No.

14A374

In the Supreme Court of the United States


C.L. Butch Otter, in his official capacity as Governor of Idaho; Christopher Rich, in
his official capacity of Recorder of Ada County, Idaho; and the State of Idaho,
Applicants,
v.

Susan Latta, Traci Ehlers, Lori Watsen, Sharene Watsen, Shelia Robertson, Andrea
Altmayer, Amber Beierle, and Rachael Robertson,
Respondents.


RESPONDENTS OPPOSITION TO EMERGENCY APPLICATION OF GOVERNOR
C.L. BUTCH OTTER, ET AL. TO STAY MANDATE PENDING DISPOSITION OF
APPLICATIONS FOR STAY PENDING REHEARING AND CERTIORARI


DEBORAH A. FERGUSON
Counsel of Record
FERGUSON DURHAM, PLLC
202 N. 9th Street, Suite 401 C
Boise, Idaho 83702
Telephone: 208.484.2253
[email protected]

CRAIG HARRISON DURHAM
FERGUSON DURHAM, PLLC
910 W. Main Street, Suite 328
Boise, Idaho 83702

SHANNON P. MINTER
DAVID C. CODELL
CHRISTOPHER F. STOLL
NATIONAL CENTER FOR LESBIAN RIGHTS
870 Market Street, Suite 370
San Francisco, California 94102
DEANNE E. MAYNARD
JOSEPH R. PALMORE
MARC A. HEARRON
MORRISON & FOERSTER LLP
2000 Pennsylvania Avenue, N.W.
Washington, D.C. 20006

RUTH N. BORENSTEIN
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105







Counsel for Respondents

OCTOBER 9, 2014

TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................... ii
INTRODUCTION .......................................................................................................... 1
BACKGROUND ............................................................................................................. 3
REASONS THE STAY SHOULD BE DENIED ........................................................... 9
I. This Court Is Unlikely To Grant Review In This Case ..................................... 9
II. Even If Review Were Granted, Applicants Would Not Likely Prevail ........... 13
III. Applicants Will Not Suffer Irreparable Harm In The Absence Of A
Stay .................................................................................................................... 18
IV. The Balance Of Harms Weighs Strongly Against A Stay ............................... 20
CONCLUSION ............................................................................................................. 21




TABLE OF AUTHORITIES
Page(s)
CASES
Baker v. Nelson,
409 U.S. 810 (1972) ............................................................................................ 5, 16
Barnes v. E-Systems, Inc. Grp. Hosp. Med. & Surgical Ins. Plan,
501 U.S. 1301 (1991) (Scalia, J., in chambers) ................................................ 19, 20
Baskin v. Bogan,
--- F.3d ---, Nos. 14-2386, 14-2387, 14-2388, 14-2526, 2014 U.S. App.
LEXIS 17294 (7th Cir. Sept. 4, 2014), cert. denied, Nos. 14-277, 14-278
(U.S. Oct. 6, 2014) ................................................................................................... 10
Bishop v. Smith,
760 F.3d 1070 (10th Cir. 2014) .............................................................................. 12
Black v. Cutter Labs.,
351 U.S. 292 (1956) ................................................................................................ 11
Bostic v. Schaefer,
760 F.3d 352 (4th Cir.), cert. denied, Nos. 14-153, 14-225 ................. 10, 12, 15, 16
California v. Rooney,
483 U.S. 307 (1987) ................................................................................................ 11
Christian Legal Socy v. Martinez,
130 S. Ct. 2971 (2010) ............................................................................................ 16
Citizens for Equal Protection v. Bruning,
455 F.3d 859 (8th Cir. 2006) ............................................................................ 11, 12
Conkright v. Frommert,
556 U.S. 1401 (2009) (Ginsburg, J., in chambers) ............................................ 9, 13
Cook v. Gates,
528 F.3d 42 (1st Cir. 2008) ..................................................................................... 12
Davis v. Prison Health Servs.,
679 F.3d 433 (6th Cir. 2012) .................................................................................. 12
Edelman v. Jordan,
415 U.S. 651 (1974) ................................................................................................ 17
ii

Frontiero v. Richardson,
411 U.S. 677 (1973) .......................................................................................... 14, 15
Hicks v. Miranda,
422 U.S. 332 (1975) ............................................................................................ 6, 17
In re Adoption of Doe,
326 P.3d 347 (Idaho 2014) ........................................................................................ 8
Johnson v. Johnson,
385 F.3d 503 (5th Cir. 2004) .................................................................................. 12
Kitchen v. Herbert,
755 F.3d 1193 (10th Cir.), cert. denied, Nos. 14-124, 14-136 (U.S. Oct. 6,
2014) ...................................................................................................... 10, 12, 15, 16
Latta v. Otter,
No. 1:13-cv-00482-CWD, 2014 U.S. Dist. LEXIS 66417 (D. Idaho May 13,
2014) ...................................................................................................................... 4, 5
Lawrence v. Texas,
539 U.S. 558 (2003) ................................................................................................. 6,
Lofton v. Secretary of Dept of Children & Family Servs.,
358 F.3d 804 (11th Cir. 2004) ................................................................................ 12
Loving v. Virginia,
388 U.S. 1 (1967) .................................................................................................... 14
Lucas v. Townsend,
486 U.S. 1301 (1988) (Kennedy, J., in chambers) ............................................... 1, 2
Mandel v. Bradley,
432 U.S. 173 (1977) (per curiam) ............................................................................. 6
Maryland v. King,
133 S. Ct. 1 (2012) .................................................................................................. 18
New Motor Vehicle Bd. v. Orrin W. Fox Co.,
434 U.S. 1345 (1977) (Rehnquist, J., in chambers) ............................................... 18
Padula v. Webster,
822 F.2d 97 (D.C. Cir. 1987) .................................................................................. 12
Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott,
134 S. Ct. 506 (2013) (Scalia, J., concurring in denial of application to
vacate stay) ............................................................................................................. 18
iii

