SAN FRANCISCO, California -- The Ninth Circuit Court of Appeal on Tuesday turned down Idaho's request to have its gay marriage appeal heard by the full appellate court.
Instead, the usual three-judge panel will hear oral arguments.
The appellate court rejected the request by Idaho Gov. C.L. "Butch" Otter and Christopher Rich, Recorder of Ada County Idaho, who are defending the state's ban on gay marriage. That ban was ruled unconstitutional on May 13 by U.S. District Magistrate Judge Candy Dale, and she refused to issue a stay pending appeal. But the Ninth Circuit granted the state's motion for a stay on May 20, just before gay and lesbian couples were to be allowed to marry.
The Ninth Circuit notified the parties that it would expediate the appeals case, and oral hearings are scheduled next month.
Idaho faces an uphill battle with the Ninth Circuit, which leans liberal. It is the Ninth Circuit that determined that "heightened scrutiny" will be applied to cases involving sexual orientation and gender identity, setting an important precedence for lawsuits coming under its jurisdiction from the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington state.
The "heightened scrutiny" ruling came out of the SmithKline Beecham v. Abbott Laboratories case. Attorneys for Abbott removed a person from the jury pool because he is gay and because the case involved a dispute involving HIV drugs. A three-judge panel from the Ninth Circuit ruled that the removal, because the potential juror was gay, was wrong and that heightened scrutiny applied because of the U.S. Supreme Court ruling in United States v. Windsor that struck down a key part of the Defense of Marriage Act.
Because of the "heightened scrutiny" ruling, lawyers representing Idaho will have an extremely difficult task of proving that the state's ban on gay marriage is not harmful to a minority. Most legal experts predict that the Ninth Circuit will uphold Judge Dale's ruling and that Idaho will then appeal to the U.S. Supreme Court.
If that happens, the nation's high court would have gay marriage cases out of Idaho, Oklahoma, Utah and Virginia.