Latta v. Otter, s. 14–35420

• Citation: 779 F.3d 902 (Mem)
• Decision Date: 09 January 2015
• Docket Number: 14–35421,Nos. 14–35420,12–17668.,s. 14–35420
• Parties: Susan LATTA; Traci Ehlers; Lori Watsen; Sharene Watsen; Shelia Robertson; Andrea Altmayer; Amber Beierle; Rachael Robertson, Plaintiffs–Appellees, v. C.L. OTTER, “Butch”; Governor of the State of Idaho, in his official capacity, Defendant–Appellant, and Christopher Rich, Recorder of Ada County, Idaho, in his official capacity, Defendant, State of Idaho, Intervenor–Defendant. Susan Latta; Traci Ehlers; Lori Watsen; Sharene Watsen; Shelia Robertson; Andrea Altmayer; Amber Beierle; Rachael Robertson, Plaintiffs–Appellees, v. C.L. Otter, “Butch”; Governor of the State of Idaho, in his official capacity, Defendant, and Christopher Rich, Recorder of Ada County, Idaho, in his official capacity, Defendant–Appellant, State of Idaho, Intervenor–Defendant–Appellant. Beverly Sevcik; Mary Baranovich; Antioco Carrillo; Theodore Small ; Karen Goody ; Karen Vibe; Fletcher Whitwell; Greg Flamer; Mikyla Miller; Katrina Miller; Adele Terranova; Tara Newberry; Caren Cafferata–Jenkins; Farrell Cafferra–Jenkins; Megan Lanz; Sara Geiger, Plaintiffs–Appellants, v. Brian Sandoval, in his official capacity as Governor of the State of Nevada; Diana Alba, in her official capacity as the County Clerk and Commissioner of Civil Marriages for Clark County, Nevada; Amy Harvey, in her official capacity as the County Clerk and Commissioner of Civil Marriages for Washoe County, Nevada; Alan Glover, in his official capacity as the Clerk Recorder for Carson City, Nevada, Defendants–Appellees, and Coalition for the Protection of Marriage, Intervenor–Defendant–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

779 F.3d 902 (Mem)

Susan LATTA;

Traci Ehlers;

Lori Watsen;

Sharene Watsen;

Shelia Robertson;

Andrea Altmayer;

Amber Beierle;

Rachael Robertson, Plaintiffs–Appellees
v.
C.L. OTTER, “Butch”;

Governor of the State of Idaho, in his official capacity, Defendant–Appellant
and
Christopher Rich, Recorder of Ada County, Idaho, in his official capacity, Defendant
State of Idaho, Intervenor–Defendant.

Susan Latta;

Traci Ehlers;

Lori Watsen;

Sharene Watsen;

Shelia Robertson;

Andrea Altmayer;

Amber Beierle;

Rachael Robertson, Plaintiffs–Appellees
v.
C.L. Otter, “Butch”;

Governor of the State of Idaho, in his official capacity, Defendant
and
Christopher Rich, Recorder of Ada County, Idaho, in his official capacity, Defendant–Appellant
State of Idaho, Intervenor–Defendant–Appellant.

Beverly Sevcik;

Mary Baranovich;

Antioco Carrillo;

Theodore Small ;

Karen Goody ;

Karen Vibe;

Fletcher Whitwell;

Greg Flamer;

Mikyla Miller;

Katrina Miller;

Adele Terranova;

Tara Newberry;

Caren Cafferata–Jenkins;

Farrell Cafferra–Jenkins;

Megan Lanz;

Sara Geiger, Plaintiffs–Appellants
v.
Brian Sandoval, in his official capacity as Governor of the State of Nevada;

Diana Alba, in her official capacity as the County Clerk and Commissioner of Civil Marriages for Clark County, Nevada;

Amy Harvey, in her official capacity as the County Clerk and Commissioner of Civil Marriages for Washoe County, Nevada;

Alan Glover, in his official capacity as the Clerk Recorder for Carson City, Nevada, Defendants–Appellees
and
Coalition for the Protection of Marriage, Intervenor–Defendant–Appellee.

Nos. 14–35420
14–35421
12–17668.

United States Court of Appeals, Ninth Circuit.

Jan. 9, 2015.

Craig H. Durham, Durham Law Office, PLLC, Boise, ID, Shannon Price Minter, Esquire, Legal Director, Christopher Stoll, San Francisco, CA, for Plaintiffs–Appellees.

Daniel W. Bower, Stewart Taylor & Morris, PLLC, Cally Younger, Idaho Governor's Office of Species Conservation, Thomas C. Perry, General Counsel, Counsel to the Governor State Capital, Boise, ID, Gene C. Schaerr, Winston & Strawn LLP, Washington, DC, for Defendant–Appellant.

Clay R. Smith, Assistant Attorney General, W. Scott Zanzig, Boise, ID, for Defendant/Intervenor–Defendant.

Tara L. Borelli, Lambda Legal Defense and Education Fund, Inc., Atlanta, GA, Marek P. Bute, Esquire, Kelly Harrison Dove, Esquire, Snell & Wilmer LLP, Las Vegas, NV, Carla Christofferson, Melanie Cristol, Dawn Sestito, Dimitri Portnoi, O'Melveny & Myers LLP, Jon Davidson, Peter C. Renn, Lambda Legal Defense and Education Fund, Los Angeles, CA, for Plaintiffs–Appellants.