Price-Cornelison v. Brooks,
524 F.3d 1103 (10th Cir. 2008) .............................................................................. 12
Romer v. Evans,
517 U.S. 620 (1996) .................................................................................................. 6
Rostker v. Goldberg,
448 U.S. 1306 (1980) (Brennan, J., in chambers) ................................................. 21
Rubin v. United States,
524 U.S. 1301 (1998) .............................................................................................. 18
Sampson v. Murray,
415 U.S. 61 (1974) .................................................................................................. 19
SmithKline Beecham Corp. v. Abbott Laboratories,
740 F.3d 471 (9th Cir. 2014) .......................................................................... 5, 6, 11
Thomasson v. Perry,
80 F.3d 915 (4th Cir. 1996) .................................................................................... 12
United States v. Windsor,
133 S. Ct. 2675 (2013) ..................................................................................... passim
Woodward v. United States,
871 F.2d 1068 (Fed. Cir. 1989) ............................................................................... 12
Zablocki v. Redhail,
434 U.S. 374 (1978) ............................................................................................ 2, 20
STATUTES
42 U.S.C. 1983 ............................................................................................................. 4
1995 Idaho Sess. Laws ch. 104, 3 (effective Jan. 1, 1996) ......................................... 3
1996 Idaho Sess. Laws ch. 331, 1 ............................................................................... 3
Idaho Code 32-201 ....................................................................................................... 3
Idaho Code 32-209 ....................................................................................................... 3
OTHER AUTHORITIES
H.R. Rep. No. 104-664 (1996) ...................................................................................... 16
Idaho Const. art. III, 28 .............................................................................................. 3
iv

INTRODUCTION
Applicants cannot meet the high standard for the extraordinary relief they
seek. The judgment below is in accord with that of every court of appeals that has
decided, following this Courts decision in United States v. Windsor, 133 S. Ct. 2675
(2013), whether a States prohibition on marriage by same-sex couples and its
refusal to recognize such marriages validly performed elsewhere violate the Equal
Protection Clause of the Fourteenth Amendment.
Applicants cannot establish[] that four Members of the Court will consider
the issue sufficiently meritorious to grant certiorari. Lucas v. Townsend, 486 U.S.
1301, 1304 (1988) (Kennedy, J., in chambers). On Monday of this week, the Court
denied seven petitions for writs of certiorari seeking review of judgments from three
courts of appeals that together held that five States prohibitions on marriages by
same-sex couples violate those couples Fourteenth Amendment rights. Absent any
intervening development, there is no reason to believe that applicants
contemplated petition for a writ of certiorariwhich, absent such a development,
respondents plan to opposewill meet any different fate.
Applicants likewise cannot establish that, even if certiorari were granted,
there would be a fair prospect that five Justices will conclude that the case was
erroneously decided below. Lucas, 486 U.S. at 1304. Every court of appeals to
have addressed the question presented after Windsor has reviewed this Courts
precedents and reached the same result as the Ninth Circuit. Applicants fail to
demonstrate that the remarkable unanimity among the courts of appeals is
incorrect.


Nor does applicants invocation of an abstract affront to the sovereignty of
the State (Application at 19) amount to the required showing of irreparable injury.
Cf. Lucas, 486 U.S. at 1304. Even were such an asserted harm to the State
cognizable, it would be decidedly outweighed by the harm to the respondent same-
sex couples from the grant of a stay. See ibid. If a stay issues, respondents will
continue to be denied the right to enter into or have recognized the most important
relation in life, Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (internal quotation
marks omitted); 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.
A stay would visit all those harms on respondents, notwithstanding that this
Courts denials of certiorari petitions earlier in the week had the effect of allowing
enforcement of judgments freeing similarly situated same-sex couples and their
children from such harms in other States. Applicants point to nothing that would
justify issuance of a stay in this case only days after the Court denied every other
certiorari petition presenting the same claim, thus dissolving all stays in every
other court of appeals and allowing the judgments of those courts to take effect.
There is no relevant difference between this case and those that would warrant any
different outcome here.
The application should be denied.
2

