator's duties during the coordinator's absence; may suggest, for any particular case, a modification or suspension of the provisions of this chapter; and may for good cause suspend en banc proceedings."

    This is a lot of power to the en banc coordinator to essentially, if there exists "good cause", delay the voting and release of the final order as long as they want to. What are the chances that O’SCANNLAIN is our en banc coordinator here?

  • 26. Zack12  |  June 2, 2014 at 12:09 pm

    I would say very good. He is just as much of a bigot as Scalia, if not a bigger one and anything he can do to delay equality, he will do.

  • 27. Pat  |  June 2, 2014 at 2:28 pm

    But will they at least have the decency to communicate whether SmithKline (granting heightened scrutiny) is final or still up for debate BEFORE the September appeals of the Idaho and Nevada cases??

  • 28. Ragavendran  |  June 2, 2014 at 4:53 pm

    I really wish en banc will be denied and a mandate issued by the September hearing of the two appeals. But nothing is certain. Expect no "decency". I'm reposting an article about how the Ninth Circuit can get barbaric on occasion here, when it comes to en banc reviews:

  • 29. Stefan  |  June 3, 2014 at 1:45 am

    I remember the en banc request for Perry was officially denied on June 5th. Since it was around the same time of the year as SmithKline, I expect an official ruling to be released any day (the reason it may take a while longer for dissents is that the dissenting justices are formally writing it out).

  • 30. Retired_Lawyer  |  June 2, 2014 at 5:30 pm

    We should probably bear in mind that our interest in SmithKline (the scrutiny level) is just one aspect of the case to the actual parties–two enormous, powerful, rich drug companies locked in a massive anti-trust suit, with legal expenses to each side by now most likely in eight figures. I will make an educated guess that the drug companies and their counsel will run out of patience if the en banc issue is not resolved promptly, and will respectfully request to be told just what the hell the Ninth Circuit is doing.

  • 31. Dr. Z  |  June 2, 2014 at 5:52 pm

    But do the parties to the lawsuit actually have any influence over what the Ninth does? As near as I can figure they are as trapped in this as we were in Perry, taking a leisurely year-long digression to the California SC (also not noted for their timeliness.) In the end it was all for nothing, as SCOTUS threw out the whole convoluted Ninth circuit opinion and left us with Walker's original district court opinion.

    I think the Ninth is out of the running in the SSM race to the SCOTUS. I doubt that they'll even issue their en banc ruling before SCOTUS makes the whole exercise moot.

  • 32. Weaverbear  |  June 2, 2014 at 4:47 pm

    An aside here; is it time to to split the 9th into 2, if not 3 circuits?

  • 33. Ragavendran  |  June 2, 2014 at 5:02 pm

    The earliest proposal to split the Ninth circuit was more than two decades ago. Since then, several proposals have been put forth. From Wikipedia:

    "In March 2007, Associate Justices Anthony Kennedy and Clarence Thomas testified before a House Appropriations subcommittee that the consensus among the justices of the Supreme Court of the United States was that the Ninth Circuit was too large and unwieldy and should be split."

    Googling "split ninth circuit" brings up a lot of articles. Here's an excerpt from one:

    The Ninth Circuit, in contrast, is dismissed by critics as a "dysfunctional" court that is "out-of-touch with American jurisprudence, common sense, and constitutional values." As a result of its remarkable penchant for launching "bunker buster" opinions into the Nation's psyche, the court has been called an "ongoing spectacle," and its judges described as "ghoulish poster children for what is fundamentally dishonest about liberal judicial activism."

  • 34. Retired_Lawyer  |  June 2, 2014 at 5:16 pm

    Of my own personal recollection I can assure you that plans were being drafted to subdivide the Ninth Circuit more than forty years ago. The problem, then, as now, is the resulting circuits would either leave California in its own circuit (hear the conservatives howl) or split California between two circuits (a nightmare for an orderly review of state laws) or have a coastal circuit (which would still be too big) and an inland circuit that could be even more reactionary than the Fifth. Always the devil is in the details. The Ninth is likely to remain as it is for many years to come.

  • 35. Ragavendran  |  June 2, 2014 at 5:24 pm

    Oh wow, I had no idea it went so far back. Wikipedia only mentions a 1993 proposal. Why not have California, Arizona and Nevada be a circuit, and the others be another? That is a six-seven split in terms of the number of federal districts. Of course, this is the most obvious thing that occurred to me and I'm sure it has been considered, but why hasn't it worked?

  • 36. Zack12  |  June 2, 2014 at 8:10 pm

    That split sounds like a good idea to me but they've been trying to split it for decades and no luck.

  • 37. Eric  |  June 2, 2014 at 8:12 pm

    In short, because Arizona and Nevada don't want to be left alone in a circuit with California and they each have two senators to keep it from happening.

  • 38. Mike in Baltimore  |  June 2, 2014 at 6:44 pm

    I believe splitting the 9th Circuit was a heated (but minor) issue in the 1960 Kennedy/Nixon Presidential campaign. At the time, Southern California was a HUGE hotbed of radical CONservatism, and CONservatives thought if they could split the 9th, they might get a liberal circuit (no loss for CONservatives, as they thought of the 9th, even then, as a very liberal Circuit, but the Circuit containing SoCal would be safe for CONservatives (which as part of the then-current 9th, it was not).

