No.

14-765
IN THE

Supreme Court of the United States

________________________
C.L. BUTCH OTTER,

Petitioner

v.
SUSAN LATTA, et al.,

Respondents

_______________________
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Ninth Circuit
_________________________
REPLY IN SUPPORT OF PETITION
FOR WRIT OF CERTIORARI

________________________
THOMAS C. PERRY
Counsel to the Governor
P.O. Box 83720
Boise, Idaho 83720-0034

GENE C. SCHAERR

Counsel of Record
Law Offices of Gene Schaerr
332 Constitution Ave. NE
Washington, DC 20002
(202) 361-1061

gschaerr@gmail.com
Counsel for Petitioner

i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ........................................ ii
REPLY IN SUPPORT OF PETITION ........................ 1
I.

Compelling and largely undisputed reasons

support this Courts reviewing the Ninth
Circuits decision on the merits, in tandem with
Obergefell. .......................................................... 2

II.

Respondents arguments against review lack

merit. .................................................................. 8

CONCLUSION .......................................................... 13

ii
TABLE OF AUTHORITIES
Cases

DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014) ......... 4

DL Resources, Inc. v. FirstEnergy Solutions Corp.,
506 F.3d 209 (10th Cir. 2007) .................................. 9

FirsTier Mortgage Co., v. Investors Mortgage Ins.

Co., 498 U.S. 269 (1991) ........................................... 9
Herbert v. Evans, 21 F.Supp.3d 1192 (D. Utah May
19, 2014) .................................................................. 12

In re Barnet, 737 F.3d 238 (2d Cir. 2013)................... 9

Maryland v. King, 133 S. Ct. 1 (2012) (Roberts, C.J.,
in chambers) ........................................................... 11

Missouri v. Jenkins, 495 U.S. 33 (1990) ................. 8, 9

New Motor Vehicle Bd. of California v. Orrin W. Fox
Co., 99 S. Ct. 403 (1978) (Rehnquist, J., in
chambers)................................................................ 11

Robicheaux v. George, 2 F.Supp.3d 910 (E.D. La.

Sept. 3, 2014), cert. before judgment denied, 83
U.S.L.W. 3332 (Jan. 12, 2015) (No. 14-596) ............ 8

SmithKline Beecham Corp. v. Abbott Laboratories,

740 F.3d 471, rehg en banc denied, 759 F.3d 990
(9th Cir. 2014)........................................................... 2

Strauss v. Horton, 207 P.3d 48 (Ca. Sup. Ct. 2009) . 12

U.S. v. Walker, 915 F.2d 1463 (10th Cir. 1990) ......... 9

iii

United States v. Windsor, 133 S. Ct. 2675 (2013) 3, 12

Statutes
28 U.S.C. 1254(1) . 8, 10
Rules
Federal Rules of Appellate Procedure, 4(a)(2) ............ 9

REPLY IN SUPPORT OF PETITION

Now that the Court has granted review in another
set of cases (Nos. 14-556 et al., Obergefell v. Hodges
(collectively, Obergefell)) to determine the constitutionality of state man-woman marriage laws, the only
immediate question here is whether it makes sense to
add this case to the mix. It does, for reasons explained
in the petitions and not seriously disputed by respondents. For example, this case gives the Court an opportunity to consider a more robust, expansive defense of
man-woman marriage laws than those offered thus far
by the Obergefell defendants. And it gives the Court a
good vehicle with which to resolve the important circuit conflict over the legal standard applicable to
claims of sexual-orientation discrimination. It also
gives the Court a good vehicle with which to address
and resolve the new jurisdictional objection articulated in Judge OScannlains dissent from denial of en
banc rehearingthat lower federal courts lack jurisdiction to entertain Fourteenth Amendment challenges to state man-woman marriage laws.
All of these points will need to be addressed for the
Court to properly reach and resolve the important issues presented in Obergefell. As explained below,
moreover, respondents various attempts to escape this
Courts review have no merit.
Accordingly, the Court should grant these petitions
and set this case for argument in tandem with Obergefell, with a briefing schedule that (except for petitioners opening briefs) is only slightly more
accelerated than the schedule in that case.