BACKGROUND
1. In 1996, the Idaho legislature amended Idaho Code 32-201 to
expressly limit marriage to different-sex couples. 1995 Idaho Sess. Laws ch. 104,
3 (effective Jan. 1, 1996). The legislature also amended Idaho Code 32-209 to
create the first express, categorical exception to Idahos longstanding tradition of
recognizing lawful marriages from other jurisdictions. 1996 Idaho Sess. Laws ch.
331, 1. The amendment carved out an exception for marriages that violate the
public policy of this state, which are defined to include same-sex marriages, and
marriages entered into under the laws of another state or country with the intent to
evade the prohibitions of the marriage laws of this state. Idaho Code 32-209. In
2006, the Idaho Constitution was amended to provide that [a] marriage between a
man and a woman is the only domestic legal union that shall be valid or recognized
in this state. Idaho Const. art. III, 28.
2. Respondents are Andrea Altmayer & Shelia Robertson and Amber
Beierle & Rachael Robertson, two committed same-sex couples who wish to be
married in their home state of Idaho, as well as Susan Latta & Traci Ehlers and
Lori Watsen & Sharene Watsen, two same-sex couples married outside of Idaho but
whom Idaho refuses to recognize as married. Respondents include a public-school
teacher of the deaf, a small-business owner, and an Iraq War veteran. They have
formed families, contributed to their professions and communities, and chosen
Idaho as their home. Lori Watsen & Sharene Watsen and Andrea Altmayer &
Shelia Robertson are parents, and Susan Latta & Traci Ehlers are grandparents.
As the court of appeals observed, [l]ike all human beings, [respondents] lives are
3

given greater meaning by their intimate, loving, committed relationships with their
partners and children. C.A. Slip Op. at 11-12.
Yet because they are of the same sex, and for no other reason, Idaho law bars
respondents from marrying or from having their out-of-state marriages recognized.
The common vocabulary of family life and belonging that others may take for
granted is * * * denied to themas are all of the concrete legal rights,
responsibilities, and financial benefits afforded opposite-sex married couples by
state and federal lawmerely because of their sexual orientation. Id. at 12
(alterations, footnote, and internal quotation marks omitted).
3. Respondents filed suit under 42 U.S.C. 1983, alleging that Idahos
statutory and constitutional marriage ban and anti-recognition laws violate the Due
Process and Equal Protection Clauses of the Fourteenth Amendment. The district
court granted respondents motion for summary judgment and denied applicants
motion to dismiss and motion for summary judgment. Latta v. Otter, No. 1:13-cv-
00482-CWD, 2014 U.S. Dist. LEXIS 66417 (D. Idaho May 13, 2014).
The district court concluded that Idahos laws discriminate on the basis of
sexual orientation and deprive respondents of equal protection of the laws. Id. at
*41-82. The district court also ruled that the freedom to marry the person of ones
choice is a fundamental liberty interest guaranteed by the Due Process Clause of
the Fourteenth Amendment, and that the challenged laws impermissibly deprive
respondents of that right. Id. at *28-41.
4

The district court found that [e]ach of these laws unambiguously expresses a
singular purposeto exclude same-sex couples from civil marriage in Idaho. Id. at
*55. It concluded that the laws fail under a heightened level of scrutiny, as
required by the court of appeals holding in SmithKline Beecham Corp. v. Abbott
Laboratories, 740 F.3d 471, 484 (9th Cir. 2014), and, in the alternative, under the
less-stringent rational-basis standard. Id. at *22, *81. The district court analyzed
each of applicants stated rationales, including promoting child welfare, focusing
resources on couples with biological procreative capacity, federalism, and
accommodating religious concerns. The court concluded that none of those interests
saved the laws from constitutional infirmity. Id. at *41-82.
The district court permanently enjoined enforcement of all Idaho laws and
regulations to the extent they do not recognize same-sex marriages validly
contracted outside Idaho or prohibit otherwise qualified same-sex couples from
marrying in Idaho. Id. at *84. The injunction was stayed pending appeal.
4. The court of appeals unanimously affirmed the district court. The
court of appeals held that the Idaho laws at issue violate the Equal Protection
Clause of the Fourteenth Amendment because they deny lesbians and gay men
who wish to marry persons of the same sex a right they afford to individuals who
wish to marry persons of the opposite sex and do not survive heightened scrutiny.
C.A. Slip Op. at 6.
The court of appeals rejected applicants argument that this Courts summary
dismissal for want of a substantial federal question in Baker v. Nelson, 409 U.S.
5

810, 810 (1972), dictated a result in their favor. C.A. Slip Op. at 9. The court of
appeals explained that [s]uch summary dismissals prevent lower courts from
coming to opposite conclusions on the precise issues presented and necessarily
decided by those actions, id. at 10 (quoting Mandel v. Bradley, 432 U.S. 173, 176
(1977) (per curiam)), but only until doctrinal developments indicate otherwise,
ibid. (quoting Hicks v. Miranda, 422 U.S. 332, 343-344 (1975)). The court reasoned
that subsequent decisions make clear that the claims before us present substantial
federal questions. Id. at 10-11 (citing Windsor, 133 S. Ct. at 2694-2696; Lawrence
v. Texas, 539 U.S. 558, 578-579 (2003); Romer v. Evans, 517 U.S. 620, 631-634
(1996)). The court of appeals also noted that other circuits uniformly agreed with
this conclusion. Id. at 11.
Based on circuit precedent, the court of appeals applied a heightened level of
scrutiny because the Idaho laws at issue discriminate on the basis of sexual
orientation. Id. at 13-15 (citing SmithKline, 740 F.3d at 474). The court of appeals
rejected applicants argument that heightened-scrutiny review was inappropriate on
the asserted ground that the Idaho laws discriminate on the basis of procreative
capacity rather than sexual orientation. Id. at 13. The court explained that the
laws at issue distinguish on their face between opposite-sex couples, who are
permitted to marry and whose out-of-state marriages are recognized, and same-sex
couples, who are not permitted to marry and whose marriages are not recognized.
Ibid.
6

