14-35420 #193

Case Nos.
14-35420 & 14-35421

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SUSAN LATTA, et al.
Plaintiffs-Appellees,
v.
GOVERNOR C.L. BUTCH OTTER,
Defendant-Appellant,
CHRISTOPHER RICH,
Defendant,
And
STATE OF IDAHO,
Intervenor-Defendant

On Appeal from the United States District Court
For the District of Idaho
Case No. 1:13-cv-00482-CWD
The Honorable Candy W. Dale, Magistrate Judge

GOVERNOR C.L. BUTCH OTTERS
OPPOSITION TO MOTION TO DISSOLVE STAY

Thomas C. Perry
Counsel to the Governor
Office of the Governor
P.O. Box 83720
Boise, Idaho 83720-0034
Telephone: (208) 334-2100
Facsimile: (208) 334-3454
[email protected]
Gene C. Schaerr
LAW OFFICES OF GENE SCHAERR
332 Constitution Ave., NE
Washington, D.C. 20002
Telephone: (202) 361-1061
[email protected]

Attorneys for Defendant- Appellant Governor Otter
Case: 14-35420 10/13/2014 ID: 9274627 DktEntry: 193 Page: 1 of 29
INTRODUCTION
What is left of the State sovereignty justly celebrated in decisions
such as Alden v. Maine, 527 U.S. 706 (1999), Schuette v. BAMN, 134
S.Ct. 1623 (2014), and United States v. Windsor, 570 U.S. ___, 133 S.Ct.
2675 (2013), if a State cannot even keep a democratically enacted law in
place until reasonable appellate options have been exhausted? Granting
Plaintiffs emergency motion to dissolve this Courts May 2014 stay
would not merely contravene the spirit and intent of Federal Rule of
Appellate Procedure 41 as well as the terms of that staywhich extends
to this entire appeal, not just to the panel opinion. Granting that
motion would also improperly treat the sovereign State of Idaho as an
ordinary litigant, entitled to no more respect than a fly-by-night payday
loan business or massage parlor. The relief the Plaintiffs seek is thus as
wrong as a matter of principle as it is wrong as a matter of law.
Equally important, Plaintiffs motion pervasively misconstrues or
ignores the applicable legal standards, in two respects. First, Plaintiffs
ignore the fact that it is they who have the burden of persuasion on a
motion to dissolve a stay or vacate a injunction, Perry v. Brown, 639 F.3d
1153, 1154 (9th Cir. 2011) (citations omitted), and that they must
2

demonstrate that facts have changed sufficiently since the court issued
its order. Southeast Alaska Conservation Council v. U.S. Army Corps of
Engineers, 472 F.3d 1097, 1101 (9th Cir. 2006) (relying on Sharp v.
Weston, 233 F.3d 1166, 1169-70 (9th Cir. 2000)). Plaintiffs suggestion
that the Supreme Courts recent denial of Idahos stay application as well
as various petitions for certiorari filed on behalf of other States provides
the requisite change circumstances rests upon a flat misreading of
those two events.
Second, even if Plaintiffs were correct that this Court should
analyze its May 2014 stay as though it were being requested for the first
time, Plaintiffs are wrong in suggesting that Idaho must show[] a
likelihood that a petition for rehearing or a petition for a writ of certiorari
will be granted and that they will prevail on the merits. Motion at 6.
Under the settled law of this Circuit, all Idaho must show is a
reasonable probability, fair prospect, [or] substantial case on the
merits, or that the decision sought to be stayed raises serious legal
questions. Lair v. Bullock, 697 F.3d 1200, 1204 (9th Cir. 2012) (citations
omitted). In other words, the [t]he standard does not require the party
3

seeking a stay to show that it is more likely than not that they will win
on the merits. Id. (citations omitted).
As we now show, Plaintiffs have failed to make a sufficient showing
on any the relevant factors.
I. Plaintiffs Fail To Show That Governor Otter No Longer Has A
Reasonable Likelihood of Succeeding on the Merits, Either in
This Court or the Supreme Court.

