Susan Latta v. C. L. OTTER, “Butch”; Governor of the State of Idaho, in his official capacity

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUSAN LATTA; TRACI EHLERS; LORI
WATSEN; SHARENE WATSEN;
SHELIA ROBERTSON; ANDREA
ALTMAYER; AMBER BEIERLE;
RACHAEL ROBERTSON,
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.
No. 14-35420
D.C. No.
1:13-cv-00482-
CWD

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LATTA V. OTTER 2
SUSAN LATTA; TRACI EHLERS; LORI
WATSEN; SHARENE WATSEN;
SHELIA ROBERTSON; ANDREA
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.
No. 14-35421
D.C. No.
1:13-cv-00482-
CWD

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LATTA V. OTTER 3
BEVERLY SEVCIK; MARY
BARANOVICH; ANTIOCO CARRILLO;
THEODORE SMALL; KAREN GOODY;
KAREN VIBE; FLETCHER WHITWELL;
GREG FLAMER; MIKYLA MILLER;
KATRINA MILLER; ADELE
TERRANOVA; TARA NEWBERRY;
CAREN CAFFERATA-JENKINS;
FARRELL CAFFERATA-JENKINS;
MEGAN LANZ; SARA GEIGER,
Plaintiffs-Appellants,
v.
BRIAN SANDOVAL, in his official
capacity as Governor of the State of
Nevada; DIANA ALBA, in her official
capacity as the County Clerk and
Commissioner of Civil Marriages for
Clark County, Nevada; AMY
HARVEY, in her official capacity as
the County Clerk and Commissioner
of Civil Marriages for Washoe
County, Nevada; ALAN GLOVER, in
his official capacity as the Clerk
Recorder for Carson City, Nevada,
Defendants-Appellees,
and
COALITION FOR THE PROTECTION OF
MARRIAGE,
Intervenor-Defendant–Appellee.
No. 12-17668
D.C. No.
2:12-cv-00578-
RCJ-PAL
ORDER

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LATTA V. OTTER 4
Filed January 9, 2015
Before: Stephen Reinhardt, Ronald M. Gould,
and Marsha S. Berzon, Circuit Judges.
Order;
Dissent by Judge O’Scannlain
SUMMARY*
Civil Rights
The panel denied the petitions for rehearing en banc on
behalf of the court.
In an opinion filed on 10/7/14, the panel held that Idaho
and Nevada laws that prevent same-sex couples from
marrying and which refuse to recognize same-sex marriages
validly performed elsewhere, violate the Equal Protection
Clause of the Fourteenth Amendment.
Dissenting from the denial of rehearing en banc, Judge
O’Scannlain, joined by Judges Rawlinson and Bea, stated that
the panel’s opinion neglected to address issues raised in a
conflicting Sixth Circuit opinion, overlooked binding
Supreme Court precedent, failed to respect bedrock principles
of democratic self-governance, and undermined the
Constitution’s commitment to federalism.
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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LATTA V. OTTER 5
ORDER
The panel has voted to deny the petitions for rehearing en
banc.
The full court was advised of the petitions for rehearing
en banc. A judge requested a vote on whether to rehear the
matter en banc. The matter failed to receive a majority of the
votes of the nonrecused active judges in favor of en banc
reconsideration. Fed. R. App. P. 35.
The petitions for rehearing en banc are DENIED.
O’SCANNLAIN, Circuit Judge, joined by RAWLINSON and
BEA, Circuit Judges, dissenting from the denial of rehearing
en banc:
One month after the panel in these cases struck down the
traditional marriage laws of Idaho and Nevada, the Sixth
Circuit upheld the essentially identical laws of Michigan,
Ohio, Tennessee, and Kentucky. See DeBoer v. Snyder,
772 F.3d 388 (6th Cir. 2014). Clearly the same-sex marriage
debate is not over. Indeed, not only does the debate now
divide the federal circuit courts and state legislatures, but it
continues to divide the American public.1 And, of course, the
1 See, e.g., http://www.nbcnews.com/politics/elections/2014/US/house/
exitpoll (showing that in exit polling at the November 2014 election,
respondents were equally divided, 48%–48%, on the question of whether
same-sex marriage should be legally recognized in their state).

