                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


SUSAN LATTA; TRACI EHLERS; LORI         No. 14-35420
WATSEN; SHARENE WATSEN;
SHELIA ROBERTSON; ANDREA                   D.C. No.
ALTMAYER; AMBER BEIERLE;                1:13-cv-00482-
RACHAEL ROBERTSON,                          CWD
              Plaintiffs-Appellees,

                 v.

C. L. OTTER, “Butch”; Governor of
the State of Idaho, in his official
capacity,
                 Defendant-Appellant,

                and

CHRISTOPHER RICH, Recorder of
Ada County, Idaho, in his official
capacity,
                          Defendant,

STATE OF IDAHO,
             Intervenor-Defendant.
2                      LATTA V. OTTER

SUSAN LATTA; TRACI EHLERS; LORI           No. 14-35421
WATSEN; SHARENE WATSEN;
SHELIA ROBERTSON; ANDREA                     D.C. No.
ALTMAYER; AMBER BEIERLE;                  1:13-cv-00482-
RACHAEL ROBERTSON,                            CWD
              Plaintiffs-Appellees,

                  v.                      OPINION RE:
                                            ORDER
C. L. OTTER, “Butch”; Governor of
the State of Idaho, in his official
capacity,
                            Defendant,

                 and

CHRISTOPHER RICH, Recorder of
Ada County, Idaho, in his official
capacity,
              Defendant-Appellant,

STATE OF IDAHO,
   Intervenor-Defendant–Appellant.


      Appeal from the United States District Court
                for the District of Idaho
      Candy W. Dale, Magistrate Judge, Presiding

                Argued and Submitted
     September 8, 2014—San Francisco, California

                 Filed October 15, 2014
                         LATTA V. OTTER                               3

        Before: Stephen Reinhardt, Ronald M. Gould,
           and Marsha S. Berzon, Circuit Judges.

                       Per Curiam Opinion


                           SUMMARY*


                            Civil Rights

    The panel granted the plaintiffs’ motion for a dissolution
of the stay of the district court’s order enjoining enforcement
of Idaho’s same-sex marriage bans.

    In Latta v. Otter, No. 14-35420, 2014 WL 4977682 (9th
Cir. Oct. 7, 2014), the panel decided the present appeal, and
held unconstitutional Idaho’s statutes and constitutional
amendments preventing same-sex couples from marrying and
refusing to recognize same-sex marriages performed
elsewhere. The panel held that in light of its decision and the
other recent decisions by circuit courts across the country in
essentially identical cases, as well as the Supreme Court’s
decisions on October 6, 2014 to deny certiorari in all pending
same-sex marriage cases and thus to permit same-sex
marriages in all affected states notwithstanding any state
statute or constitutional provisions to the contrary, Idaho
Governor Otter could no longer meet the test for the grant or
continuation of a stay.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4                      LATTA V. OTTER

    The panel granted the plaintiffs’ motion for dissolution of
the stay of the district court’s order on October 13, 2014, but
exercised its discretion to afford the state a second
opportunity to obtain an emergency stay of the panel’s order
from the Supreme Court. For that reason, the panel’s order
of October 13, 2014 was not made effective until 9 a.m. PDT
(noon EST) on October 15, 2014.



                          OPINION

PER CURIAM:

     On October 10, 2014, the plaintiffs moved for dissolution
of the stay of the district court’s order enjoining the
enforcement of Idaho’s laws prohibiting same-sex marriage.
In Latta v. Otter, No. 14-35420, 2014 WL 4977682 (9th Cir.
Oct. 7, 2014), we decided the appeal, and held
unconstitutional Idaho’s statutes and constitutional
amendments preventing same-sex couples from marrying and
refusing to recognize same-sex marriages performed
elsewhere. The stay pending appeal was issued a number of
months ago, before the relevant factual and legal
developments that dictate the outcome of the present motion.
In light of our decision in Latta and the other recent decisions
by circuit courts across the country in essentially identical
cases, as well as the Supreme Court’s decisions on October
6, 2014 to deny certiorari in all pending same-sex marriage
cases and thus to permit same-sex marriages in all affected
states notwithstanding any state statute or constitutional
provisions to the contrary, Governor Otter can no longer meet
the test for the grant or continuation of a stay. We therefore
granted the plaintiffs’ motion for dissolution of the stay of the
                       LATTA V. OTTER                         5

district court’s order on October 13, 2014, effective October
15, 2014.