First, there remains a fair prospect that Governor Otter will
ultimately succeed on the merits, either before the en banc Ninth Circuit,
or before the Supreme Court.
1. As to the States recent Supreme Court application, Plaintiffs
are incorrect in confidently proclaiming (at 2) that the considerations
that on Friday led the Supreme Court to deny that application were the
Courts views on such matters as the likelihood that the State parties
will succeed on the merits. In fact, the Court provided no explanation
for its action. And Plaintiffs motion ignores the potentially critical
procedural posture in which the State parties found themselves when the
Court acted.
4

Specifically, as Appellants made clear in their application to the
Supreme Court, the Appellants still have pending before this Court a
motion to stay the mandate that this Court recalled on October 8. That
motion were filed on the morning of October 8, shortly before the filing of
Appellants application to the Supreme Court, and seek the same relief
sought therea stay pending disposition of Appellants forthcoming
motion for rehearing and, if necessary, the disposition of a petition for
certiorari to the Supreme Court.
1
This of course means that, when the
Supreme Court denied Appellants stay application, unexhausted
remedies were still availablea classic basis for denying a stay. It is
therefore entirely reasonable to assume that was the reason the Supreme
Court denied Appellants stay application. Accordingly, that decision
cannot properly be interpreted as having denied the Appellants stay
application on the merits.
2. Plaintiffs are also incorrect in claiming that the Supreme
Courts recent denial of several petitions for certiorari in other cases

1
This morning, Governor Otter submitted a letter requesting that the
Court establish a briefing schedule on the pending motion for stay, and
that, if the Governors pending stay motion is denied, that the Court give
him a reasonable time in which to seek a further stay from the Supreme
Court.
5

including the Kitchen case on which this Court relied in granting the May
20 stayindicates there is no reasonable probability that a petition in
this case would fare any differently. Motion at 7. In fact, the issues
presented by this case are very different from the Fourteenth
Amendment issues presented in the cases in which certiorari was denied.
Specifically, this case presents two related and important federal issues
that extend well beyond marriage and independently merit further
review:
For Fourteenth Amendment equal-protection purposes, how
should a court determine whether a law that on its face does not
classify on the basis of sexual orientationas Idahos marriage
laws do notnonetheless constitutes discrimination on the basis
of sexual orientation? and

Assuming sexual-orientation discrimination (not just a disparate
impact) has been shown, should it be judged for equal-protection
purposes under a rational-basis standard or some form of
heightened scrutiny?

These issues were not squarely presented in the recently denied
petitions.
Moreover, as explained in the Governors pending motion for stay
and as Plaintiffs have not disputedthere currently exists a wide, deep
and mature circuit split on the general standard of review for sexual-
6

orientation discrimination claims. Only the Second Circuit has agreed
with this Court that sexual orientation is a suspect class subject to any
form of heightened scrutiny. Windsor v. United States, 699 F.3d 169,
181-85 (2d Cir. 2012). Conversely, nine other circuits have squarely held
that sexual orientation is not a suspect class and hence that such claims
are not subject to heightened scrutiny. See Cook v. Gates, 528 F.3d 42,
61-62 (1st Cir. 2008); Thomasson v. Perry, 80 F.3d 915, 927-28 (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); Citizens for
Equal Prot. v. Bruning, 455 F.3d 859, 866-67 (8th Cir. 2006); Price-
Cornelison v. Brooks, 524 F.3d 1103, 1113 (10th Cir. 2008); Lofton v.
Secy 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). Given that square
conflict, there remains at least a fair prospect that the Supreme Court
will grant review to resolve that fundamental conflict in this case.
There is also a reasonable likelihood that the Supreme Court will
reverse this Courts holding on that point. The Supreme Court has not
recognized a new suspect class in almost 40 years. See Kenji Yoshino,
7

The New Equal Protection, 124 HARV. L. REV. 747, 756-57 (2011) ([T]he
last classification accorded heightened scrutiny by the Supreme Court
was that based on nonmarital parentage in 1977 .). And the Supreme
Court has steadfastly declined several invitations to make sexual
orientation a suspect classin Lawrence v. Texas, 539 U.S. 558 (2003),
Romer v. Evans, 517 U.S. 620 (1996), and Windsor itself. Whats more,
SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014),
took the momentous step of creating a new suspect class without applying
the criteria the Supreme Court has identified for recognizing such a class,
such as political powerlessness and immutability. See City of Cleburne
v. Cleburne Living Ctr., Inc., 473 U.S. 432, 441-42 (1985).
Instead, the heightened scrutiny announced by SmithKline, and
applied by the panel to Idahos marriage laws, rests on a misreading of
Windsor. Although the SmithKline panel asserted that it was simply
applying Windsors heightened scrutiny for cases of sexual orientation
discrimination, 740 F.3d at 483, Judge OScannlain was right that
nothing in Windsor compels the application of heightened scrutiny to
claims of sexual orientation discrimination. Order, SmithKline Beecham
Corp. v. Abbott Laboratories, No. 11-17357, at 8 (9th Cir. June 24, 2014)
8