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LATTA V. OTTER 6
Supreme Court has not yet decided the issue, notwithstanding
innuendo in the panel’s opinion.2
Thoughtful, dedicated jurists who strive to reach the
correct outcome—including my colleagues on the panel
here—have considered this issue and arrived at contrary
results. This makes clear that—regardless of one’s opinion
on the merits of the politically charged and controversial
issues raised by these cases—we are presented with a
“question of exceptional importance” that should have been
reviewed by an en banc panel. See F.R.A.P. 35(a). Indeed,
if for no other reason, we should have reheard these cases in
The debate even divides the globe—and the DeBoer majority is in
agreement with one of the world’s most prominent human rights’
tribunals. Only a few months ago, the European Court of Human Rights,
hardly a hotbed of hardline conservatism, made clear that the European
Convention for the Protection of Human Rights and Fundamental
Freedom “enshrines the traditional concept of marriage as being between
a man and a woman,” and “cannot be interpreted as imposing an
obligation on Contracting States to grant same-sex couples access to
marriage.” Hämäläinen v. Finland, No. 37359/09, HUDOC, at *18, *24
(Eur.Ct.H.R. July 16, 2014), available at http://hudoc.echr.coe.int/
sites/eng/pages/search.aspx?i=001-145768#{"itemid":["001-145768"]};
see also id. at *19 (recognizing that “it cannot be said that there exists any
European consensus on allowing same-sex marriages”).
Notably, even the dissenters on the particular issue before the court—
recognition of a married person’s change in gender identity—agreed that
“States have a legitimate interest in protecting marriage in the traditional
sense by legally reserving marriage to heterosexual partners.” Id. at *34
(Joint Dissenting Opinion of Judges Sajó, Keller, and Lemmens).
2 What the Supreme Court has decided is that the federal courts should
not intrude, as the panel does here, on the choices of state electorates
regarding whether to define marriage as a male-female union. Baker v.
Nelson, 409 U.S. 810 (1972); see Part I, infra.

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LATTA V. OTTER 7
order to consider the arguments of our colleagues on the Sixth
Circuit, who, reviewing the same question raised here, arrived
at the opposite result. See DeBoer, 772 F.3d 388. Whether
my colleagues agree or disagree with the DeBoer majority, at
the very least, the panel should have granted rehearing to
address the points raised in that opinion. Instead, we have
utterly ignored another circuit’s reasoned contribution to the
debate. Such a clear circuit split on such an exceptionally
important issue demands en banc review.3
Because the panel opinion neglects to address the issues
raised in the conflicting Sixth Circuit opinion, and
1) overlooks binding Supreme Court precedent, 2) fails to
respect bedrock principles of democratic self-governance, and
3) ignores the adverse implications of its opinion on our
federal structure, I must respectfully dissent from our
decision not to rehear these cases en banc.
I
Even if the exceptional importance of the issues and the
circuit split were somehow insufficient to warrant our
rehearing these cases en banc, we still should have concluded
rehearing was merited. The panel fails to follow the Supreme
Court’s precedential command that federal courts must avoid
substituting their own definition of marriage for that adopted
3 See F.R.A.P. 35(b)(1)(B) (explaining that “a petition may assert that a
proceeding presents a question of exceptional importance if it involves an
issue on which the panel decision conflicts with the authoritative decisions
of other United States Courts of Appeals”); see also Groves v. Ring Screw
Works, 498 U.S. 168, 172 n.8 (1990) (citing “a square conflict in the
Circuits,” as grounds for making rehearing en banc “appropriate”); Ninth
Circuit Rule 35-1 (explaining that a direct conflict with another court of
appeals “is an appropriate ground for petitioning for rehearing en banc”).