    The party seeking a stay—or continuation of a
stay—bears the burden of showing his entitlement to a stay.
See Nken v. Holder, 556 U.S. 418, 433–44 (2009). In ruling
on the propriety of a stay, we consider four factors:
“(1) whether the stay applicant has made a strong showing
that he is likely to succeed on the merits; (2) whether the
applicant will be irreparably injured absent a stay;
(3) whether issuance of the stay will substantially injure the
other parties interested in the proceeding; and (4) where the
public interest lies.” Id. at 434.

    Governor Otter cannot make a strong showing that he is
likely to succeed on the merits. See id. We have now held that
the plaintiffs have in fact succeeded on the merits of the case,
agreeing with every court of appeals to address same-sex
marriage bans subsequent to United States v. Windsor, 133 S.
Ct. 2675 (2013). Governor Otter argues that reversal of this
case—either via certiorari review or en banc proceedings—
remains likely because we applied heightened scrutiny to the
laws at issue, whereas nine other circuits have declined to
hold that gays and lesbians constitute a suspect class.
Governor Otter is wrong. The cases he cites all predate
Windsor. The post-Windsor cases either do not reach the
question of whether heightened scrutiny under the Equal
Protection Clause applies (while applying strict scrutiny
under a fundamental rights analysis) or suggest that
heightened scrutiny review under the Equal Protection Clause
may be applicable. See Baskin v. Bogan, No. 14-2386, 2014
WL 4359059, *1–3 (7th Cir. Sept. 4, 2014); Bostic v.
Schaefer, 760 F.3d 352, 375 n.6 (4th Cir. 2014); Bishop v.
6                      LATTA V. OTTER

Smith, 760 F.3d 1070, 1074 (10th Cir. 2014); Kitchen v.
Herbert, 755 F.3d 1193, 1229–30 (10th Cir. 2014).

    The panel’s decision in this case was dictated by
SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th
Cir. 2014), which held that heightened scrutiny applies to
classifications on the basis of sexual orientation. This court
voted not to rehear SmithKline en banc only a short time ago,
and we are bound by its actions. Specifically, SmithKline is
the binding law of the circuit. Moreover, the various courts of
appeals to have considered the issue of same-sex marriage
post-Windsor have all reached the same result—the
invalidation of same-sex marriage bans. These courts have
applied varying types of scrutiny or have failed to identify
clearly any applicable level, but irrespective of the standard
have all reached the same result. Finally, the fact that we
applied heightened scrutiny is irrelevant to whether the
Supreme Court is likely to grant certiorari to review our
decision. The Court is free to review—or not review—the
type of scrutiny applied to classifications based on sexual
orientation in any case challenging a ban on same-sex
marriage. The level of scrutiny applied in a particular case is
not likely to affect its decision as to which, if any, same-sex
marriage case it may ultimately review. Governor Otter’s
arguments that are based on SmithKline or the level of
scrutiny applied are thus unpersuasive.

    Moreover, when a motions panel of this court originally
entered the stay of the district court’s order, it did so based on
the Supreme Court’s stay in Herbert v. Kitchen, 143 S. Ct.
893 (2014), the Utah same-sex marriage case. However, on
Monday, October 6, the Supreme Court denied certiorari and
vacated stays in all seven of the same-sex marriage cases that
were pending before it, including Herbert. As a result of the
                       LATTA V. OTTER                         7

Supreme Court’s action, marriages have begun in those states.
At the time the Supreme Court denied certiorari in all the
pending cases, it was aware that there were cases pending in
other circuit courts that had not yet been decided but that
might subsequently create a conflict. The existence of those
pending cases, and the possibility of a future conflict, did not
affect the Court’s decision to permit the marriages to proceed,
and thus, Governor Otter’s argument that we should maintain
the stay in order to await the results of cases pending in other
circuits is unavailing.

    Additionally, after the panel’s issuance of the merits
decision in this case affirming the district court’s injunction,
the Supreme Court denied Idaho’s application for a stay of
this court’s mandate without published dissent, and vacated
Justice Kennedy’s temporary stay entered two days earlier. It
did so despite Idaho’s representation to the Court that
granting its application was necessary to allow the Court to
exercise its “unique role as final arbiter of the profoundly
important constitutional questions surrounding the
constitutionality of State marriage laws.” Because the
Supreme Court has thus rejected the argument that a stay was
necessary to any potential exercise of its jurisdiction to
review this case, we decline to second-guess that decision.
The first Nken factor strongly supports dissolution of the stay.