(OScannlain, J., dissenting from denial of rehearing en banc). By itself,
Judge OScannlains opinion establishes that Governor Otter has a
reasonable likelihood of prevailing on this issue in the Supreme Court.
Beyond that, besides expressly declining to address the
constitutionality of traditional State marriage laws, Windsor, 133 S. Ct.
at 2696, the entire Windsor opinion is based on State authority over
marriage and the unconstitutionality of DOMAs interference with a
States decision to grant equal dignity and legal status to same-sex and
opposite-sex unions. See, e.g., Windsor, 133 S. Ct. at 2692 (Here the
State's decision to give [same-sex couples] the right to marry conferred
upon them a dignity and status of immense import. When the State used
its historic and essential authority to define the marital relation in this
way, its role and its power in making the decision enhanced the
recognition, dignity and protection of the class in their own community.
DOMA, because of its reach and extent, departs from this history and
tradition of reliance on state law to define marriage.) (emphasis added);
see also id. at 2696 (The federal statute is invalid, for no legitimate
purpose overcomes the purpose and effect to disparage and to injure those
whom the State, by its marriage laws, sought to protect in personhood
9

and dignity.) (emphasis added). Indeed, virtually every important
sentence in Windsor explaining why DOMA is unconstitutional includes
the word State.
That is why Plaintiffs are so careful in cutting and splicing
language from Windsorit is nearly impossible for them to quote an
entire key sentence without stumbling over that all-important State
qualifier. So they pluck references to dignity out of the opinion, but
omit Windsors essential text grounding the existence of dignity interests
in State law. See, e.g., Motion at 8, 11. In short, Windsor provides strong
federalism support for Idahos marriage laws, and cuts against this
Courts conclusion that such laws must be subject to some form of
heightened scrutiny.
3. Governor Otter recognizes of course that this Court has
already denied en banc review of SmithKline. But the en banc Court has
not yet been presented with the equally important, general issue of how
one determines whether a law that does not on its face discriminate on
the basis of sexual orientation nevertheless constitutes discrimination
on that basis. Nor has the en banc Court been called upon to address
that question in the context of State marriage laws defining marriage as
10

the union of a man and a woman. There is a strong likelihood that, even
if he does not prevail on the general suspect class issue decided in
SmithKline, Governor Otter will prevail on the more limited question of
whether the (admitted) disparate impact created by Idahos man-woman
marriage definition rises to the level of discrimination on the basis of
sexual orientation.
Idahos marriage laws clearly do not facially discriminate based on
sexual orientation. Article III, 28 of the Idaho Constitution provides
that [a] marriage between a man and a woman is the only domestic legal
union that shall be valid or recognized in this state. If as the panel said
the presence of facial discrimination depends on the explicit terms of
the statute, Decision at 13 (quoting Intl Union, United Auto, Aerospace
& Agr. Implement Workers of Am., UAW v. Johnson Controls, Inc., 499
U.S. 187, 199 (1991)), then Idahos law simply does not bear the marks of
sexual orientation discrimination. It distinguishes between male-female
unions and all other pairingsnot between heterosexual unions and
other relationships. Indeed, Idaho law allows a gay man to marry a
woman or a lesbian to marry a man. What determines a persons
11

eligibility to marry someone of a given sex is her own sex, not her sexual
orientation.
While the man-woman definition has an obvious disparate impact
on gay men and lesbians, the panel did not findand Plaintiffs cannot
establishthe additional element necessary to convert this disparate
impact into a finding of discrimination. The key question under
heightened scrutiny is whether imposing such a disparate impact or
hardship was the purpose of that definition. See, e.g., Personnel
Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979) (in
disparate impact context, governmental decision maker must have
selected or reaffirmed a particular course of action at least in part
because of, not merely in spite of, its adverse effects upon an
identifiable group). The answer is plainly no. Traditional marriage laws
(whether in statute, common law, or custom) predate by millennia both
the notion of homosexuality as a set orientation and the concept that
marriage could possibly include same-sex couples. Indeed, as the
Windsor majority noted, until recent years, many citizens had not even
considered the possibility that two persons of the same sex might aspire
12