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LATTA V. OTTER 8
by the states’ citizenry. By refusing to rectify this error, we
let stand an impermissible judicial intrusion into a debate
reserved to the states’ political processes.
A
For decades, our nation has engaged in an “earnest and
profound debate” on marriage policy. See Washington v.
Glucksberg, 521 U.S. 702, 735 (1997) (praising the American
public’s on-going conversation on the “morality, legality, and
practicality of physician-assisted suicide” and ultimately
declining to interfere); see also Hollingsworth v. Perry,
133 S. Ct. 2652, 2659 (2013) (“The public is currently
engaged in an active political debate over whether same-sex
couples should be allowed to marry.”). State by state,
citizens have considered the issue of same-sex marriage and,
through legislation, popular referendum, or constitutional
amendment, voiced their views on this question of immense
public importance.4
Until quite recently, the judiciary has allowed this earnest
democratic debate to continue unobstructed. Forty-two years
ago, the Supreme Court dismissed an appeal from a
Minnesota Supreme Court decision, Baker v. Nelson, which
held that “[t]he equal protection clause of the Fourteenth
Amendment, like the due process clause, is not offended by
the state’s classification of persons authorized to marry.”
191 N.W.2d 185, 187 (Minn. 1971) (emphasis added).
4 To date, thirteen states and the District of Columbia have extended the
traditional definition of marriage to include same-sex couples by statute
or ballot initiative. See infra footnote 9. Many other states, including
Idaho and Nevada, have used their democratic processes to retain the
traditional definition of marriage.

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LATTA V. OTTER 9
Dismissing the plaintiffs’ appeal “for want of a substantial
federal question,” 409 U.S. at 810 (emphasis added), the
Baker Court confirmed that the Constitution commits
questions of marriage policy to the citizens of each state, and
that absent exceptional circumstances, federal courts should
resist the temptation to interfere with a state marriage
regulation.
This is not to say that a state’s “powers to regulate
marriage are unlimited notwithstanding the commands of the
Fourteenth Amendment.” Loving v. Virginia, 388 U.S. 1, 7
(1967). There are clearly exceptional circumstances in which
judicial interference is needed—no more so than when a
husband and wife face criminal sanctions merely for marrying
when they happen to be of different races. See id.
But while “invidious racial discriminations” warranted
judicial action in Loving v. Virginia, no such discrimination
is implicated here.5 Indeed, to argue that Loving controls here
requires asserting that the Supreme Court forgot about Loving
only five years later when it decided Baker. If the panel had
any lingering doubts as to whether judicial interference is
appropriate, Baker makes clear that it is not.
B
Loving holds that “restricting the freedom to marry solely
because of racial classifications violates the central meaning
of the Equal Protection Clause” and that the “Fourteenth
Amendment requires that the freedom of choice to marry not
5 Indeed, the panel majority—though not Judge Reinhardt, see Latta v.
Otter, No. 14-35420, slip op. at 1 (9th Cir. Oct. 7, 2014) (Reinhardt, J.,
concurring)—does not rest its decision on Loving.

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LATTA V. OTTER 10
be restricted by invidious racial discriminations.” Loving,
388 U.S. at 12. Thus, Loving stands as a clear prohibition on
racial discrimination in laws defining and regulating
marriage, but it simply does not follow that Loving also
somehow prevents the states from defining marriage as a
union of a man and a woman.
Indeed state laws that define marriage as a union of a man
and a woman bear little resemblance to the Virginia statute
that criminalized Mildred and Richard Loving’s marriage
merely because Mildred was black and Richard was white.
Id. at 11. Virginia recognized that Mildred and Richard had
married in the District of Columbia, but “to maintain White
Supremacy,” id., the state legislature chose to punish them for
having the courage to do so.
Chief Justice Warren recognized that such punishment
contravened the constitutional command that “the freedom of
choice to marry not be restricted by invidious racial
discriminations.” Id. at 12. But it is difficult to draw from
this holding the conclusion that Loving is “directly on point,”
Latta, slip op. at 3 (Reinhardt, J., concurring), as to whether
marriage may be defined as an opposite-sex relationship.
Of course, states are not compelled to define marriage as
such an opposite-sex union—simply look to the many states
that, since Loving, have defined it by statute or popular vote
to extend to gay and lesbian couples.6 But states are also not
compelled by the federal Constitution to define marriage
differently than the “generally accepted” opposite-sex
relationship Mildred and Richard sought to enter in Loving.
See Loving, 388 U.S. at 11; cf. Bishop v. Smith, 760 F.3d
6 See infra note 9.