The court of appeals likewise rejected applicants proffered justification for
Idahos discrimination, namely, that the laws in question promote child welfare by
encouraging optimal parenting. Id. at 15. The court of appeals was unpersuaded
by applicants argument that permitting and recognizing only different-sex
marriages ensures that as many children as possible are reared by their married
biological mothers and fathers. Idaho gives marriage licenses to many opposite-sex
couples who cannot or will not reproduce * * * but not to same-sex couples who
already have children or are in the process of having or adopting them. Id. at 23-
24. In denying marriage benefits to people who already have children, Idaho
materially harm[s] and demean[s] same-sex couples and their children by
[d]enying children resources and stigmatizing their families. Id. at 25. Moreover,
the court of appeals recognized that there are more-tailored, non-discriminatory
ways of achieving applicants purported goal other than Idahos grossly over- and
under-inclusive method. Id. at 23.
The court of appeals also rejected applicants argument that the State
constitutionally may use discriminatory laws to send its citizens a message that
the ideal form of parenting is having children reared by parents of different sexes.
Id. at 33. The court reasoned that Windsor makes clear that the defendants
explicit desire to express a preference for opposite-sex couples over same-sex couples
is a categorically inadequate justification for discrimination. Id. at 26. Moreover,
the fact that Idaho allows adoption by same-sex couples makes clear that
applicants purported justification is simply an ill-reasoned excuse for
7

unconstitutional discrimination. Id. at 27. Indeed, the Idaho Supreme Court has
determined that sexual orientation [is] wholly irrelevant to a persons fitness or
ability to adopt children. Ibid. (alteration in original) (quoting In re Adoption of
Doe, 326 P.3d 347, 353 (Idaho 2014)). Idaho laws allow same-sex couples to adopt
children but then unconstitutionally label their families as second-class because
the adoptive parents are of the same sex. Id. at 28.
The court of appeals also rejected two additional arguments. First, the court
found unconvincing applicants assertion that each State may, through the
democratic process, regulate marriage as it sees fit. As Windsor itself made clear,
state laws defining and regulating marriage, of course, must respect the
constitutional rights of persons. Id. at 29 (quoting Windsor, 133 S. Ct. at 2691).
Second, the court of appeals rejected applicants argument that allowing marriage
by same-sex couples would threaten religious liberties. The court explained that
whether religious institutions and small businesses must recognize the marriages of
same-sex couples are questions that were not before the court. Id. at 30.
The court of appeals issued its mandate the same day it issued its opinion,
October 7, 2014. The next morning, October 8, applicants filed in the court of
appeals emergency motions to recall the mandate and for a stay pending disposition
of a petition for rehearing and rehearing en banc.
5. On October 8, applicants also filed an emergency application in this
Court for a stay of the mandate pending (1) disposition of applicants pending
motions in the court of appeals and (2) if necessary, disposition of applicants
8

apparently forthcoming full application in this Court for a stay pending
disposition of a petition for a writ of certiorari. Application at 1. Justice Kennedy
ordered that the mandate be stayed pending further order and directing that a
response to the application be filed on or before October 9, 2014, by 5:00 p.m.
6. Subsequently, on October 8, the court of appeals issued an order
directing that the mandate be recalled pending further order of this Court or the
court of appeals.
REASONS THE STAY SHOULD BE DENIED
To warrant a stay of the mandate, an applicant must demonstrate (1) a
reasonable probability that four Justices will consider the issue sufficiently
meritorious to grant certiorari or to note probable jurisdiction; (2) a fair prospect
that a majority of the Court will conclude that the decision below was erroneous;
and (3) a likelihood that irreparable harm [will] result from the denial of a stay.
Conkright v. Frommert, 556 U.S. 1401, 1402 (2009) (Ginsburg, J., in chambers)
(internal quotation marks omitted). Justices considering such applications also
may balance the equitiesto explore the relative harms to applicant and
respondent, as well as the interests of the public at large. Ibid. Denial of such in-
chambers stay applications is the norm; relief is granted only in extraordinary
cases. Ibid. (internal quotation marks omitted).
I. This Court Is Unlikely To Grant Review In This Case
There is no reasonable probability that certiorari will be granted in this
case. Conkright, 556 U.S. at 1402. Just days ago, this Court denied seven petitions
for writs of certiorari presenting the same question that would be presented here:
9

