Three-judge panels of the San Francisco-based U.S. Court of Appeals for the 9th Circuit issued two rulings of some consequence from the perspective of LGBT rights on May 20. In one, the court delayed implementation of U.S. Magistrate Candy Dale’s ruling striking Idaho’s ban on same-sex marriages while expediting the court’s consideration of the merit’s of Idaho’s appeal of that ruling. In the other, the court rejected a challenge by Prop 8 Committees (organizations formed to support the enactment of California Proposition 8 in the 2008 elections) to California’s law requiring such committees to disclose the identity of their donors.
In Latta v. Otter, Magistrate Dale ruled on May 13 that Idaho’s refusal to allow same-sex couples to marry, or to recognize the out-of-state marriages of same-sex couples, violates the 14th Amendment. Magistrate Dale ordered that the state cease enforcing the same-sex marriage ban as of 9 a.m. on May 16, and she subsequently denied a petition by Governor Butch Otter to stay her ruling while the state appealed to the 9th Circuit. Governor Otter then applied directly to the 9th Circuit, which issued a temporary stay while it considered whether to stay the order until a merits panel could hear and decide the state’s appeal of Dale’s Order. On May 20, the 9th Circuit granted Otter’s petition, citing the Supreme Court’s action of January 6, 2014, when it granted Utah Governor Gary Herbert’s petition to stay a marriage equality ruling by U.S. District Judge Robert Shelby, which the state was appealing to the 10th Circuit.
However, implicitly acknowledging the urgency of plaintiffs’ quest for the right to marry or have their marriages recognized, the court scuttled its original usual briefing schedule for the appeal, and set tight deadlines, specifying that neither party could ask for time extensions on the deadlines. The court set a schedule under which briefing will be completed by the end of July, and specified that the case should be argued during the week of September 8. Although that sounds rather far off, it is actually a relatively speedy schedule for a federal appeals court.
Although the panel did not offer an explanation for its actions, one of its members, Judge Andrew D. Hurwitz, an Obama appointee and the junior member of the three-judge panel, issued a concurring opinion explaining why he agreed with the panel’s action. Referring to the Utah stay, he said that the Supreme Court “has virtually instructed courts of appeals to grant stays in the circumstances before us today,” but said that “if we were writing on a cleaner slate,” he would conclude that the usual factors applied by courts to deciding applications to stay trial court decisions “counsels against the stay requested by the Idaho appellants.” (The appellants in this case are Governor Otter and other state officials sued in the trial court.)
Hurwitz explained further, “It is almost certain that the Supreme Court will eventually resolve the merits of this appeal, and I do not venture to predict the Court’s ultimate conclusion. But, in light of this court’s recent decision in SmithKline Beecham v. Abbott Laboratories, 740 F.3d 471 (9th Cir. 2014), I find it difficult to conclude that the Idaho ban on same-sex marriage would survive interim Ninth Circuit review.” Since the first factor courts consider in deciding whether to grant a petition for a stay is whether the party requesting the stay has made a “strong showing” that it will prevail on appeal, and the SmithKline court ruled that “heightened scrutiny” applies in judicial review of laws that discriminate based on sexual orientation, “it is difficult to see how the Idaho appellants can make a ‘strong showing’ that they will prevail in their defense of a measure that denies the individual appellees the right to marry because of their sexual orientation.”
Hurwitz also noted that the balance of harms as between appellant and appellees definitely favors the appellees, who oppose the stay, and that he would not find that the public interest supported issuing a stay. “I cannot identify any relevant differences between the situation before us today” and the Utah case, he wrote. Even though the Supreme Court’s stay in the Utah case is not “precedential” in “the strictest sense,” he concluded, “it provides a clear message — the Court (without noted dissent) decided that district court injunctions against the application of laws forbidding same-sex unions should be stayed at the request of state authorities pending court of appeals review.”
Hurwitz’s explanation suggests that if Pennsylvania Governor Tom Corbett were to seek a stay of U.S. District Judge John E. Jones III’s order ending the ban on same-sex marriages in Pennsylvania, he would undoubtedly get a stay from the 3rd Circuit.
But it suggests something else as to which observers are eager for some sort of intelligence: whether the 9th Circuit is going to hold an en banc reconsideration of the SmithKline decision. Anybody inclined to try to read tea leaves might note that Hurwitz refers to SmithKline as if it is settled law in the 9th Circuit, unlike Oregon U.S. District Judge Michael McShane, who decided not to rely upon it in his ruling on May 19 in Geiger v. Kitzhaber, because the SmithKline panel had not issued its mandate to the parties and the 9th Circuit had not yet announced the result of its internal poll of judges to determine whether to hold an en banc reconsideration. An announcement of en banc review would effectively cancel the panel decision as a precedent; if such review were likely to be granted, Judge Hurwitz surely would not rely on the panel decision in his prognostication about how Idaho’s appeal is likely to fare in the 9th Circuit.
The 9th Circuit’s ruling in ProtectMarriage.com-Yes on 8 v. Bowen, also announced May 20, was not unexpected. The court affirmed a ruling by Chief Judge Morrison C. England, Jr., of the Eastern District of California, which had rejected a 1st Amendment challenge to the state’s disclosure statute as it applied to a controversial ballot initiative. ProtectMarriage’s challenge specifically focused on the post-election reporting of donors during the short period immediately before the vote, arguing that post-election reports are unnecessary to serve the purpose of letting voters know who is behind a ballot question before they vote. The court pointed out that this is not the only purpose of the reporting requirements. They are also intended to “preserve the integrity of the electoral process by deterring corruption and the appearance of corruption,” and to “permit accurate record-keeping” in order to “enhance the public’s future associational rights by offering voters information about which policies those seeking their vote have previously endorsed.” The court pointed out that the Supreme Court has rejected facial challenges to contribution disclosure requirements in several cases, “holding that these substantial interests outweigh the modest burdens that the challenged disclosures impose on First Amendment rights.”
ProtectMarriage also sought to have the court order California officials to end continuing public access to this information. The trial court had rejected that demand, citing the same considerations that support the disclosure requirement in the first place, but the 9th Circuit panel decided that the trial judge should not have ruled on this question because the passage of time had rendered it “moot.” That is, the information has been publicly available both on-line and in hard copy for more than five years, so the court could not see how it could now be treated other than as publicly-known information. The court directed the trial court to vacate the part of its opinion dealing with this issue, with one judge dissenting on the point.Tags: 9th Circuit Court of Appeals, Governor Butch Otter, Idaho gay marriage stay, Idaho marriage equality stay, Idaho same-sex marriage stay, Prop 8 Proponents, ProtectMarriage.com-Yes on 8