WASHINGTON (CN) - Idaho's ban on gay marriage was reinstated Wednesday after the U.S. Supreme Court stayed the mandate just issued by the 9th Circuit.
In an emergency motion to the Supreme Court this morning, counsel for Idaho Gov. C.L. "Butch" Otter said that the 9th Circuit erred because "the Idaho marriage statutes do not discriminate on the basis of sexual orientation."
"They classify on the basis of procreative capacity inherent generally in members of the opposite sex," the 11-page motion states.
This misunderstanding requires an en banc rehearing, Idaho said.
Justice Anthony Kennedy came through with a one-paragraph order staying the mandate quickly thereafter.
The Associated Press says the order came 10 minutes before state and county officials in Idaho "would otherwise have been required to begin issuing marriage licenses to same-sex couples."
Though Kennedy's stay applied to Nevada, which also was going to start granting marriage licenses to gay couples today, the Supreme Court later issued another order removing the stay with respect to that case.
A response to Idaho's application is due Thursday by 5 p.m.
Supreme Court stays this summer had temporarily reinstated bans on same-sex marriage in states like Utah and Virginia, but those stays dissolved Monday when the justices denied writs of certiorari to seven states whose bans against same-sex marriage were struck down.
Idaho insisted that those denials did not make its position frivolous.
"The panel's immediate mandate issuance also essentially means not only that the dissents in three of the cases as to which certiorari was denied were 'legally frivolous' but also that, were another circuit to issue an opinion contrary to the panel's, its decision would be labeled similarly," the brief states.
Though Idaho and Nevada had claimed that its voter-approved bans on gay marriage intended to protect children and solidify the institution of marriage, the 9th Circuit unanimously disagreed.
"If defendants really wished to ensure that as many children as possible had married parents, they would do well to rescind the right to no-fault divorce, or to divorce altogether. Neither has done so," Judge Stephen Reinhardt wrote for a three-member panel. "Such reforms might face constitutional difficulties of their own, but they would at least further the states' asserted interest in solidifying marriage. Likewise, if Idaho and Nevada want to increase the percentage of children being raised by their two biological parents, they might do better to ban assisted reproduction using donor sperm or eggs, gestational surrogacy, and adoption, by both opposite-sex and same-sex couples, as well as by single people. Neither state does."
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