Charles Wayne Howle, Esquire, Solicitor General, Nevada Office of the Attorney General, Randal Richard Munn, Joseph Leo Ward, Jr., Esquire, Senior Deputy District, Carson City District Attorney's Office, Carson City, NV, Matthew Joseph Christian, Esquire, Kolesar & Leatham, Las Vegas, NV, Herbert Kaplan, Deputy District, Reno, NV, for Defendants–Appellees.

David Chris Albright, Esquire, Albright, Stoddard, Warnick & Albright, Las Vegas, NV, Daniel W. Bower, Monte N. Stewart, Craig G. Taylor, Stewart Taylor & Morris, PLLC, Boise, ID, for Intervenor–Defendant–Appellee.

D.C. No. 1:13–cv–00482–CWD, District of Idaho, Boise.

D.C. No. 2:12–cv–00578–RCJ–PAL, District of Nevada, Las Vegas.

Before: REINHARDT, GOULD, and BERZON, Circuit Judges.

Order; Dissent by Judge O'SCANNLAIN.

ORDER

The panel has voted to deny the petitions for rehearing en banc.

The full court was advised of the petitions for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc reconsideration. Fed. R.App. P. 35.

The petitions for rehearing en banc are DENIED .

O'SCANNLAIN, Circuit Judge, joined by RAWLINSON and BEA, Circuit Judges, dissenting from the denial of rehearing en banc:

One month after the panel in these cases struck down the traditional marriage laws of Idaho and Nevada, the Sixth Circuit upheld the essentially identical laws of Michigan, Ohio, Tennessee, and Kentucky. See DeBoer v. Snyder, 772 F.3d 388 (6th Cir.2014). Clearly the same-sex marriage debate is not over. Indeed, not only does the debate now divide the federal circuit courts and state legislatures, but it continues to divide the American public.¹ And,

779 F.3d 904

of course, the Supreme Court has not yet decided the issue, notwithstanding innuendo in the panel's opinion.²

Thoughtful, dedicated jurists who strive to reach the correct outcome—including my colleagues on the panel here—have considered this issue and arrived at contrary results. This makes clear that—regardless of one's opinion on the merits of the politically charged and controversial issues raised by these cases—we are presented with a “question of exceptional importance” that should have been reviewed by an en banc panel. See F.R.A.P. 35(a). Indeed, if for no other reason, we should have reheard these cases in order to consider the arguments of our colleagues on the Sixth Circuit, who, reviewing the same question raised here, arrived at the opposite result. See DeBoer, 772 F.3d 388. Whether my colleagues agree or disagree with the DeBoer majority, at the very least, the panel should have granted rehearing to address the points raised in that opinion. Instead, we have utterly ignored another circuit's reasoned contribution to the debate. Such a clear circuit split on such an exceptionally important issue demands en banc review.³

Because the panel opinion neglects to address the issues raised in the conflicting Sixth Circuit opinion, and 1) overlooks binding Supreme Court precedent, 2) fails to respect bedrock principles of democratic self-governance, and 3) ignores the adverse implications of its opinion on our federal structure, I must respectfully dissent from our decision not to rehear these cases en banc.

I

Even if the exceptional importance of the issues and the circuit split were somehow insufficient to warrant our rehearing these cases en banc, we still should have concluded rehearing was merited. The

779 F.3d 905

panel fails to follow the Supreme Court's precedential command that federal courts must avoid substituting their own definition of marriage for that adopted by the states' citizenry. By refusing to rectify this error, we let stand an impermissible judicial intrusion into a debate reserved to the states' political processes.

A

For decades, our nation has engaged in an “earnest and profound debate” on marriage policy. See Washington v. Glucksberg, 521 U.S. 702, 735, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (praising the American public's on-going conversation on the “morality, legality, and practicality of physician-assisted suicide” and ultimately declining to interfere); see also Hollingsworth v. Perry, ––– U.S. ––––, 133 S.Ct. 2652, 2659, 186 L.Ed.2d 768 (2013) (“The public is currently engaged in an active political debate over whether same-sex couples should be allowed to marry.”). State by state, citizens have considered the issue of same-sex marriage and, through legislation, popular referendum, or constitutional amendment, voiced their views on this question of immense public importance.⁴

Until quite recently, the judiciary has allowed this earnest democratic debate to continue unobstructed. Forty-two years ago, the Supreme Court dismissed an appeal from a Minnesota Supreme Court decision, Baker v. Nelson, which held that “[t]he equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state's classification of persons authorized to marry.” 291 Minn. 310, 191 N.W.2d 185, 187 (1971) (emphasis added). Dismissing the plaintiffs' appeal “for want of a substantial federal question,” 409 U.S. at 810, 93 S.Ct. 37 (emphasis added), the Baker Court confirmed that the Constitution commits questions of marriage policy to the citizens of each state, and that absent exceptional circumstances, federal courts should resist the temptation to interfere with a state marriage regulation.

This is not to say that a state's “powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment.” Loving v. Virginia, 388 U.S. 1, 7, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). There are clearly exceptional circumstances in which judicial interference is needed—no more so than when a husband and wife face criminal sanctions merely for marrying when they happen to be of different races. See id.

But while “invidious racial discriminations” warranted judicial action in Loving v. Virginia, no such discrimination is implicated here.⁵ Indeed, to argue that Loving controls here requires asserting that the Supreme Court forgot about Loving only five years later when it decided Baker. If the panel had any lingering doubts as to whether judicial interference is appropriate, Baker makes clear that it is not.

B

Loving holds that “restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause” and that the “Fourteenth Amendment requires that the freedom of choice to marry not be restricted

779 F.3d 906...