to occupy the same status and dignity as that of a man and woman in
lawful marriage. Windsor, 133 S.Ct. at 2689.
Throughout history, including Idahos history, the core purpose of
the traditional marriage definition has always been to unite a man and
a woman for the benefit of each other and their children, not to harm gay
men and lesbians. Indeed, the panel appropriately did not find that
Idahos marriage definition was inspired by animus. Hence, even under
heightened scrutiny, that definition satisfies equal protection. For this
reason, too, there is a fair prospect of reversaleither by the en banc
Court, or by the Supreme Court.
4. Another indication of a reasonable prospect of reversal
especially by the en banc Courtis that the panel decision contravenes
Baker v. Nelson, 409 U.S. 810 (1972). There, the Supreme Court
unanimously dismissed, for want of a substantial federal question, an
appeal from the Minnesota Supreme Court squarely presenting the
question of whether a States refusal to recognize same-sex relationships
as marriages violates the Due Process or Equal Protection Clauses of the
Fourteenth Amendment. Id.; see also Baker v. Nelson, No. 71-1027,
Jurisdictional Statement at 3 (Oct. Term 1972); Baker v. Nelson, 191
13

N.W.2d 185 (Minn. 1971). Dismissal of the appeal in Baker was a
decision on the merits that constitutes controlling precedent unless and
until re-examined by this Court i.e., the Supreme Court. Tully v.
Griffin, Inc., 429 U.S. 68, 74 (1976) (emphasis added).
Yet the panel refused to follow Baker, believing it had been
substantially undercut by the majority in Windsor. See Decision at 9-11.
That is incorrect. Putting aside the fact that Baker wasnt even discussed
by the Windsor majority, the panels analysis overlooks that the precise
issue presented in Windsorwhether the federal government can refuse
to recognize same-sex marriages performed in States where such
marriages are lawfulwas very different from the question presented in
Baker, i.e., whether a State may constitutionally refuse to authorize
same-sex marriages under State law. Because the issues presented were
different, the Supreme Court simply had no occasion to address whether
Baker was controlling or even persuasive authority in Windsor; it
obviously was not.
In this case, however, Baker will be highly relevant because it
decided the very issue presented here. To be sure, a dismissal of the sort
at issue in Baker is not herethat is, in the Supreme Courtof the
14

same precedential value as would be an opinion of this Court treating the
question on the merits. Tully, 429 U.S. at 74 (quoting Edelman v.
Jordan, 415 U.S. 651, 671 (1974)). But that implies, and practice
confirms, that even in the Supreme Court such a dismissal remains of
some precedential value. And of course it does not undermine Bakers
binding character on the en banc Court.
Accordingly, even if the logic of Windsor suggested an opposite
outcomewhich it does notthere is at least a reasonable likelihood that
a majority of this Court sitting en banc will elect to follow Baker, and a
reasonable likelihood that the Supreme Court will do so, because of its
precedential value if nothing else. And that outcome is even more likely
given (a) the Windsor majoritys emphasis on respect for State authority
over marriage, and (b) the district courts pointed (and correct) refusal to
find that Idahos marriage laws (in contrast with DOMA) are rooted in
animus toward gays and lesbians.
A final reason to believe there is a reasonable likelihood this Court
or the Supreme Court will ultimately invalidate the district courts
injunction is the large and growing body of social science research
contradicting the central premise of the panels equal protection
15

holdings.
2
That researchsome of it cited in Justice Alitos Windsor
opinion, 133 S. Ct. at 2715 & n.6 (Alito, J., dissenting)confirms what
the State, its citizens, and indeed virtually all of society have until
recently believed about the importance of providing unique
encouragement and protection for man-woman unions. It is (a) 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, and (b) that limiting the definition of marriage to man-
woman unions, though it cannot guarantee that outcome, substantially
increases the likelihood that the children of heterosexuals, at least, will
be raised in such an arrangement. Indeed, these are the core legislative
facts on which legislatures and voters throughout the Nation have relied
in repeatedly limiting marriage to man-woman unions. And even when

