On Monday, the U.S. Court of Appeals for the Ninth Circuit cleared the way (.pdf) for same-sex couples in Idaho to begin seeking marriage licenses as of noon (Eastern time) on Wednesday. Lyle Denniston at SCOTUSblog reports, Once more, same-sex marriages allowed in Idaho:
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.
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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.
[En banc hearings are not generally granted, and is quite likely to be denied in this case.]
On Friday, the U.S. 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.
The Idaho Statesman adds, Appeals court lifts Idaho’s stay on same-sex marriage:
The 9th Circuit Court of Appeals says Idaho’s stay banning same-sex marriage dissolves at 10 a.m. Wednesday.
According to court documents filed Monday, the court’s decision comes after Idaho’s attorney general dropped its opposition to the stay. Meanwhile, Gov. C. L. “Butch” Otter maintained his resistance in a separate Monday court filing.
Attorney General Lawrence Wasden says his office, along with Ada County Clerk Christopher Rich and the state of Idaho, do not oppose lifting the stay. Wasden said that does not mean the state will not pursue further legal action.
Otter, however, repeated his prior arguments in Monday’s filing, implying he will continue fighting gay marriage in Idaho.
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After losing his request for a U.S. Supreme Court review of the 9th Circuit Court of Appeals decision affirming a U.S. District Court ruling striking down the state’s gay-marriage ban, Otter had issued this statement late Friday:
“The Supreme Court’s order lifting Justice Kennedy’s stay effectively allows same-sex marriage in Idaho as soon as the 9th Circuit directs compliance with its decision. I disagree with the court’s conclusion, which negates the 2006 vote of the people of Idaho, is contrary to the values of most Idahoans, and undermines fundamental states’ rights. But we are a nation of laws. Idaho now should proceed with civility and in an orderly manner to comply with any forthcoming order from the 9th Circuit.”