Idaho officials fought on several fronts Wednesday in hopes of stopping same-sex marriages from starting, as a result of the U.S. Supreme Court declining Monday to hear petitions concerning overturns of bans on same-sex marriage in five states.
The state’s legal efforts spark myriad questions, only some of which can be definitively answered:
Q: What exactly did Idaho Gov. C.L. “Butch” Otter ask the U.S. Supreme Court to do?
A: In a 29-page application, filed both in person and electronically at 8:27 a.m. EDT, Otter asked Justice Anthony Kennedy to issue a “temporary, immediate stay” of an order by the 9th U.S. Circuit Court of Appeals. The lower court’s order mandated that Idaho begin issuing same-sex marriage licenses at 8 a.m. MDT (10 a.m. EDT).
Q: Why did Otter ask Kennedy and not the full court?
A: The Supreme Court divides up certain tasks among individual justices. Kennedy, a native Californian, has been assigned the Western region that includes Idaho. This means, for instance, that when inmates from these Western states seek to stop scheduled executions – or when Western governors seek to stop court-ordered marriages – they must first go through Kennedy.
Q: How long a stay has Otter requested?
A: Essentially, until all legal options have been exhausted. At the least, Otter asked Kennedy to stay the marriages until a three-judge panel of the 9th Circuit had ruled on a similar application for a stay.
Q: But didn’t the 9th Circuit already rule?
A: Yes, but Otter and state Attorney General Lawrence G. Wasden want the decision by a three-judge appellate panel striking down Idaho’s ban on same-sex marriage to be reviewed by 11 judges from the 9th Circuit. This is called en banc consideration. Otter and Wasden want to block the marriages until the 9th Circuit makes this en banc decision.
Q: Will the 9th Circuit take up the Idaho marriage case en banc?
A: Maybe not. A majority of the circuit’s 29 active judges would have to vote to take up the case en banc. This doesn’t happen a lot.
`Q: What happens if Idaho loses the en banc decision?
A: In the event of an en banc loss – which, frankly, seems likely – Otter asked Kennedy to keep blocking the marriages pending an Idaho appeal to the Supreme Court. If granted, this would put off same-sex marriages for months.
Q: Didn’t the Supreme Court already say it wasn’t taking up same-sex marriage cases this year?
A: Yes and no . The court did decline to hear seven petitions concerning overturns of bans on same-sex marriage in five states. Otter, though, maintained in his legal filing to Kennedy that the 9th Circuit’s Idaho ruling essentially raised different legal questions that resulted in a split with other circuits.
Q: What did Kennedy do?
A: At 9:46 a.m. EDT, 14 minutes before the marriages were to commence, the Supreme Court emailed the justice’s two-paragraph order staying the 9th Circuit’s mandate. Kennedy gave Boise attorney Deborah A. Ferguson and other advocates of same-sex marriage until 5 p.m. Thursday to respond.
Q: What will happen once Kennedy gets the response?
A: The 78-year-old Kennedy, who’s authored some of the court’s seminal decisions upholding gay rights, has several options: He could decide by himself whether to extend the stay or he could pass the ball to his colleagues, letting the full court decide.