                                                                  FILED
                              FOR PUBLICATION                     OCT 15 2014

                                                               MOLLY C. DWYER, CLERK
                   UNITED STATES COURT OF APPEALS               U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT

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



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

  v.

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

Before: REINHARDT, GOULD, and BERZON, Circuit Judges.

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 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

                                           3
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. 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

                                           4
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

                                           5
seven of the same-sex marriage cases that were pending before it, including

Herbert. As a result of the 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

                                           6
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. 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

       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.

                                              7
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. 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

      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
                                                                         (continued...)
                                           8
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 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.

      2
        (...continued)
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.

                                            9