2
I. Compelling and largely undisputed reasons support this Courts reviewing the Ninth Circuits decision on the merits, in tandem with Obergefell.
Respondents do not dispute the principal reasons
counseling plenary review in this case. For example,
respondents do not deny that the Ninth Circuits decision to apply heightened scrutiny to classifications allegedly based on sexual orientation widens a mature
circuit split between the Ninth and Second Circuits, on
the one hand, and nine other circuits. Pet. 19-22; cf.
Opp. 22-31. Nor do they deny that the decision below
stands in substantial tension with a number of this
Courts precedents calling for deference to state decisions about domestic relations in general and marriage in particular. See Pet. 13-19; cf. Opp. 18-31
(attempting to defend decision below without addressing decisions of this Court suggesting a contrary outcome). Instead, respondents suggest that, with the
Court having now agreed to hear the Obergefell cases,
there is no incremental value in also reviewing the
Ninth Circuits decision in this case. For at least four
reasons, they are wrong.
1. First, this case provides a good vehicle by which
to resolve the heightened-scrutiny issue, which, as
noted, is the subject of a deep and mature circuit conflict. Here, the panel opinion reiterated the Ninth Circuits prior holding in SmithKline Beecham Corp. v.
Abbott Laboratories, 740 F.3d 471, rehg en banc denied, 759 F.3d 990 (9th Cir. 2014), that laws classifying on the basis of sexual orientation laws are subject
to heightened scrutiny. The panel then invoked that
holding as the sole basis for invalidating Idahos manwoman marriage laws. See Pet. 11a-12a. Respondents

3
do not dispute this, much less attempt to defend the
Ninth Circuits remarkable conclusion that the
SmithKline heightened-scrutiny rule is required by
this Courts decision in United States v. Windsor, 133
S. Ct. 2675 (2013). Nor do respondents dispute the
enormous practical importance of allowing this conflict
to fester: With both the Ninth and Second Circuits
holding that allegations of sexual-orientation discrimination trigger heightened scrutiny, some 85 million
Americans are now subject to that doctrine and its substantial consequences for governments, churches,
businesses and non-profit organizationsnot to mention the federal and state judiciaries within those circuits.
It is possible, of course, that the petitioners in

Obergefell will also rely on the Ninth Circuits sexual

orientation holding in seeking reversal there. But that
argument has typically taken a back seat to their other
independent arguments, including arguments based
on alleged deprivation of a fundamental right, sex discrimination and lack of a rational connection between
means and ends. E.g., Obergefell Pet. 22-26; DeBoer
Pet. 14-17, 18-22; Bourke Pet. 19-23; Tanco Pet. 12-16.
There is thus no assurance that this vital issue will
receive a full airing in the Obergefell cases, much less
that the Court will feel comfortable using Obergefell
as a vehicle for resolving that issuewhich has enormous importance beyond marriage.
Accordingly, to bring greater order to the resolution
of that critical issue while at the same time simplifying
the Obergefell proceedings, petitioner respectfully
suggests that the Court grant the petitions in this case

4
and direct the parties here to address the following
limited question (or some variant thereof):
Does the 14th Amendment require that laws discriminating on the basis of sexual orientation be
subject to heightened judicial scrutiny and, if so,
was the Ninth Circuit correct in applying that requirement to invalidate Idahos laws forbidding the
licensing and recognition of same-sex marriages?
If the Court makes clear that it intends to resolve the
heightened-scrutiny issue in this case, that will allow
the parties in the Obergefell cases to focus more attention on the other arguments addressed in the Sixth
Circuits decision. See DeBoer v. Snyder, 772 F.3d 388,
402-418 (6th Cir. 2014) (discussing arguments based
on irrationality and denial of a fundamental right).
That approach will also increase the likelihood that
the Court will be able to reach and resolve the pressing
circuit conflict on the heightened-scrutiny issue regardless of how the Court ultimately rules on the constitutionality of man-woman marriage laws.
2. As explained in the petition (at 28-29) and not
disputed by respondents, this is also the only marriage
case now available to the Court in which a state official
has attempted to defend the man-woman definition of
marriage under a heightened-scrutiny standard. Respondents seek to dismiss that defense by asserting
that it merely addresses why men and women should
be permit[ted] to marry each other in the first instance. Opp. 27. But that is an obvious mischaracterization of petitioners point, which is a defense of
the man-woman definition of marriagewhich necessarily limits that institution to man-woman couples.