whether States may, consistent with the Constitution, preclude same-sex couples
from marrying and refuse to recognize same-sex couples marriages lawfully entered
into in other States.
1
In each petition, the parties were well represented, and the
respondents acquiesced in this Courts review. Those petitions presented suitable
vehicles for this Court to decide the constitutional questions, but none of those
petitions attracted the votes of four Justices. There is no reasonable probability
that a petition in this case would fare any differently.
Indeed, since this Courts decision in Windsor, there is no conflict among the
courts of appeals on the unconstitutionality of state laws barring marriage by same-
sex couples. With striking uniformity, the Fourth, Seventh, and Tenth Circuits
have ruled that the Fourteenth Amendment prohibits States from enacting such
laws. Bostic v. Schaefer, 760 F.3d 352 (4th Cir.), cert. denied, Nos. 14-153, 14-225,
14-251 (U.S. Oct. 6, 2014); Baskin v. Bogan, --- F.3d ---, Nos. 14-2386, 14-2387,
14-2388, 14-2526, 2014 U.S. App. LEXIS 17294 (7th Cir. Sept. 4, 2014), cert. denied,
Nos. 14-277, 14-278 (U.S. Oct. 6, 2014); Kitchen v. Herbert, 755 F.3d 1193 (10th
Cir.), cert. denied, Nos. 14-124, 14-136 (U.S. Oct. 6, 2014). The decision below
continues that unbroken line.
Applicants attempt to distinguish their potential certiorari petition from
those already denied is unavailing. Applicants argue that the courts of appeals are
divided on the subsidiary issue of the level of scrutiny applicable to laws that make
1
Herbert v. Kitchen, No. 14-124 (U.S. Oct. 6, 2014); Smith v. Bishop, No. 14-136 (U.S. Oct. 6,
2014); Rainey v. Bostic, No. 14-153 (U.S. Oct. 6, 2014); Schaefer v. Bostic, No. 14-225 (U.S. Oct. 6,
2014); McQuigg v. Bostic, No. 14-251 (U.S. Oct. 6, 2014); Bogan v. Baskin, No. 14-277 (U.S. Oct. 6,
2014); Walker v. Wolf, No. 14-278 (U.S. Oct. 6, 2014).
10


classifications among individuals based on their sexual orientation. Application at
9-10. This Court reviews judgments, not statements in opinions. California v.
Rooney, 483 U.S. 307, 311 (1987) (quoting Black v. Cutter Labs., 351 U.S. 292, 297
(1956)). As noted, no court of appeals since Windsor has held that state marriage
laws discriminating against same-sex couples withstand constitutional scrutinyno
matter the standard of review used.
In any event, the same subsidiary standard-of-review issue that applicants
claim is distinguishing was cited as a basis for review in the certiorari petitions
denied earlier this week.
2
The court of appeals ruling here thus does nothing to
alter the landscape that existed at the time this Court denied certiorari in the other
marriage cases. The court of appeals simply applied its governing precedent (C.A.
Slip Op. at 13-15 (applying SmithKline, 740 F.3d at 474))precedent that was cited
to this Court in the briefing of the petitions just denied.
3
Also not new is applicants
heavy reliance on the Eighth Circuits pre-Windsor decision in Citizens for Equal
Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006). Application at 10-11. Six of the
2
Brief for Respondents at 16-17, Herbert v. Kitchen, No. 14-124 (U.S. Aug. 28, 2014); Reply
Brief for Petitioners at 5-6 & n.1, Herbert v. Kitchen, No. 14-124 (U.S. Sept. 10, 2014); Petition for
Writ of Certiorari at 25-30, Rainey v. Bostic, No. 14-153 (U.S. Aug. 8, 2014); Response Brief of Bostic,
et al. at 26-27, Rainey v. Bostic, No. 14-153 (U.S. Aug. 27, 2014); Response Brief of Bostic, et al. at
26-28, Schaefer v. Bostic, No. 14-225 (U.S. Sept. 5, 2014); Response Brief of Bostic, et al. at 27-28,
McQuigg v. Bostic, No. 14-251 (U.S. Sept. 5, 2014).
3
Brief for Respondents at 17, Herbert v. Kitchen, No. 14-124 (U.S. Aug. 28, 2014); Brief for
Respondents at 27 & n.19, Smith v. Bishop, No. 14-136 (U.S. Aug. 27, 2014); Petition for Writ of
Certiorari at 9, 14, 16 n.14, 27, Rainey v. Bostic, No. 14-153 (U.S. Aug. 8, 2014); Response to Petition
for Writ of Certiorari at 7, Bogan v. Baskin, No. 14-277 (U.S. Sept. 9, 2014).
11


