Acting swiftly on a holiday afternoon, the U.S. Court of Appeals for the Ninth Circuit cleared the way for same-sex couples in Idaho to begin seeking marriage licenses as of noon (Eastern time) on Wednesday. The three-judge panel acted Monday without waiting for the arrival of some of the briefs it had summoned on that issue last Friday.
With the two-day delay before the order is to take effect, state officials in Idaho are expected to return to the Supreme Court to seek a delay — a repeat of the effort that the Justices turned down last Friday. In new filings in the Ninth Circuit earlier Monday, Idaho’s governor had said that his lawyers read last week’s refusal by the Justices to delay those marriages to be an action of little consequence, and that a new plea for postponement would be made with the Justices if the Ninth Circuit refused a delay. (Those new filings are here and here.)
The Ninth Circuit’s one-sentence order granted a request by same-sex couples to put into effect the decision they had won last Tuesday in that court, nullifying the Idaho ban. The three-judge panel had held off doing so while it awaited the Supreme Court’s action last week on the state’s plea for postponement.
By issuing that order, the Ninth Circuit began sorting out a somewhat complex and confusing situation regarding Idaho and the marriage question. In response to an order the panel had issued last Friday, calling for new briefs, Idaho officials had submitted documents voicing opposition to letting gay and lesbian couples begin to wed.
Once those state filings were in hand, the Ninth Circuit acted with unusual speed. It issued its order lifting an earlier stay, and then told lawyers for the same-sex couples that they need not file any reply to the state’s documents.
The Ninth Circuit also still has before it, and has not yet taken action on, a plea filed last Wednesday by Idaho officials to delay the ruling until they could seek a rehearing before the en banc Ninth Circuit, and then use the option of going back to the Supreme Court. That plea has not been mentioned by the Ninth Circuit since it was filed nearly a week ago..
On Friday, the Supreme Court turned down a request that the state had simultaneously filed with the Justices, seeking a delay of the Ninth Circuit’s ruling. The Justices gave no explanation in their order; there were no noted dissents.
Lawyers for Governor C.L. “Butch” Otter on Monday characterized the Justices’ order refusing the stay request as meaning no more than that they wanted the proceedings in the Ninth Circuit to play out first. It was not an action on the constitutionality of the state’s ban, or on the legal right of same-sex couples to take advantage of the Ninth Circuit’s ruling in their favor, the governor’s new filing argued.
That being the situation, the new documents said, the Ninth Circuit should not now clear the way for same-sex marriages in the state, but should instead set up a schedule for filing of new briefs on the state’s plea for delay and for en banc review. If the Ninth Circuit refuses a postponement, the letter said, it should agree to a “reasonable period” of delay so that the state could return to the Supreme Court with a new application for a stay.
In arguments opposing the same-sex couples’ request for immediate implementation of the decision in their favor, the governor’s lawyers repeated many of the points they had made in their Supreme Court filings last week, to buttress that plea for a delay. Those arguments included the claim that the Idaho case raises different issues than were at issue in the seven petitions for review from other states that the Justices had declined to review last Monday.
Another new filing Monday in the Ninth Circuit indicated a split of views among Idaho officials. In a separate brief filed by the state’s attorney general, on behalf of the state itself and Ada County Clerk Christopher D. Rich of Boise, those officials indicated that they did not oppose immediate implementation of the Ninth Circuit’s ruling. Those officials added, though, that their stance did not mean that they agreed with that ruling, nor, they said, did it mean they would not try to obtain “further review’ of the Tuesday ruling.
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