The Idaho governor has asked a the 9th U.S. Circuit Court of Appeals to fast track a constitutional challenge to same-sex marriage in Idaho by having an 11-judge en banc review instead of the normal three-judge panel.
Gov. C.L. Otter filed a petition with the appeals court Friday asking that the state’s appeal be heard by the full court in what’s known as an en banc appeal.
He argued the circuit has a conflicting standard for judicial review of claims of discrimination based on sexual orientation and the Idaho case would the “optimal vehicle” for resolving the issue.
In 1990 the appeals court held that the lowest standard – a rational basis – should be used to judge claims of discrimination based on sexual orientation. But in January, a new three-judge panel applied a higher standard – heightened scrutiny – in a dispute over elimination of gays from a jury pool in an antitrust suit between two drug companies.
Otter argued that the 9th Circuit must resolve the conflicting panel standards before it can decide the Idaho gay marriage case.
The governor also argued the issue of same-sex marriage is so important that it should be considered en banc, without delay for a three-judge panel decision which would certainly be appealed, Otter argued.
Same-sex marriage issue is being litigated in 32 states and appeals are currently pending in federal appeals courts based in 4th, 5th, 6th, 9th and 10th circuits.
In addition to the Idaho case, the 9th Circuit has appeals from Nevada, Oregon and Hawaii over same-sex marriage, although the state of Hawaii has approved same-sex marriage and the case could be dismissed.
The current dispute began in Idaho following the passage of a ballot initiative in 2006 declaring marriage as the union of a man and a woman.
Four same-sex couples living in Idaho challenged the law in November 2013. Two couples wished to marry in Idaho and two couples wanted Idaho to recognize their out-of-state marriages.
The argued the ballot initiative violated their due process and equal protection rights under the 14th Amendment of the Constitution.
On May 5, U.S. Magistrate Judge Candy Dale invalidated Idaho law preserving marriage for one man and one woman and applied “heightened scrutiny.”
Otter appealed and requested an emergency stay of Dale’s order while the appeal was pending.
The 9th Circuit did stay Dale’s order and ordered speedy briefing of the issues.
In the Nevada marriage case, the appeals court set the case for the September oral argument calendar.
Otter asked the court to hear Idaho’s case by 11 judges on September 8.
“This case is the optimal vehicle for eliminating, by en banc review, the present conflict and uncertainty in this court’s level-of-judicial-scrutiny jurisprudence,” he argued.
Case: Otter v. Rich, No. 14-35420