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Same sex marriage fate headed higher up the federal courts food chain

Same sex marriage fate headed higher up the federal courts food chain

Geoffrey Talmon
May 20, 2014

While Federal Magistrate Judge Candy Dale’s decision and the 9th Circuit’s subsequent stay of that decision in Latta v. Otter sent both supporters and opponents of Idaho’s same sex marriage ban on a roller coaster ride last week, the decision’s analysis provides some useful insight as to how federal courts treat discrimination cases.

Judge Dale’s decision declared that Idaho’s statutory and constitutional bans on same sex marriage were in violation of both the due process clause and the equal protection clause of the 14th Amendment of the Constitution of the United States.

The court found marriage to be a “fundamental right,” and also relied on a recent 9th Circuit case to determine that classifications based on sexual orientation should be subject to heightened review. Based on these two factors, the court applied what is known as “strict scrutiny” to Idaho’s same sex marriage ban, determining that the state’s justifications were not sufficient to uphold the law.

Based on her analysis, Judge Dale declared both the statutory and the constitutional bans to be unconstitutional, and she permanently enjoined the state and its officers from enforcing them. The state immediately appealed the decision up to the 9th Circuit Court of Appeals, requesting that Judge Dale put a stay on her decision.

In a somewhat telling move on her part, Judge Dale denied the request for a stay, having determined that the likelihood of the state prevailing on appeal was so low that a stay need not be granted. This determination was not too much of a reach on Judge Dale’s part, however, considering that (not including this case) plaintiffs in similar suits are 10-0 since the Supreme Court of the United States struck down a portion of the Defense of Marriage Act in US v. Windsor, which was decided in 2013.

The 9th Circuit has since granted an emergency stay of Judge Dale’s decision and order while it determines whether a permanent stay should be granted until the appeal to the 9th Circuit has been concluded.

With many commentators expecting the 9th Circuit to uphold at least part of Judge Dale’s decision—most courts have relied upon the equal protection clause, but not all have also relied upon the due process clause—and with Gov. Otter indicating his willingness to take this fight all of the way to the Supreme Court, this battle is far from over, and the roller coaster ride will continue for both supporters and opponents of the ban.

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