Today, the four couples who successfully challenged Idaho’s ban on marriage for same-sex couples asked the United States Supreme Court to allow a federal appeals court’s decision invalidating the ban to go into effect.
On Tuesday, the United States Court of Appeals for the Ninth Circuit ruled 3-0 that Idaho’s ban on the freedom to marry for same-sex couples violates the U.S. Constitution’s guarantee of equal protection. Later that day, the Ninth Circuit ordered that its decision take effect immediately, which would have required Idaho to begin issuing marriage licenses Wednesday morning. That order followed a decision by the Supreme Court on Monday to decline review of several federal court of appeals’ decisions striking down marriage bans in other states.
On Wednesday morning, United States Supreme Court Justice Anthony Kennedy temporarily stayed the Ninth Circuit’s decision in response to a request by State of Idaho officials to keep that decision from taking effect while the state officials either ask for further review of the case by a larger panel of Ninth Circuit judges or ask the Supreme Court to review the case. Justice Kennedy instructed the plaintiff couples in the case to respond to the state officials’ request by 5 p.m. ET today.
The couples’ opposition papers filed today emphasize that “same-sex couples in Idaho will face concrete, grievous, ongoing harm” if the Ninth Circuit’s decision is placed on hold. The opposition papers explain: “On Monday of this week, the Court denied seven petitions for writs of certiorari seeking review of judgments from three courts of appeals that together held that five States’ prohibitions on marriages by same-sex couples violate those couples’ Fourteenth Amendment rights. [Idaho officials] point to nothing that would justify issuance of a stay in this case only days after the Court denied every other certiorari petition presenting the same claim, thus dissolving all stays in every other court of appeals and allowing the judgments of those courts to take effect. There is no relevant difference between this case and those that would warrant any different outcome here.”
The couples are represented by Boise attorneys Deborah A. Ferguson and Craig Durham of Ferguson Durham, PLLC, Deanne Maynard and Marc Hearron of the law firm of Morrison & Foerster, LLP, and the National Center for Lesbian Rights.