2
In citing this research we do not mean to suggest that the State of Idaho
bears the burden of proving that its views on marriage are correct or
sound. To the contrary, a government has no duty to produce evidence
to sustain the rationality of a statutory classification. Heller v. Doe, 509
U.S. 312, 320-21 (1993). And indeed a legislative choice may be based
on rational speculation unsupported by evidence or empirical data. FCC
v. Beach Commcns, 508 U.S. 307, 315 (1993). The research discussed
here briefly sketches what Idaho and its citizens could rationally believe
about the benefits of limiting marriage to man-woman unions.
16

contravened by other evidence, they are not subject to second-guessing
by the judiciary without a showing that no rational person could believe
them. See, e.g., Vance v. Bradley, 440 U.S. 93, 112 (1979) (It makes no
difference that the [legislative] facts may be disputed or their effect
opposed by argument and opinion of serious strength. It is not within the
competency of the courts to arbitrate in such contrariety.) (internal
quotation marks omitted)).
Accordingly, there is a reasonable probability that the en banc
Court or the Supreme Court will avoid that result and, in so doing, reject
the panels analysis and reverse its judgment.
II. Plaintiffs Fail to Show That The State And Its Citizenry Will No
Longer Suffer Irreparable Harm Absent a Stay.

Plaintiffs have also failed to rebut the States prior showing that it
and its citizens would suffer irreparable harm absent a stay. Nor do they
attempt to rebut the bedrock principle, repeatedly acknowledged by the
Supreme Court, that any time a State is enjoined by a court from
effectuating statutes enacted by representatives of its people, it suffers a
form of irreparable injury. New Motor Vehicle Bd. v. Orrin W. Fox Co.,
434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers); accord Maryland
17

v. King, 567 U.S. ___, 133 S.Ct. 1, 3 (2012) (Roberts, C.J., in chambers)
(granting a stay); Planned Parenthood of Greater Texas Surgical Health
Servs. v. Abbott, 571 U.S. ___, 134 S.Ct. 506, 506 (2013) (Scalia, J.,
concurring in denial of application to vacate stay). That same principle
supports a finding of irreparable injury in this case. For the district
courts ordernow affirmed by a panel of this Courtenjoins the State
from enforcing not only an ordinary statute, but a constitutional
provision approved by the people of Idaho in the core exercise of their
sovereignty.
1. That States have a powerful interest in controlling the
definition of marriage within their borders is indisputable. Indeed, the
Windsor majority acknowledged that [e]ach state as a sovereign has a
rightful and legitimate concern in the marital status of persons domiciled
within its borders, Windsor, 133 S.Ct. at 2691 (quoting Williams, 317
U.S. at 298), and emphasized that [t]he recognition of civil marriages is
central to state domestic relations law applicable to its residents and
citizens. Id. (emphasis added). Every single marriage performed
between persons of the same sex as a result of the district courts
injunctionand in defiance of Idaho lawwould thus undermine the
18

sovereignty of the State and its people. Each such marriage would
contravene the States sovereign interest in controlling the marital
status of persons domiciled within its borders. Id.
Idahos sovereign interest in determining who is eligible for a
marriage license is bolstered by federalism concerns, which affirm the
States constitutional authority over the entire field of family relations.
As the Windsor majority explained, regulation of domestic relations is
an area that has long been regarded as a virtually exclusive province of
the States. 133 S. Ct. at 2691 (quoting Sosna v. Iowa, 419 U.S. 393, 404
(1975)) (emphasis added). The panels decision breaches the principle of
federalism by exerting federal control over the definition of marriagea
matter within Idahos virtually exclusive province. Id.
A federal intrusion of this magnitude not only contravenes the
States sovereignty; it also infringes the right of Idahoans to government
by consent within our federal system. As Justice Kennedy has explained:
The Constitution is based on a theory of original, and
continuing, consent of the governed. Their consent depends
on the understanding that the Constitution has established
the federal structure, which grants the citizen the protection
of two governments, the Nation and the State. Each sovereign
19

must respect the proper sphere of the other, for the citizen has
rights and duties as to both.
United States v. Lara, 541 U.S. 193, 212 (2004) (Kennedy, J., concurring
in the judgment); see also Bond v. United States, 131 S.Ct. 2355, 2364
(2011) (When government acts in excess of its lawful powers under our
system of federalism, the liberty [of the individual] is at stake.).
Dissolving the stay before the appellate process is completed would place
in jeopardy the democratic right of Idahoans to choose for themselves
what marriage will mean in their community.
2. Relatedly, dissolving the stay would foster political
disengagement and even apathy among Idahos voters on matters of
State concern. After all, if a popular referendum on so important and
sensitive an issue as the definition of marriage can be overturned by the
federal judiciary without the State even being afforded the opportunity
to exhaust its appellate remedies, why should ordinary citizens even
bother to vote on such matters? As the Supreme Court recently noted in
Schuette v. BAMN, 134 S. Ct. 1623 (2014), It is demeaning to the
democratic process to presumeas the Plaintiffs motion doesthat
20

