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to Section One | to Arts & Entertainment
posted Friday, June 6 2014 - Volume 42 Issue 23
Idaho Governor asks for full Ninth Circuit review of marriage ruling
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Idaho Governor asks for full Ninth Circuit review of marriage ruling

by Mike Andrew - SGN Staff Writer

Idaho Governor Butch Otter filed a motion on June 2 to have his state's marriage equality case heard by the full Ninth Circuit Court rather than a three-judge panel, as would normally be the case.

In the usual course of appeals, a case would be heard by a three-judge panel of the Circuit Court, but if a party to the suit is not satisfied with the panel's ruling, they have the right to ask for what is called an en banc review - a decision by the full Circuit Court. By asking to dispense with the panel and go directly to en banc review, Otter is hoping to stream line the process.

Since the Ninth Circuit has 29 judges, an en banc hearing would include Chief Judge Alex Kozinski and 10 other judges chosen at random. Otter's attorneys said an en banc review would be more authoritative and convincing than a decision by a three-judge panel.

'Because the marriage issue is so passionately contested and so divisive among the citizenry, the perception of the legitimacy of this court's resolution of it must be of paramount concern,' the attorneys argued in their motion.

'A decision by an 11-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.'

Federal Magistrate Judge Candy Dale struck down Idaho's ban on same-sex marriages on May 13, but the Ninth Circuit stayed her ruling on May 20 at the request of state officials who said they would appeal Dale's decision.

In their ruling staying Judge Dale's decision, the Ninth Circuit also ordered an expedited review of the case. September 8 has been set for the appeal hearing.

In granting the stay, Appellate Judge Andrew Hurwitz wrote that he believed Idaho's marriage ban would not survive Ninth Circuit review, but the court felt that the U.S. Supreme Court's decision granting a stay in a similar Utah case established a precedent that had to be followed.

Otter has also asked the Ninth Circuit to clarify what they meant by 'heightened scrutiny' in a previous ruling involving a Gay juror excluded from hearing a civil suit between two pharmaceutical companies.

In the SmithKline ruling in March, the Ninth Circuit said that since the U.S. Supreme Court decision in USA v. Windsor - where the high court struck down DOMA - differential treatment of LGBT persons must be examined with heightened scrutiny, and not just rational basis review.

In other words, said the Circuit Court, to treat LGBT people differently from straight people you must show more than a simple rationale, you must show a compelling state interest that cannot be satisfied in any other way.

This obviously would apply to state marriage laws, and is the reason Judge Hurwitz would doubt that the Ninth Circuit could uphold Idaho's discriminatory one man-one woman law.

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