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Updates on the Oregon and Idaho Gay Marriage Appeals

By William Peacock, Esq. on June 02, 2014 | Last updated on March 21, 2019

It's the landmark civil right battle of our time, and if you thought we'd go a week, or even a few days, without another legal maneuver in a gay marriage case, you were sadly mistaken. If you're suffering from coverage fatigue, take solace in this: we're only covering the most interesting and odd battles out of the dozens of cases that are proceeding nationwide.

In this batch of updates, a non-party reaches out to SCOTUS to put a hold on gay marriages in a state where nobody (or at least, nobody in the litigation) is opposing gay marriage, while in Idaho, the impatient state is asking to fast forward to an en banc hearing and actually has a compelling argument for doing so.

SCOTUS Briefed on Oregon Stay Request

The National Organization for Marriage, a non-party whose motion to intervene in the Oregon case was denied, and who objected to Judge McShane's hearing of the case because he is openly gay, is now reaching to a higher power in their quest to halt Oregon's willing march to marriage equality: the Supreme Court.

As we noted before, the Oregon case was the most peculiar of all of the same sex battles, with the state and the plaintiffs agreeing that the state's ban on gay marriage was unconstitutional and the openly gay judge defending the law from the bench before striking it down.

Meanwhile, NOM sat outside and jumped up and down, demanding to be heard. Now, the organization is seeking a stay from the Supreme Court, and the briefs are in:

To us, a stay request, filed by a non-party, seems unlikely, even though the Supreme Court granted a similar stay in the Utah case -- at least in that case, the state actually wanted to defend it's law.

Idaho Wants to Skip Panel for Rare Initial En Banc

This is all the Supreme Court's fault. To explain, let's retrace the steps of ambiguous heightened scrutiny.

In Windsor, the Supreme Court's majority opinion, written by Justice Anthony Kennedy (who, coincidentally, will decide NOM's stay request), certainly seemed to apply some form of heightened scrutiny to sexual preference-based discriminatory laws, but declined to go further and lay out which standard.

The Ninth Circuit used that ambiguous precedent to hold that heightened scrutiny applies to sexual preference-based discrimination in a case involving Batson challenges and a gay juror: SmithKline. That case is on hold, however, after a single judge in the circuit made a sua sponte request for an en banc rehearing. The parties to the case agree that they do not want the en banc panel to address the level of scrutiny issue.

The standard, therefore, is in limbo until the Ninth Circuit decides whether to rehear that case en banc, and if it does, whether to address the level of scrutiny issue against the parties' wishes.

Now comes the new wrinkle: according to Equality on Trial, Idaho Gov. C.L. "Butch" Otter asked the court to skip a panel hearing of his state's appeal in their same-sex marriage case and, instead, go en banc at the outset -- providing a convenient and appropriate vehicle for clarifying the scrutiny issue, since, unlike the SmithKline case, both sides vigorously dispute the issue and want it addressed.

It's an interesting argument. We'll see if its enough to get Idaho where Michigan did not go before

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