Idaho governor Butch Otter lost his fight to have the full 9th U.S. Circuit Court of Appeal reinstate the state’s ban on same-sex marriage on Friday.
By contrast, today, the U.S. Supreme Court refused to take up an appeal from a Louisiana same-sex couple to review the state’s ban, which had been upheld by a federal trial judge in New Orleans. As SCOTUS Blog points out, the decision is not a reliable indicator of its interest in the authority of states to ban same-sex marriage. The Louisiana appeal sought to bypass the 5th Circuit appellate review.
In the 9th Circuit, the appeals court denied Otter’s petition for en banc review of its earlier opinion that struck down Idaho’s law that banned gay marriage.
Three judges on the court dissented. Judge Diarmuid O’Scannlain wrote that just one month after the 9th Circuit struck down Idaho and Nevada traditional marriage laws, the 6th Circuit Court of Appeals upheld essentially identical laws in Michigan, Ohio, Tennessee and Kentucky.
“Clearly the same-sex marriage debate is not over,” O’Scannlain wrote. He was joined by Judges Johnny Rawlinson and Carlos Bea.
Indeed, the U.S. Supreme Court Monday put appeals of the four same-sex marriage cases from the 6th Circuit on its Friday conference for consideration this week, Lyle Denniston of SCOTUS Blog reports.
To gain a full 11-judge en banc review, a majority of the active, voting judges on the 29-judge court must agree.
O’Scannlain pointed out the U.S. Supreme Court has not decided the issue.
“Regardless of one’s opinion on the merits of the politically charged and controversial issues rained by these cases – we are presented with a ‘question of exceptional importance’ that should have been reviewed by an en banc panel,” O’Scannlain said.
Case: Latta v. Otter, No 14-35420