    If I remember correctly, the entire issue of splitting the 9th almost derailed the creation of the 11th Circuit in 1981.

    It is NOT just a recent issue.

  • 39. Randolph Finder  |  June 3, 2014 at 8:00 am

    I've also seen proposals to split the 9th along the 42nd parallel (the CA northern Border) putting AK/WA/OR/ID in one and CA/NV in the other (where HI and the Pacific Islands go TBD). the new Circuit would be based in Seattle. Note, we already have a Circuit with three states where one state has a majority of the Judges, the 2nd (NY/VT/CT).

  • 40. DrHeimlich  |  June 2, 2014 at 11:38 am

    The Oregon state officials also filed a brief to Justice Kennedy:

  • 41. Big Rick  |  June 2, 2014 at 11:49 am

    I just read the table of contents in the state defendant's filing. Permit me to summarize it for anyone who doesn't care to read it.

    Here goes:

    "Nom has failed …".

  • 42. MichaelinFlorida  |  June 2, 2014 at 11:42 am

    My favorite: "NOM has conceded, however, that it represents the clerk in his or her personal capacity only. That concession is fatal.

  • 43. Jae  |  June 2, 2014 at 5:53 pm

    I think NoM is doing this to see what they can and can't get away with in the next state case they want to get involved in.

  • 44. FilbertB  |  June 2, 2014 at 8:23 pm

    Yes, and their donors should also get that message.

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  • 46. SoCal_Dave  |  June 2, 2014 at 8:18 pm

    OK, I'm probably just being dense, but the article is about Idaho and the first (and all subsequent) comments seem to be about Oregon. I know there's so much going on that we often comment on other issues besides the posted article, but for some reason this is really throwing me. Are these somehow related?

  • 47. Dr. Z  |  June 2, 2014 at 8:46 pm

    Well, the situation in Oregon *is* being argued before the justice who is eventually going to decide this entire dispute, which is a bit more entertaining than watching the Ninth Circuit slowly turn Butch Otter into amber.

  • 48. SoCal_Dave  |  June 2, 2014 at 9:22 pm

    Thanks, Dr.Z !

  • 49. GregG  |  June 2, 2014 at 9:22 pm

    NOM's attempt to have their organization act as an "umbrella" for their member individual plaintiffs reminds me of an aspect of the High Tech Gays v. DISCO case from the 1980's that is not generally mentioned. In 1984, HTG filed suit against the Defense Intelligence Security Clearance Office regarding the unreasonable delays faced by some of its members in attempting to get required security clearances to work for defense contractors. As I recall, the District Court (ND Calif.) disqualified HTG as a party to the case early on (but HTG remained in the case name) saying that only the individual plaintiffs could participate in the case. It would seem to me that NOM should also be disqualified in the Oregon case just as HTG was in the earlier case.

    The HTG v. DISCO case is most often mentioned for its discussion of the level of scrutiny. In 1987 The District Court declared a suspect class that warranted heightened scrutiny and found for the plaintiffs. In 1990 The Ninth Circuit reversed the lower court on both parts and thus the precedent for rational basis was cast in the Circuit (until this year).

  • 50. Richard L  |  June 3, 2014 at 5:25 am

    NOM will be around for as long as they have donors. They have a money-making scheme that some people believe. HTG was, I think, about gays being thought of as a security risk. That was a "business-based" reason. Now, all the anti-gay reasons are religious and based on "morals.". Here's a story from CA where a church actually seemed to think about their religion. NOM can wail all they want, they just look more hysterical. Gird our loins we must.

  • 51. Dr. Z  |  June 3, 2014 at 6:08 am

    At the time of HTG sodomy was still a crime and DADT was in full force under Reagan. The Navy blamed a 1988 explosion aboard the USS Iowa on a gay sailor who died in that tragedy. So if rational basis was the proper level of scrutiny for sexual orientation, then unfortunately the government had ample grounds for arguing that a security risk existed. (Never mind the fact that the security risk was self-inflicted, and that it was an exercise in circular reasoning.)

  • 52. KarlS  |  June 3, 2014 at 6:46 am

    DADT was instituted during Clinton's first term, if I recall correctly. Before that there was zero "protection" for gays in the military…discovery virtually guaranteed a less than honorable discharge.

  • 53. Steve  |  June 3, 2014 at 6:57 am

    There wasn't really any protection under DADT either. They military flat out lied when they said it would be an improvement or that they wouldn't do witch hunts anymore. On paper it was better, in that there should be credible evidence for an investigation for example. In practice, those rules were never properly communicated and followed. Commanders still launched investigations based on suspicions to turn up evidence. There were witch hunts until the early 2000s.

  • 54. JayJonson  |  June 3, 2014 at 7:29 am

    Yes, there were continuing witchhunts and invasions of privacy and persecution of various degrees. However, the difference was that most of the discharges for homosexuality after DADT were honorable rather than dishonorable. That was an important difference. Still, DADT was implemented in bad faith by the military. It is outrageous that it took 17 years to dismantle.

  • 55. Dr. Z  |  June 3, 2014 at 7:25 am

    Well technically yes, but as a practical matter there was little difference.

  • 56. Zack12  |  June 3, 2014 at 7:41 am

    Indeed… and the fact that many people kicked out never told anyone but got found out in a variety of different ways.

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