Though gay marriage becomes legal today in 30 states, Idaho still awaits decision

BOISE – With Idaho’s same-sex marriage case still pending at the 9th Circuit Court of Appeals, attorneys in the case were surprised today that the U.S. Supreme Court denied seven petitions from five states seeking a high court decision on the matter. The Supreme Court’s rejection of appeals from Utah, Indiana, Oklahoma, Virginia and Wisconsin clears the way for gay couples to legally marry in those states – plus in six other states that are in the same circuits. Those six states are Wyoming, Colorado, Kansas, North Carolina, South Carolina and West Virginia. That makes same-sex marriage legal in 30 states and the District of Columbia; it’s already legal in Washington. “I think everyone has been very eager for the Supreme Court to take the issue up,” said Deborah Ferguson, attorney for four Idaho lesbian couples who sued to overturn Idaho’s ban on same-sex marriage. “It’s unprecedented, as far as I know, to have both sides to a petition for cert in seven different cases dealing with the same topic saying, ‘Yes, we all agree, we want you to take the case.’” More typically, whichever side has won the case at the appellate court level doesn’t want it going up to the Supreme Court – it wants its favorable ruling to stand. But on this issue, all sides have pushed for a high court ruling to settle the matter nationwide. “Cert” refers to a petition for certiorari – the formal process for the nation’s highest court to decide to take an appeal from a lower appellate court. Carl Tobias, a law professor at the University of Richmond who’s been following the same-sex marriage cases, said today’s decision means “it is just a matter of time until the United States has same-sex marriage.” Already, it’s now legal in a majority of states. So far, every circuit that’s finalized review of a state ban on same-sex marriage has overturned the ban as unconstitutional. If there were a split between circuits, the Supreme Court would be the only one that could resolve the difference. “Perhaps what the Supreme Court is signaling is that they’re really looking for a split in the circuits,” Ferguson said. Among the circuits with cases still pending are the 6th Circuit, where oral arguments took place in early August; the 9th Circuit, which includes Idaho and in which oral arguments took place in early September; and the 5th Circuit, where oral arguments haven’t yet been set. There’s been some speculation that the 6th or 5th circuit’s judges might uphold a state ban. But if not, same-sex marriage could become legal nationwide without the Supreme Court ever directly weighing in – it could continue to deny appeals, letting circuit court decisions stand. Idaho Gov. Butch Otter and Attorney General Lawrence Wasden have vowed to appeal Idaho’s case all the way to the U.S. Supreme Court if they lose at the 9th Circuit. After U.S. Magistrate Judge Candy Dale overturned Idaho’s ban as unconstitutional in May, they sought a stay from the 9th Circuit to keep the decision from taking effect while they appealed it. Ferguson said, “We’re still waiting for the decision.” If it’s in her clients’ favor, Ferguson said, Dale’s ruling would take effect, unless the state sought another stay and appealed to the U.S. Supreme Court. “If it went up on a petition for cert, we’re prepared to respond to it promptly,” she said. “And then the Supreme Court could either deny it like it has these other seven petitions, or … there’s still the possibility it could be heard by the Supreme Court.” Tobias said his reading of the high court suggests the eventual outcome will be the same either way. “They may take a case that upholds the ban,” he said, “but I think they will reverse it.”