5
As outlined in the petition (at 25-28), the most compelling policy reason for maintaining and protecting
the man-woman definition is that, without it, several
of the social norms that tend to bind procreative heterosexual couples together would be weakened or lost,
at least in some segments of society. That in turn
would lead to more children of heterosexuals being
raised without at least one of their parents, usually
their fathers. And that in turn would lead to more children suffering from emotional and psychological problems, committing crimes, abusing drugs and alcohol,
and neglecting their own children, among other social
ills. See Pet. 27. Because states have a compelling
interest in avoiding these risks to children of heterosexuals, they also have a compelling interest in preserving the social norms that flow from and are
reinforced by the man-woman definition of marriage.
Measures that preserve and protect that definition (including from nullification by state judges) are therefore narrowly tailored to the states compelling
interests, and thus satisfy heightened scrutiny.
Respondents do not dispute that in both the district
court and the Ninth Circuit, Idahos law was defended
on this very ground, and with ample supporting evidence. See Pet. 9-10, 11. Nor do respondents dispute
that none of the states in the Obergefell litigation asserted such a defense or has so far relied upon it in this
Court. Whether or not the Court ultimately agrees
with that defense, it is an important perspective that
needs to be considered fully before this Court can determine whether the man-woman definition of marriage satisfies the Fourteenth Amendment. That
reality provides another important reason to grant

6
these petitions and hear this case in tandem with

Obergefell.

3. In addition, this is the only case now available

to the Court in which any public officials have defended the man-woman definition in part on the
grounds of reducing the potential for religious conflict
and church-state entanglement. See Pet. 29. Although respondents disagree with that defense on the
merits, see Opp. 31, they do not dispute that this is the
only available case in which that point has been raised,
or that it deserves serious consideration as the Court
determines whether to uphold the States authority to
define marriage as the union of a man and a woman.
That is yet another powerful reason to hear this case
in tandem with Obergefell.
4. Judge OScannlains dissent from denial of en
banc rehearing provides an additional, independent
reason for doing so. To be sure, his dissent nicely complements the Sixth Circuit majoritys analysis of the
negative implications for federalism and democracy of
a decision invalidating state man-woman marriage
laws. See Latta v. Otter, Nos. 14-35420, 14-35421, 1217668, at 15-20 (OScannlain, J., dissenting from denial of rehearing en banc) (OScannlain dissent). 1

For example, Judge OScannlain explains the deleterious effects on the civic health of the country of removing the manwoman definition of marriage from the Peoples deliberations,
and explains why [t]he healthy, spirited, and engaged debate
over marriage policy represents the virtues of democratic selfgovernance. OScannlain dissent at 20, 19.
1

7
But his dissent also argues, for the first time in a judicial opinion, that lower federal courts lack jurisdiction
to entertain Fourteenth Amendment challenges to
state laws defining marriage. As he explains, the domestic-relations exception to federal jurisdiction easily encompasses disputes over the constitutionality of
man-woman marriage laws. Id. at 20-25. Although no
one advanced that argument before the Ninth Circuit,
petitioner will vigorously assert and defend that position if the Court grants the present petition.
5. Contrary to respondents suggestion, there is no
practical impediment to or disadvantage in the Courts
hearing this case in tandem with Obergefell. The
Court can easily address respondents concern about
undue duplication (Opp. 13) by directing the parties
in this case to focus on the Ninth Circuits sexual orientation/heightened scrutiny analysis and on Judge
OScannlains jurisdictional point.
Concerns about coordination with the briefing and
argument schedule in Obergefell are easily addressed.
Petitioner is willing to file his opening brief on March
9, nearly three weeks before the respondents briefs in
Obergefell are currently due. If the respondents in
this case require more than three weeks to prepare
their merits brief, petitioner is also willing to shorten
the usual time for filing a reply, while still ensuring
that all briefing will be complete on April 17the due
date for the Obergefell replies. That schedule will allow the Court to hold argument in this case in tandem
with Obergefell, sometime in late April.