seven petitions denied on Monday asserted the same purported conflict with
Bruning.
4
Yet the Court decided not to grant review of any of those petitions.
Moreover, all nine of the decisions to which applicants point for rational-basis
scrutiny predate Windsor. Application at 10 & n.2.
5
All post-Windsor court of
appeals decisions (including by two courts that applicants count on their side of the
purported conflict) dealing with the constitutionality of state marriage bans have
applied heightened scrutinyreasoning either that gay men and lesbians are a
protected class or that marriage is a fundamental right. C.A. Slip Op. 13-15;
Kitchen, 755 F.3d at 1213; Bishop v. Smith, 760 F.3d 1070, 1079-1080 & n.4 (10th
Cir. 2014); Bostic, 760 F.3d at 377; Baskin, 2014 U.S. App. LEXIS 17294, at *19-23.
Three courts of appeals expressly cited Windsor s rationale as a reason to shift from
rational-basis review to heightened scrutiny. C.A. Slip Op. 13-15; Kitchen, 755 F.3d
at 1213; Bostic, 760 F.3d at 377. Given this post-Windsor uniformity, there is no
reasonable probability this Court will grant applicants planned petition on the
subsidiary level-of-deference question.
4
Petition for Writ of Certiorari at 3, 20, Herbert v. Kitchen, No. 14-124 (U.S. Aug. 5, 2014);
Petition for Writ of Certiorari at 10, 21, Smith v. Bishop, No. 14-136 (U.S. Aug. 6, 2014); Petition for
Writ of Certiorari at 21, Rainey v. Bostic, No. 14-153 (U.S. Aug. 8, 2014); Petition for Writ of
Certiorari at 13 & n.11, Schaefer v. Bostic, No. 14-225 (U.S. Aug. 22, 2014); Petition for Writ of
Certiorari at 17, McQuigg v. Bostic, No. 14-251 (U.S. Aug. 29, 2014); Petition for Writ of Certiorari at
7, Bogan v. Baskin, No. 14-277 (U.S. Sept. 9, 2014).
5
Cook v. Gates, 528 F.3d 42, 61-62 (1st Cir. 2008); Thomasson v. Perry, 80 F.3d 915, 927-928
(4th Cir. 1996); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Davis v. Prison Health Servs.,
679 F.3d 433, 438 (6th Cir. 2012); Bruning, 455 F.3d at 866-867; Price-Cornelison v. Brooks, 524 F.3d
1103, 1113 (10th Cir. 2008); Lofton v. Secretary of Dept of Children & Family Servs., 358 F.3d 804,
818 (11th Cir. 2004); Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987); Woodward v. United
States, 871 F.2d 1068, 1076 (Fed. Cir. 1989).
12


II. Even If Review Were Granted, Applicants Would Not Likely Prevail
Applicants likewise have failed to meet their burden of showing a fair
prospect that a majority of the Court would reverse the decision below, even if
review were granted. Conkright, 556 U.S. at 1402.
1. The court of appeals correctly held that, in excluding same-sex couples
from marriage, Idaho law denies them equal protection of the laws by
discriminating against them on the basis of their sexual orientation. [T]he
principal purpose and the necessary effect of Idahos marriage ban are to impose
inequality on same-sex couples. Windsor, 133 S. Ct. at 2694-2695. Because of their
inability to marry, these couples have their lives burdened, by reason of
government decree, in visible and public ways * * * from the mundane to the
profound. Id. at 2694. In addition to economic and other practical harms, the
marriage ban inflicts severe stigma and dignitary harms, demean[ing] the couple,
whose moral and sexual choices the Constitution protects, and humiliat[ing] * * *
children now being raised by same-sex couples. Ibid. The court of appeals
correctly concluded that this discriminatory treatment could not be justified on any
of the grounds offered by applicants; indeed, applicants relied solely on speculation
and conclusory assertions of little merit. C.A. Slip Op. at 33.
2. Applicants offer five reasons that the judgment below purportedly
would be reversed if the petition were granted. None is persuasive.
a. Relying on Windsor, applicants argue that federalism concerns allow
each State to define marriage as it sees fit. Application at 11-13. But as the court
of appeals noted (C.A. Slip Op. at 29), Windsor emphasized that state laws defining
13

and regulating marriage, of course, must respect the constitutional rights of
persons. 133 S. Ct. at 2691 (citing Loving v. Virginia, 388 U.S. 1 (1967)). States
may regulate domestic relations, but only subject to those [constitutional]
guarantees. Ibid.; id. at 2692 (noting the States interest in defining and
regulating the marital relation, subject to constitutional guarantees (emphasis
added)). In Windsor, this Court discussed federalism principles in the context of the
federal governments failure to respect the state of New Yorks decision to permit
same-sex couples to marry. Id. at 2692-2693. Nothing in Windsor suggests that
federalism concerns trump the constitutional limitations on a States power to
regulate marriage. Were it otherwise, Loving might have been decided differently.
b. Applicants argue that the court of appeals incorrectly determined that
heightened scrutiny rather than rational-basis review applies. Application at 13-15.
Applicants fail to demonstrate that Idahos discriminatory laws could survive under
any standard of review. In any event, application of heightened scrutiny is correct,
for at least three reasons.
First, under the factors used by this Court to identify suspect classes, laws
that classify based on sexual orientation are constitutionally suspect. See, e.g.,
Frontiero v. Richardson, 411 U.S. 677, 684-687 (1973) (enumerating factors).
Among other reasons, such classifications are suspect because our Nation has a
long and unfortunate history of discrimination against lesbians and gay men;
sexual orientation is an immutable characteristic central to ones identity; and
ones sexual orientation bears no relation to ability to perform or contribute to
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society. Id. at 684, 686; see Baskin, 2014 U.S. App. LEXIS 17294, at *21-26.
Second, as the Fourth and Tenth Circuits have held, heightened scrutiny is
warranted because the state laws at issue severely interfere with a fundamental
right, the right to marry. Bostic, 760 F.3d at 375-377; Kitchen, 755 F.3d at 1208-
1218. Third, as explained in Judge Berzons concurring opinion below, state laws
excluding same-sex couples from marriage are classifications on the basis of
gender and warrant heightened scrutiny for that reason. C.A. Slip Op. at 1
(Berzon, J., concurring). No post-Windsor decision from a court of appeals disagrees
with application of heightened scrutiny to laws prohibiting marriage by same-sex
couples.
Nor does Windsor suggest that courts of appeals must apply highly
deferential rational basis review. Contra Application at 14. This Court in
Windsor emphasized that the Defense of Marriage Act (DOMA) require[d] careful
consideration. 133 S. Ct. at 2693. Rather than simply give deference to legislative
judgmentsa hallmark of rational-basis reviewthis Court held that DOMA was
unconstitutional because the principal purpose and the necessary effect of this law
are to demean those persons who are in a lawful marriage, and no legitimate
purpose overcomes the purpose and effect to disparage and to injure those persons.
Windsor, 133 S. Ct. at 2695-2696.
c. Applicants argue that the Idaho laws in question do not discriminate
based on sexual orientation (and thus should not be subjected to heightened
scrutiny) because they allow[] a gay man to marry a woman or a lesbian to marry a
15