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LATTA V. OTTER 11
1070, 1108–09 (10th Cir. 2014) (Holmes, J., concurring)
(explaining that Oklahoma’s codification of marriage as an
opposite-sex relationship “cannot sensibly be depicted as
‘unusual’ where the State was simply exercising its age-old
police power to define marriage in the way that it, along with
every other State, always had” and noting that Oklahoma’s
law “formalized a definition that every State had employed
for almost all of American history, and it did so in a province
the states had always dominated”); Hämäläinen, No.
37359/09, HUDOC, at *19, *24 (explaining that the European
Convention does not impose an obligation to recognize same
sex marriage, and that only ten of the 47 member states of the
Council of Europe recognize such marriages).7 Loving states
that “[u]nder our Constitution, the freedom to marry or not
marry, a person of another race resides with the individual
and cannot be infringed by the State,” but it says nothing
about the states’ power to define marriage, as every state has
done for almost all of American history, as a male-female
relationship. Loving, 388 U.S. at 12.
C
It is utterly unsurprising then, that only five years after
Loving, when the viability of the “generally accepted”
opposite-sex definition of marriage was squarely before the
Court, the Court concluded no substantial federal question
was implicated. Baker, 409 U.S. 810. Such a conclusion was
7 Notwithstanding my views on the applicability of foreign law in the
analysis of constitutional terms, see Diarmuid F. O’Scannlain, What Role
Should Foreign Practice and Precedent Play in the Interpretation of
Domestic Law?, 80 NOTRE DAME L. REV. 1893 (2005), marriage is not
defined in the U.S. Constitution, and it is telling that the ECHR has left
such a fundamental issue to be resolved by member-states rather than via
judicial fiat.

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LATTA V. OTTER 12
completely consistent with Loving: there simply is no conflict
in holding both that the Constitution prohibits racial
restrictions on the right to enter marriage, and that the
Constitution is not offended by a state’s choice to define
marriage as an opposite-sex relationship.
Of course we cannot ignore Chief Justice Marshall’s
observation, as true as ever, that if “the Courts are to regard
the Constitution, and the Constitution is superior to any
ordinary act of the Legislature, the Constitution, and not such
ordinary act, must govern the case to which they both apply.”
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
We must ask, then: Is leaving the political process intact
here not an impermissible abdication of our “authority, and
indeed [] responsibility, to right fundamental wrongs left
excused by a majority of the electorate?” DeBoer, 772 F.3d
at 436–37 (Daughtrey, J., dissenting). Is this situation not
analogous to those, where, even while recognizing “that
certain matters requiring political judgments are best left to
the political branches,” we must ensure that courts and not the
political branches, “say what the law is?” Boumediene v.
Bush, 553 U.S. 723, 765 (2008) (citing Marbury, 5 U.S.
(1 Cranch) at 177).
Simply put, no. We are a Court of Appeals, not the
Supreme Court, and our obligation is to
adhere to the view that if the Court has
branded a question as unsubstantial, it remains
so except when doctrinal developments
indicate otherwise. . . . [T]he lower courts are
bound by summary decisions by th[e