the voters are not capable of deciding an issue of this sensitivity on decent
and rational grounds. Id. at 1637.
Similarly, if laws passed by State legislatures can be overturned
without the State having an opportunity for full appellate review before
the law loses its force, why should ordinary citizens bother to vote for
State office-holders? Dissolving the stay would thus signal to voters that
the only elections that really matter are federal elections, and that
perception too would inflict irreparable injury on the State and its
political processes.
3. Dissolving the stay would also impose another form of
irreparable injury. Unless the stay remains in force, many marriage
licenses will be issued to same-sex couples before the State is able to
exhaust its appellate remedies. Then, if the State ultimately prevails,
the couples so married will undoubtedly claimas they did in Utah
that they now have a vested right to the marital status they achieved
as a result of this Courts decision and its vacatur of the current stay.
And the only legal authority on this question indicates that those couples
will be correct. See Evans v. Utah, __ F.Supp.2d__, 2014 WL 2048343 (D.
Utah May, 19, 2014).
21

Why does this amount to irreparable injury? It means that, even if
Idaho ultimately prevails, many same-sex couples will be able to continue
claiming State-conferred marital benefits of all kinds. And that
circumstance will constitute an ongoing, permanent affront to the
authority of the State and its people over this important aspect of
domestic-relations law.
At a minimum, if the stay were dissolved but the panel decision
ultimately overturned, the State would have to confront the thorny
problem of whether and how to unwind the marital status of same-sex
unions. Considerable administrative and financial costs will be incurred
to resolve that problem, and the States burden will only increase as the
number of marriage licenses issued to same-sex couples continues to
grow. See INS v. Legalization Assistance Project, 510 U.S. 1301, 1305-
06 (1993) (OConnor, J., in chambers) (citing the considerable
administrative burden on the government as a reason to grant the
requested stay). Only a stay can prevent that indefensible result.
In short, it cannot be seriously contested that, absent a stay, the
State will suffer irreparable harm from the district courts nullification
of Idahos constitutional definition of marriage, given that such harm
22

repeatedly has been found when a federal court enjoins the enforcement
of ordinary statutes. See New Motor Vehicle Bd., 434 U.S. at 1345
(relocation of auto dealerships); Maryland, 133 S.Ct. at 5 (collection of
DNA samples from arrestees); Planned Parenthood, 134 S. Ct. at 507
(Breyer, J., dissenting from denial of application to vacate the stay)
(restrictions on physicians eligibility to perform abortions). That too is
a powerful reason to deny the Plaintiffs motion.
3

III. Plaintiffs Fail To Show That A Stay Will Subject Them to
Substantial Irreparable Harm.

Plaintiffs, moreover, have failed to show that they will suffer any
substantial irreparable harm if the stay remains in force long enough for
the State to exhaust its appeal rights. First, contrary to Plaintiffs
argument, the usual rule that the loss of constitutionally protected
freedoms, for even minimal periods of time, unquestionably constitutes
irreparable injury, Elrod v. Burns, 427 U.S. 347, 373 (1976), is
inapposite here. While violation of an established constitutional right

3
Indeed, under this Courts sliding scale approach, such injury would
justify maintaining the stay in place even if the probability of success on
the merits were insufficient to justify a stay. See, e.g., Alliance for the
Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (applying
sliding scale approach in context of preliminary injunction).
23

certainly inflicts irreparable harm, that doctrine does not apply where,
as here, Plaintiffs seek to establish a novel constitutional right through
litigation. Because neither constitutional text nor any decision by a court
of last resort yet establishes their sought-after federal right to same-sex
marriage, Plaintiffs suffer no constitutional injury from awaiting a final
judicial determination of their claims before receiving the marriage
licenses they seek. See Rostker, 448 U.S. 1306, 1310 (1980) (reasoning
that the inconvenience of compelling Plaintiffs to register for the draft
while their constitutional challenge is finally determined does not
outweigh[ ] the gravity of the harm to the government should the stay
requested be refused).
Second, Plaintiffs irreparable-injury and balancing-of-harms
arguments turn on a fundamental misreading of Windsor as holding that
the dignity interests associated with marriage arise from the
Constitution. That is incorrect. Windsor repeatedly emphasized that
such dignitary interests, not from the Constitution itself, but from State
law:
Here the State's decision to give [same-sex couples] the right to
marry conferred upon them a dignity and status of immense import.
When the State used its historic and essential authority to define
24