man. Application at 15-16. This argument is as unsound as it is demeaning to
lesbians and gay men. Idahos laws allow individuals who are innately attracted to
members of a different sex to marry the person of their choosing. Gay men and
lesbians are forbidden from doing so. This Court previously has concluded that
laws that target same-sex couples discriminate based on sexual orientation. See
Windsor, 133 S. Ct. at 2693 (noting that DOMAs discrimination against married
same-sex couples reflects disapproval of homosexuality (quoting H.R. Rep. No.
104-664, at 16 (1996))); see also Lawrence, 539 U.S. at 575 (law criminalizing same-
sex intimacy targets homosexual persons); Christian Legal Socy v. Martinez, 130
S. Ct. 2971, 2990 (2010) (rule excluding individuals from group membership based
on same-sex intimacy discriminates on the basis of sexual orientation).
d. Applicants assert that the decision below impermissibly fails to follow
this Courts dismissal for want of a substantial federal question in Baker v. Nelson,
409 U.S. 810. This same argument also was presented in four of the recently denied
certiorari petitions.
6
Every court of appeals recently to have examined this question
has squarely rejected that argument. Kitchen, 755 F.3d at 1204-1208; Bostic, 760
F.3d at 372-375; Baskin, 2014 U.S. App. LEXIS 17294, at *34-35; C.A. Slip Op. at 9-
11. In the 40 years since Baker was decided, the decision has lost any precedential
force in light of the developments in this Courts jurisprudence, including Romer,
6
Petition for Writ of Certiorari at 4, 19, Herbert v. Kitchen, No. 14-124 (U.S. Aug. 5, 2014);
Petition for Writ of Certiorari at 10, 21, Smith v. Bishop, No. 14-136 (U.S. Aug. 6, 2014); Petition for
Writ of Certiorari at 29, Schaefer v. Bostic, No. 14-225 (U.S. Aug. 22, 2014); Petition for Writ of
Certiorari at 17, McQuigg v. Bostic, No. 14-251 (U.S. Aug. 29, 2014).
16


Lawrence, and culminating in Windsor. See Hicks, 422 U.S. at 344 (lower court not
bound by summary dismissal when doctrinal developments indicate otherwise
(internal quotation marks omitted)).
In any event, that summary dismissal is not binding on this Court. Edelman
v. Jordan, 415 U.S. 651, 671 (1974). Thus, even if certiorari ultimately were
granted in this case (despite its resemblance to cases in which this Court denied
petitions just days ago), Baker says nothing about whether this Court would affirm
the judgment below.
e. Finally, applicants suggest that the Court might reverse because of
some unspecified body of social science research contradicting the central premise
of the panels equal protection holdings. Application at 17. Applicants claim that
this research purportedly shows that children do best across a range of outcomes
when they are raised by their father and mother (biological or adoptive), living
together in a committed relationship. Id. at 18. But as the court of appeals
explained, even if that assertion about childrearing were true (which respondents
deny), it does not justify Idahos marriage ban. Idaho allows no-fault divorce, and it
even allows same-sex couples to adoptboth of which fatally undermine applicants
reliance on this justification. C.A. Slip Op. at 24-25, 27-28.
Applicants also overlook the fact that same-sex couples will continue
parenting children regardless of whether they are allowed to marry. Denying these
families the right to define their relationships through marriage thus serves only to
humiliate[] * * * children now being raised by same-sex couples, making it even
17

more difficult for the children to understand the integrity and closeness of their own
family and its concord with other families in their community and in their daily
lives. Windsor, 133 S. Ct. at 2694.
* * *
Every court of appeals that has recently considered the justifications that
applicants advance for discriminatory marriage laws has rejected them as illogical
and insufficient. Applicants fail to demonstrate that this Court would reach a
different conclusion.
III. Applicants Will Not Suffer Irreparable Harm In The Absence Of A Stay
Applicants bear the burden of showing that they will suffer irreparable harm
if a stay is not granted. Rubin v. United States, 524 U.S. 1301, 1301 (1998)
(Rehnquist, C.J., in chambers) (An applicant for stay first must show irreparable
harm if a stay is denied.). Applicants fall far short in meeting their burden.
The primary harm that applicants identify is the States inability to enforce
its marriage laws. Application at 19-21. But a State can have no legitimate
interest in enforcing unconstitutional laws. The decisions on which applicants rely
(Application at 19) for the proposition that a State is harmed when it is enjoined
from effectuating a state law so concluded only after first determining that the state
law was likely constitutional. New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S.
1345 (1977) (Rehnquist, J., in chambers); Maryland v. King, 133 S. Ct. 1 (2012)
(Roberts, C.J., in chambers); Planned Parenthood of Greater Tex. Surgical Health
Servs. v. Abbott, 134 S. Ct. 506 (2013) (Scalia, J., concurring in denial of application
to vacate stay). Indeed, assessing irreparable harm requires consideration of not
18