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LATTA V. OTTER 13
Supreme] Court until such time as the Court
informs [them] that [they] are not.
Hicks v. Miranda, 422 U.S. 332, 344–45 (1975) (citations
omitted).
Far from avoiding our responsibilities, following Baker
here constitutes the only permissible exercise of our limited
authority—the eagerness of the panel members to pronounce
their views on the merits of same-sex marriage
notwithstanding.8 When the Supreme Court “concludes [an]
appeal should be dismissed because the constitutional
challenge” presented “was not a substantial one,” it makes a
precedential decision on the merits. Hicks, 422 U.S. at 344
(citing Ohio ex rel. Eaton v. Price, 360 U.S. 246, 247 (1959);
R. Stern & E. Gressman, Supreme Court Practice 197 (4th
ed. 1969); C. Wright, Law of Federal Courts 495 (2d ed.
1970)).
8 It is questionable whether judicial intrusion on the peoples’ political
choices is truly an effective means of advancing the same-sex marriage
cause. As one legal academic and same-sex marriage supporter explains:
Court victories are hollow victories for the LGBT
community, failing to deliver the societal respect they
seek, and in fact removing the opportunity for collective
expression of such respect through voluntary legislative
reform or popular referendum.
James G. Dwyer, Same-Sex Cynicism and the Self-Defeating Pursuit of
Social Acceptance Through Litigation, 68 S.M.U. L. REV. ___
(forthcoming 2015). Courts “cannot deliver the type of dignity that
comprises social respect”—in fact “a judicial victory obviates legislative
change, and therefore collective or majoritarian expression of respect.”
Id.

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LATTA V. OTTER 14
Indeed, when “a precedent of th[e Supreme] Court has
direct application in a case,” we must follow it even if it
“appears to rest on reasons rejected in some other line of
decisions.” Rodriguez de Quijas v. Shearson/AMEX, Inc.,
490 U.S. 477, 484 (1989). “[T]he Court of Appeals should
follow the case which directly controls, leaving to [the
Supreme] Court the prerogative of overruling its own
decisions.” Id. Baker is a precedential disposition on the
merits which Hicks and Rodriguez de Quijas make clear we
are not at liberty to disregard.
The panel ignores Rodriguez de Quijas and attempts to
turn the command of Hicks on its head. Rather than heeding
the clear statement that “the lower courts are bound by
summary decisions by th[e Supreme] Court until such time as
the Court informs [them] that [they] are not,” the panel
searches for “doctrinal developments” that, when interpreted
just so, imply that Baker is no longer good law. Apparently
the panel believes the Supreme Court, rather than speaking
clearly when it overrules dispositions on the merits,
“informs” the lower courts of an overruling with so many
winks and nods.
Unfortunately, the panel is not without company in its
approach. See, e.g., Baskin v. Bogan, 766 F.3d 648, 659–60
(7th Cir. 2014) (doctrinal developments preclude application
of Baker); Bostic v. Schaefer, 760 F.3d 352, 373–75 (4th Cir.
2014) (same); Bishop, 760 F.3d at 1079–81 (same); Kitchen
v. Herbert, 755 F.3d 1193, 1204–08 (10th Cir. 2014) (same).
Yet neither am I. See, e.g., DeBoer, 772 F.3d at 399–402
(Baker is still binding precedent); Massachusetts v. U.S.
Dep’t of Health & Human Servs., 682 F.3d 1, 8 (1st Cir.
2012) (same), cited in U. S. v. Windsor, 133 S. Ct. 2675,