the marital relation in this way, its role and its power in making
the decision enhanced the recognition, dignity, and protection of the
class in their own community. DOMA, because of its reach and
extent, departs from this history and tradition of reliance on state
law to define marriage.
133 S. Ct. at 2692 (emphasis added). Thus, under any fair and complete
reading of Windsor, it is not the denial of state recognition generally that
demeans same-sex couples and humiliates their children, but rather
DOMAs unfavorable differentiation between state-sanctioned same-
sex marriages and state-sanctioned traditional marriages. Id. at 2694;
see also 2696 (The federal statute is invalid, for no legitimate purpose
overcomes the purpose and effect to disparage and to injure those whom
the State, by its marriage laws, sought to protect in personhood and
dignity.) (emphasis added). Because Idaho law has never granted
Plaintiffs the status of marriage in the first place, the dignitary interests
recognized in Windsor simply do not exist in this case.
Third, while the harm to Idaho from invalidating its laws is
essentially per se irreparable (see supra), any harm to Plaintiffs is not.
Plaintiffs do not claim to be suffering from any unique circumstance that
would make waiting several additional months for this Court and the
Supreme Court to reach a final adjudication of this case an irreparable
25

harm. If they prevail, they will obtain the status of marriage and their
harms will be redressed. And they lack standing to speculate about
possible harms other same-sex couples may experience during that time.
Cf. Motion at 11. All of this likewise weighs heavily against granting
their motionespecially given their burden to demonstrate changed
circumstances.
IV. Plaintiffs Fail To Show That The Public Interest No Longer
Weighs in Favor of a Stay.

Finally, Plaintiffs have failed to demonstrate that the public
interest no longer weighs in favor of a stay. To the contrary, the public
has an overwhelming interest in maintaining the status quo pending a
regular and orderly review of Plaintiffs claims by the en banc Court of
Appeals and this Court. See Hollingsworth, 558 U.S. 183, 197 (2010)
(granting a stay, in part, because its absence could compromise the
orderly, decorous, rational traditions that courts rely upon to ensure the
integrity of their own judgments). A stay will serve the public interest
by preserving the Courts ability to address matters of vital national
importance before irreparable injury is inflicted on the State of Idaho and
its citizens.
26

Further, by reaffirming Idahos commitment to man-woman
marriage in 2006, the people of Idaho have declared clearly and
consistently that the public interest lies with preserving the current
marriage institution. See Stormans, Inc. v. Selecky, 586 F.3d 1109, 1140
(9th Cir. 2009) ([T]he district court should give due weight to the serious
consideration of the public interest in this case that has already been
undertaken by the responsible state officials in Washington, who
unanimously passed the rules that are the subject of this appeal.);
Golden Gate Rest. Assn, 512 F.3d 1112, 1126-1127 ([O]ur consideration
of the public interest is constrained in this case, for the responsible
officials in San Francisco have already considered that interest. Their
conclusion is manifested in the Ordinance that is the subject of this
appeal.).
The people of Idaho have expressed their concerns and beliefs
about this sensitive area and have defined what marriage is, id. at
680namely, as the union of a man and a woman. And nothing in the
Fourteenth Amendment compels much less allows this Court to second-
guess the people of Idahos considered judgment of the public interest.
27

CONCLUSION
This Court should leave in place the May 2014 stay that it
previously entered in this case, pending the disposition of the Governors
forthcoming petition for rehearing en banc and, if that is denied, a
petition for a writ of certiorari. Otherwise, this Court should stay its
mandate for a reasonable period to allow Governor Otter to seek, in a fair
and orderly way, a stay from the Circuit Justice or the full Supreme
Court.
DATED: October 13, 2014

By /s Gene C. Schaerr

28

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on May 13, 2014, I electronically filed the
foregoing with the Clerk of the Court using the CM/ECF system, which caused
the following parties or counsel to be served by electronic means, as more fully
reflected on the Notice of Electronic Filing:

Deborah A. Ferguson
[email protected]

Craig Harrison Durham
[email protected]

Shannon P. Minter
[email protected]

Christopher F. Stoll
[email protected]

W. Scott Zanzig
[email protected]

Clay R. Smith
[email protected]

By /s/ Gene C. Schaerr


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