only the relative likelihood that the merits disposition one way or the other will
produce irreparable harm, but also the relative likelihood that the merits
disposition one way or the other is correct. Barnes v. E-Systems, Inc. Grp. Hosp.
Med. & Surgical Ins. Plan, 501 U.S. 1301, 1305 (1991) (Scalia, J., in chambers).
Here, the post-Windsor unanimity among the Circuits that laws precluding same-
sex couples from marrying are unconstitutional, combined with this Courts denial
of certiorari in each of those cases, suggests that applicants are unlikely to prevail
and that the asserted harm is therefore illusory.
Nor is a stay warranted because of alleged practical consequences
associated with the thorny problem of whether and how to unwind the marital
status of same-sex unions. Application at 21. A thorny problem is not the same
as irreparable harm. Even in the unlikely event that this Court were to grant
review and reverse, marriages performed in the interim would not irreparably harm
applicants. Under well-settled law, any administrative or financial costs that
might arise from seeking judicial determinations concerning the validity of such
marriages cannot constitute irreparable injury. Sampson v. Murray, 415 U.S. 61,
90 (1974) (Mere injuries, however substantial, in terms of money, time and energy
necessarily expended in the absence of a stay, are not enough.). Indeed, this
alleged injury is no different from the result of this Courts denial of the petitions
this past Monday, which had the effect of lifting stays of lower-court decisions and
allowing same-sex couples to marry, even while this Court has not finally
determined the unconstitutionality of state laws precluding such marriages.
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Applicants argument that this Court should issue a stay because same-sex
couples and their children may suffer dignitary and financial losses from the
invalidation of their marriages, see Application at 21, undermines, rather than
advances, their argument. Applicants cannot simultaneously acknowledge that
being stripped of ones marital status causes profound, irreparable harm and yet
urge the Court to deprive respondents of the ability to marry and to have their
lawful marriages recognized. The immediate, continuing, and severe harm
experienced by same-sex couples as a result of their inability to marry far outweighs
any speculative problems that might be caused should applicants or other parties
seek invalidation of their marriages in the future.
IV. The Balance Of Harms Weighs Strongly Against A Stay
Even if applicants could show that they face irreparable harm (which they
cannot), they would not be entitled to a stay. The likelihood that denying the stay
will permit irreparable harm to the applicant may not clearly exceed the likelihood
that granting it will cause irreparable harm to others. Barnes, 501 U.S. at 1305.
Here, any injury to applicants would be greatly outweighed by the ongoing injury to
respondents and the public.
Respondents and numerous other same-sex couples in Idaho will face
concrete, grievous, ongoing harm from a stay. As Windsor confirmed, marriage is a
status of immense import. 133 S. Ct. at 2692. It is the most important relation
in life. Zablocki, 434 U.S. at 384 (internal quotation marks omitted). Throughout
the duration of a stay, same-sex couples will face major life events such as births,
illnesses, and deaths, all without the crucial legal protections afforded by marriage.
20

Children reared in homes with same-sex parents, including respondents children,
will continue to be humiliate[d] as they are sent the unmistakable message that
their families are second class. Windsor, 133 S. Ct. at 2694. As the court of appeals
concluded, Idahos marriage laws, by preventing same-sex couples from marrying
and refusing to recognize their marriages celebrated elsewhere, impose profound
legal, financial, social and psychic harms. C.A. Slip Op. at 32 (footnote omitted). A
stay would extend and compound those profound harms.
7

CONCLUSION
The application should be denied.
7
Rostker v. Goldberg, 448 U.S. 1306, 1310 (1980) (Brennan, J., in chambers) does not help
applicants. Contra Application at 23. Justice Brennan observed in Rostker that no irreparable
harm would result from the inconvenience of filling out draft cards that could be destroyed if
respondents constitutional challenge were upheld. Here, the inability to marry is far from a minor
inconvenience.
21


Respectfully submitted,
DEBORAH A. FERGUSON
Counsel of Record
FERGUSON DURHAM, PLLC
202 N. 9th Street, Suite 401 C
Boise, Idaho 83702
Telephone: 208.484.2253
[email protected]

CRAIG HARRISON DURHAM
FERGUSON DURHAM, PLLC
910 W. Main Street, Suite 328
Boise, Idaho 83702

SHANNON P. MINTER
DAVID C. CODELL
CHRISTOPHER F. STOLL
NATIONAL CENTER FOR LESBIAN RIGHTS
870 Market Street, Suite 370
San Francisco, California 94102
DEANNE E. MAYNARD
JOSEPH R. PALMORE
MARC A. HEARRON
MORRISON & FOERSTER LLP
2000 Pennsylvania Avenue, N.W.
Washington, D.C. 20006

RUTH N. BORENSTEIN
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105







Counsel for Respondents

OCTOBER 9, 2014



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