Thoughts in a Haystack

On Tuesday, October 7, 2014, the Ninth Circuit Court of Appeals decision overturning Nevada's and Idaho's same sex marriage bans came down. On Wednesday, Idaho officials brought an emergency petition to Justice Kennedy seeking a stay of the implementation of such marriages in the state, based on a claim that their appeal would be narrower than other such appeals that the Supreme Court had denied certiorari in. Instead, they claimed, Idaho would be focusing on the level of "scrutiny" that should be applied to equal protection and due process claims under the Fourteenth Amendment. Different Circuit courts have applied different levels of scrutiny, from the lowest, "rational basis," through "heightened scrutiny," as the Ninth Circuit applied, to the highest and most difficult for a law to survive, "strict scrutiny."

Justice Kennedy granted a temporary stay and ordered the Idaho plaintiffs to respond to the state's petition by end of business on Thursday. They responded:

If a stay issues, the plaintiffs will continue to be denied the right to enter into or have recognized the most important relation in life; they will continue to lack critical legal protections for their families, such as spousal-visitation and medical-decision-making rights in hospitals, that different-sex couples have long enjoyed; and their children will continue to be deprived of the security of knowing that their parents' relationships are recognized by the state where they live.

On Friday, Idaho replied:

If the court wishes to signal that its recent denials of various marriage-related petitions was intended to finally and conclusively resolve the constitutionality of state laws defining marriage as a union of man and a woman, the court should deny Idaho's application.

Shortly thereafter, the Court issued this Order:

The application for stay presented to Justice Kennedy and by him referred to the Court is denied. The orders heretofore entered by Justice Kennedy are vacated.

Of course, it doesn't mean that the Court intended to finally and conclusively resolve the constitutionality of state laws defining marriage as a union of man and a woman but it probably does indicate that a majority of the Court does not think that the level of scrutiny applied to those laws is a significant issue or, in other words, that such laws fail all three tests.

Another nail in the coffin of bigotry.