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LATTA V. OTTER 15
2688, 2693 (2013); Conde-Vidal v. Garcia-Padilla, No.
14-1253 PG, 2014 WL 5361987, at *6 (D.P.R. Oct. 21, 2014)
(same); cf., Hämäläinen, No. 37359/09, HUDOC, at *24
(holding, like Baker, that same-sex marriage is an issue
reserved to the democratic process).
D
Wishing that Baker has been overruled, however, does not
make it so. Indeed, even if the panel’s tea-leaf-reading
approach to finding implicit overruling were viable, it still
could not plausibly argue that Baker has been abrogated. In
making the determination that “doctrinal developments”
indicate that the Court no longer views Baker as good law,
the panel relies on United States v. Windsor, 133 S. Ct. 2675,
Lawrence v. Texas, 539 U.S. 558 (2003), and Romer v. Evans,
517 U.S. 620 (1996). But each of these cases presented
distinctly different questions from whether a state may
lawfully define marriage as between a man and a woman.
1
In Windsor, the Court struck down a federal law that
intruded on a state’s prerogative to define marriage, what the
Court characterized as “‘virtually [an] exclusive province of
the States.’” Windsor, 133 S. Ct. at 2691 (quoting Sosna v.
Iowa, 418 U.S. 393, 303 (1975)). If anything, Windsor’s
emphasis on the unprecedented federal intrusion into the
states’ authority over domestic relations reaffirms Baker’s
conclusion that a state’s definition of marriage presents no
“substantial federal question.” Baker, 409 U.S. at 810. The
Windsor opinion expressly “confined [itself] to . . . lawful
marriages” recognized by other states and disavowed having

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LATTA V. OTTER 16
any effect on state laws which themselves regulate marriage.
Windsor, 133 S. Ct. at 2696.
2
Likewise, in Lawrence, the Court did not implicate Baker
when it struck down Texas’s criminal anti-sodomy law on the
ground that it interfered with personal autonomy. Like in
Windsor, the Lawrence Court expressly stated that it was not
deciding whether a state must recognize same-sex marriages.
See Lawrence, 539 U.S. at 578 (“The present case does not
involve . . . whether the government must give formal
recognition to any relationship that homosexual persons seek
to enter.”).
3
Similarly, Romer did not involve the definition of
marriage, but rather a Colorado constitutional amendment
that “nullifie[d] specific legal protections for [homosexuals]
in all transactions in housing, sale of real estate, insurance,
health and welfare services, private education, and
employment” as well as laws providing protection “from
discrimination by every level of Colorado government.”
Romer, 517 U.S. at 629. Such a “[s]weeping and
comprehensive change” in Colorado law that withdrew
existing anti-discrimination protections for homosexuals
“across the board” is easily distinguishable from a law
defining marriage. Id. at 627, 633; see also Kenji Yoshino,
The New Equal Protection, 124 HARV. L. REV. 747, 777–78
(2011) (noting that “the Court emphasized that Romer might
be a ticket good only for one day” as the amendment at issue
effectuated an “unprecedented” harm).

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LATTA V. OTTER 17
4
Windsor, Lawrence, and Romer simply do not limit the
states’ authority to define marriage and certainly do not
contradict Baker’s conclusion that the Constitution does not
require states to recognize same-sex marriage. See Bishop,
760 F.3d at 1104 (Holmes, J., concurring) (explaining that
state laws defining marriage as between an opposite-sex
couple are clearly distinguishable from those at issue in
Romer and Windsor as they neither “target[] the rights of a
minority in a dangerously expansive and novel fashion” as in
Romer, nor do they “stray[] from the historical territory of the
lawmaking sovereign just to eliminate privileges that a group
would otherwise receive,” as the federal law did in Windsor).
Our place in the federal judicial hierarchy carries with it
restrictions that, inconvenient as they may be to
implementing our policy choices, restrain and guide our
discretion. We cannot ignore our obligation to follow
Baker’s precedent.
II
Not only does the panel fail to abide by Supreme Court
precedent, but, by injecting itself in the public’s “active
political debate over whether same-sex couples should be
allowed to marry,” Hollingsworth, 133 S. Ct. at 2659, it acts
in a way Justice Kennedy has deemed “inconsistent with the
underlying premises of a responsible, functioning
democracy.” Schuette v. Coalition to Defend Affirmative
Action, 134 S. Ct. 1623, 1637 (2014) (plurality opinion).
Rather than allow further change “primarily [to] be made by
legislative revision and judicial interpretation of the existing
system,” the panel chooses to “leap ahead—revising (or even