    We now turn to the second and third factors governing the
propriety of a stay: whether irreparable injury to the applicant
will result absent a stay and whether continuance of the stay
will injure other parties interested in the proceeding. On the
one hand, there is some authority suggesting that “a state
suffers irreparable injury whenever an enactment of its people
or their representatives is enjoined.” Coal. for Econ. Equity
v. Wilson, 122 F.3d 718, 719 (9th Cir. 1997); but see Indep.
8                         LATTA V. OTTER

Living Ctr. of So. Cal., Inc. v. Maxwell-Jolly, 572 F.3d 644,
658 (9th Cir. 2009) (characterizing this statement in Coal. for
Econ. Equity as dicta, and explaining that while “a state may
suffer an abstract form of harm whenever one of its acts is
enjoined . . . [t]o the extent that is true . . . it is not dispositive
of the balance of harms analysis.”), vacated and remanded on
other grounds sub nom. Douglas v. Indep. Living Ctr. of So.
Cal, Inc., 132 S. Ct. 1204 (2012).1 On the other hand, the
plaintiffs and countless gay and lesbian Idahoans would face
irreparable injury were we to permit the stay to continue in
effect. “Idaho[’s] . . . marriage laws, by preventing same-sex
couples from marrying and refusing to recognize same-sex
marriages celebrated elsewhere, impose profound legal,
financial, social and psychic harms on numerous citizens of
those states.” Latta, 2014 WL 4977682 at *11; see also
Baskin v. Bogan, 14-2386, 2014 WL 4359059 (7th Cir. Sept.
4, 2014) (“The harm to homosexuals (and . . . to their adopted
children) of being denied the right to marry is
considerable.”); Elrod v. Burns, 427 U.S. 347, 373 (1976)
(holding that a deprivation of constitutional rights, “for even
minimal periods of time, unquestionably constitutes
irreparable injury”). Additionally, were this case to be
reversed, notwithstanding our firm belief that such an
outcome is unlikely, the harm caused by the invalidation of
marriages that take place in the interim would primarily be
suffered by the couples whose marriages might be rendered
of uncertain legality and by their children—not by the state.


 1
   Individual justices, in orders issued from chambers, have expressed the
view that a state suffers irreparable injury when one of its laws is
enjoined. See 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.,
434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers). No opinion for
the Court adopts this view.
                           LATTA V. OTTER                                 9

On balance, we conclude that the second and third Nken
factors also support dissolution of the stay.

    Finally, we hold that the fourth factor governing issuance
or continuance of a stay—the public interest—militates
strongly in favor of dissolution of the stay. We repeat: by
denying certiorari on October 6, 2014, the Supreme Court has
allowed marriages to proceed in fourteen2 states across the
nation; all circuit courts of appeals to consider same-sex
marriage bans have invalidated those prohibitions as
unconstitutional; and this court has held that same-sex
marriage bans deprive gays and lesbians of their
constitutional rights. The public’s interest in equality of
treatment of persons deprived of important constitutional
rights thus also supports dissolution of the stay of the district
court’s order.

    Applying the four Nken factors discussed above, we hold
that Governor Otter is no longer entitled to a stay of the
district court’s order and we accordingly dissolve the stay
effective October 15, 2014. We decline to deny the plaintiffs
their constitutional rights any longer.

   Notwithstanding the above, we have determined to
exercise our discretion to afford the state a second
opportunity to obtain an emergency stay of our order from the
Supreme Court, even though we see no possible basis for


 2
   This figure represents the number of states in circuits directly affected
by the Supreme Court’s denial on October 6, 2014 of petitions arising
from challenges to state bans on same-sex marriage. We note that
thirty-three states as well as the District of Columbia either presently
allow same-sex marriages or are located in circuits affected by the
Supreme Court’s denials. This figure includes Idaho and Alaska.
10                    LATTA V. OTTER

such a stay. For that reason, our order of October 13, 2014 is
not made effective until 9 a.m. PDT (noon EST) on October
15, 2014. Otherwise we have determined that the stay of the
district court’s order enjoining enforcement of Idaho’s same-
sex marriage bans shall be dissolved and have entered the
order of this court to that effect.