8
II. Respondents arguments against review lack
merit.
None of respondents other objections is sound.
1. Respondents first urge denial of certiorari because, in their view, the petitions were filed prematurely, and thus present the novel question whether
a certiorari petition may bring before the Court a
later-issued final judgment. Opp. 15. But 28 U.S.C.
1254(1) squarely answers this question, providing
that a case in the courts of appeals may be reviewed
by the Supreme Court [by] writ of certiorari granted
upon the petition of any party before or after rendition of a judgment. Moreover, unlike the petition arising from the Louisiana marriage case that this Court
recently denied, Robicheaux v. George, 2 F.Supp.3d
910 (E.D. La. Sept. 3, 2014), cert. before judgment denied, 83 U.S.L.W. 3332 (Jan. 12, 2015) (No. 14-596),
the petitions here were timely filed after the Ninth
Circuit issued its judgmentindeed, after its mandate
was issued. Respondents cite, and petitioner has
found, nothing in the relevant statutes or this Courts
rules that would preclude a party in federal-court litigation from seeking rehearing en banc and review in
this Court simultaneously. And the one decision respondents citeMissouri v. Jenkins, 495 U.S. 33, 46
(1990)deals with the effect of a pending petition for
panel rehearing, not a petition for rehearing en banc,
which is what the petitioners filed here, and which the

9
Court in Jenkins expressly distinguished from petitions for panel rehearing.2 Accordingly, the petitions
for certiorari were not premature.
But even if they were, appellate courts have long
allowed premature petitions to ripen upon final judgment. See, e.g., DL Resources, Inc. v. FirstEnergy Solutions Corp., 506 F.3d 209 (10th Cir. 2007) (in the civil
context); In re Barnet, 737 F.3d 238 (2d Cir. 2013) (in
the bankruptcy context); U.S. v. Walker, 915 F.2d 1463
(10th Cir. 1990) (in the criminal context). And in an
analogous context, this Court has held that [u]nder
[FRAP] Rule 4(a)(2), a premature notice of appeal does
not ripen until judgment is entered, and that [o]nce
judgment is entered, the Rule treats the premature notice of appeal as filed after such entry and thus permits it to serve as an effective notice of appeal from
the final judgment. FirsTier Mortgage Co., v. Investors Mortgage Ins. Co., 498 U.S. 269, 275 (1991) (emphasis in original).3

Jenkins also addressed this issue under a now-superseded ver-

sion of the Federal Rules of Appellate Procedure and a now-superseded version of this Courts rules. See 495 U.S. at 46-47.
FRAP was amended in 1993 and now states: A notice of appeal
filed after the court announces a decision or orderbut before the
entry of the judgment or orderis treated as filed on the date of
and after the entry. Rule 4(a)(2). And the Notes of Advisory
Committee on Rules1993 Amendment state that the amendment to Paragraph (a)(2): treats a notice of appeal filed after
the announcement of a decision or order, but before its formal entry, as if the notice has been filed after entry.
3

10
Accordingly, if the petitions were premature, they
ripened on January 9, 2015, when the Ninth Circuit
denied rehearing en banc. They are now, therefore,
unquestionably timely. And it would make no sense to
deny timely petitions because they were premature
when filed, thereby forcing petitioners to file new petitions to preserve their appellate rightsespecially
when the pertinent statute and rules expressly permits parties to seek review in this Court before [a]
judgment. 28 U.S.C. 1254(1).
2. Respondents also urge the Court to deny review
based upon the divided defense resulting from separate litigation by the State and Governor Otter. Opp.
15. However, as noted in Governor Otters petition, he
and the Attorney General plan to work together if the
Court grants the petitions. And the fact that the Court
in Obergefell has now granted certiorari in four cases,
featuring a four-way divided defense among four
states, is evidence enough that, in this context, a
multi-pronged defense from multiple state actors is no
grounds to deny review.
3. Finally, respondents argue that review should
be denied so that they may have certainty as to the
status of their marriages. Opp. 17. Putting aside the
reality that any appellate review procedure necessarily entails a degree of uncertainty, this argument is
misguided for three reasons.
First, by focusing just on the four couples in the
Idaho litigation, Respondents ignore the fact that
Idaho is currently under a district court injunction
that prevents it from applying its marriage laws to any
couple within the state. Thus, respondents focus on

11
their own temporary uncertainty inappropriately ignores the sovereign interest of the State and its elected
officials in enforcing the States marriage laws in the
future, and its inability to do so now. This Court has
long recognized that an inability to enforce state law
constitutes irreparable injury to a state and its elected
officials. See, e.g., Maryland v. King, 133 S. Ct. 1, 3
(2012) (Roberts, C.J., in chambers); New Motor Vehicle
Bd. of California v. Orrin W. Fox Co., 99 S. Ct. 403, 407
(1978) (Rehnquist, J., in chambers). Petitioners efforts to redress that injury, therefore, should not be so
lightly dismissed.
Second, it is respondents themselves who decided
to proceed with their marriages while this case was
still being litigated. They and their counsel obviously
knew that the State and its highest elected leaders
were committed to exhausting all possible avenues for
reversing the Ninth Circuits decision, yet they chose
to proceed. It is they, then, who chose to marry in the
midst of legal uncertainty, and it ill becomes them to
now advance that very uncertainty as a reason for this
Court to deny review.
Third, any such uncertainty is mitigated by substantial legal authority suggesting they now have a
constitutionally-vested right to keep their marriages,
regardless of how this Court rules on the constitutionality of the laws at issue here and in Obergefell. See
Herbert v. Evans, 21 F.Supp.3d 1192, 1203 (D. Utah
May 19, 2014) (finding that divesting married samesex couples of the duties and responsibilities that are
an essential part of marries life violates due process)
(quoting Windsor, 133 S. Ct. at 2695); Strauss v. Horton, 207 P.3d 48, 121 (Ca. Sup. Ct. 2009) (holding that

12
same-sex marriages that occurred after the California
Supreme Courts decision allowing such and before the
passage of Proposition 8 prohibiting any marriage
other than man-woman marriage were still valid because to hold otherwise would deprive[] a person of a
vested right without due process of law.). These couples may also be able to convince Idaho officials to recognize their marriages should the Court uphold
Idahos marriage laws. But in any event, the legal status of those marriages is a separate constitutional issue that can and should be addressed on remand or in
other appropriate proceedings.
*****
In short, this case provides a very useful complement to the Obergefell cases: It will give the Court an
opportunity to consider a more robust, vigorous defense of man-woman marriage laws than those offered
thus far by the Obergefell defendants. It will give the
Court a better opportunity to consider the potential
impact of a decision invalidating those laws on religious freedom and church-state entanglement. And it
will give the Court a clean opportunity to resolve the
enormously important circuit conflict over the legal
standard applicable to claims of sexual-orientation discrimination,
as well
as
addressing
Judge
OScannlains view that the lower federal courts lack
jurisdiction to entertain Fourteenth Amendment challenges to state man-woman marriage laws.

13
CONCLUSION
The petition for a writ of certiorari should be
granted, and the case heard in tandem with Oberge-

fell.

Respectfully submitted,
THOMAS C. PERRY
Counsel to the Governor
P.O. Box 83720
Boise, Idaho 83720-0034

GENE C. SCHAERR

Counsel of Record
Law Offices of Gene Schaerr
332 Constitution Ave. NE
Washington, DC 20002
(202) 361-1061

gschaerr@gmail.com

Counsel for Petitioner

FEBRUARY 2015