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LATTA V. OTTER 18
discarding) the system by creating a new constitutional right
and taking over responsibility for refining it.” Dist.
Attorney’s Office for Third Judicial Dist. v. Osborne,
557 U.S. 52, 74 (2009). Such a leap should never be made
lightly, yet here the panel takes it without regard to the fact
that our country’s citizens have shown themselves quite
capable of “engag[ing] in serious, thoughtful examinations”
of the issue of same-sex marriage. Glucksberg, 521 U.S. at
719.
In some states, democratic majorities have enacted laws
that expand the traditional definition of marriage to include
same-sex relationships. See Windsor, 133 S. Ct. at 2710–11
(noting, for example, that in Maryland, voters approved a
measure, by a vote of 52% to 48%, establishing that
“Maryland’s civil marriage laws allow gay and lesbian
couples to obtain a civil marriage license”).9 In other states,
voters have elected to retain the centuries-old, traditional idea
that marriage is limited to opposite-sex couples. Id. (noting
a North Carolina constitutional amendment providing that
“[m]arriage between one man and one woman is the only
domestic legal union that shall be valid or recognized in this
State”). Indeed, in Maine, citizens voted to reject same-sex
marriage in 2009 (by a vote of 53% to 47%) only to change
course in 2012, voting to permit same-sex marriages by that
9 See also Cal. Fam. Code § 300 (permitting same-sex marriage); Conn.
Gen. Stat. Ann. § 46b-20a (same); Del. Code Ann. tit. 13, § 129 (same);
Haw. Rev. Stat. § 572-1 (same); 750 Ill. Comp. Stat. Ann. 5/212 (same);
Md. Code Ann., Fam. Law § 2-201 (same); Minn. Stat. Ann. § 517.01
(same); N.H. Rev. Stat. Ann. § 5-C:42 (same); N.Y. Dom. Rel. Law § 10
(same); R.I. Gen. Laws Ann. § 15-1-1 (same); V.T. Stat. Ann. tit. 15, § 8
(same); Wash. Rev. Code Ann. § 26.04.010 (same). If marriage is to be
extended to same-sex couples, our democratic institutions provide the
proper means to effect such an extension.

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LATTA V. OTTER 19
same margin. Id. It seems marriage-defining is a state-law
issue that the states are quite capably handling through
deliberation in their own state lawmaking processes.10
The panel’s opinion cuts short these “earnest and
profound debate[s],” silencing the voices of millions of
engaged and politically active citizens. Glucksberg, 521 U.S.
at 735. By doing so, the panel suggests that citizens of
Nevada and Idaho, indeed of the nation, are not capable of
having this conversation, or of reaching the “correct”
conclusion. But such a view eschews the very foundational
premises of democratic self-governance. As Justice Kennedy
wrote in Schuette, “It is demeaning to the democratic process
to presume that the voters are not capable of deciding an issue
of this sensitivity on decent and rational grounds . . . .
Freedom embraces the right, indeed the duty, to engage in a
rational, civic discourse in order to determine how best to
form a consensus to shape the destiny of the Nation and its
people.” Schuette, 134 S. Ct. at 1637.
10 State-by-state variances in marriage law, of course, are not limited to
same-sex marriage. For instance, states have different age requirements.
Compare Idaho Code Ann. § 32-202 (individuals must be 18 to marry
without parental consent), with Miss. Code. Ann. § 93-1-5 (individuals
must be 21). States also differ in their consanguinity requirements.
Compare Idaho Code Ann. § 32-206 (prohibiting marriages between first
cousins), with Cal. Fam. Code § 2200 (permitting such marriages). Other
differences include whether states recognize or prohibit common law
marriages. Compare Idaho Code Ann. § 32-201 (prohibiting common law
marriages), with Mont. