Idaho and Alaska are asking the full U.S. Ninth Circuit Court of Appeals to reconsider court decisions overturning bans on same-sex marriage in those states.
On Tuesday, Idaho Gov. Butch Otter filed a request before the court asking for “en banc,” or full court review, of a decision from a three-judge panel overturning his state’s marriage law.
“I have repeatedly pointed out to the courts that unaccountable judges imposing their perception of social change on the law – rather than public policy being changed through the democratic process – undoubtedly will lead to increased religious strife and restrictions on private property,” Otter said. “For these important reasons, I will continue defending Idahoans’ self-determination and the will of Idaho voters who decided that traditional marriage is a core principle of our society.”
Todd Dvorak, a spokesperson for Idaho Attorney General Lawrence Wasden, told the Washington Blade his boss didn’t join Otter in the appeal to the Ninth Circuit. Instead, Dvorak said Wasden will file a petition for review before the U.S. Supreme Court “at the appropriate time.”
After the request was filed, the Ninth Circuit panel that overturned Idaho’s ban on same-sex marriage on Tuesday instructed the opposing side to file a response within 21 days.
The next day, Alaska Attorney General Michael Geraghty filed a similar request seeking en banc review before the Ninth Circuit. No appeals court has yet to rule on the merits of the Alaska law, but a district judge has determined the state’s ban on same-sex marriage is unconstitutional based on Ninth Circuit precedent.
“En banc hearing is warranted because Alaska’s appeal presents a question of extraordinary importance whose outcome is controlled by erroneous circuit precedent,” the request states.
In his statement accompanying his request before the Ninth Circuit, Otter cites that lawsuit that the anti-gay legal firm Alliance Defending Freedom filed on behalf of Don and Lynn Knapp, ordained ministers and owners of the Hitching Post wedding chapel in Coeur d’Alene. The couple alleges their constitutional right to religious freedom would be violated by their city’s 2013 non-discrimination ordinance if they’re compelled to officiate over same-sex marriages.
“One of the key arguments against the Idaho Constitution’s defense of traditional marriage has been that redefining it to include same-sex couples would not harm anyone,” Otter said. “But the Hitching Post example shows the fallacy of that position.”
According to local media reports, the City Attorney of Coeur d’Alene Michael Gridley responded by saying in a letter dated Oct. 20 the couple may be exempt from the non-discrimination law if they’re a not-for-profit religious organization, but could be subject to penalty if their business is for profit.
“If they are operating as a legitimate not-for-profit religious corporation then they are exempt from the ordinance like any other church or religious association,” Gridley writes. “On the other hand, if they are providing services primarily or substantially for profit and they discriminate in providing those services based on sexual orientation then they would likely be in violation of the ordinance.”
In theory, taking up the marriage issue with the full Ninth Circuit could improve the odds for opponents of gay nuptials because a greater number and more diverse body of judges would consider the issue. But one legal expert said it’s unlikely that’ll be enough for state officials to reverse decisions in favor of marriage equality in their states.
Doug NeJaime, a law professor at University of California, Irvine, said he doesn’t think the full Ninth Circuit will grant review of the marriage cases in the first place.
“Of course, the first question is whether en banc review is granted,” NeJaime said. “Given the Supreme Court’s action a couple weeks ago, there may not be many judges that want to spend resources reviewing the panel decision. And then there is certainly reason, given that Perry was also decided in the Ninth Circuit, to think a different result is unlikely.”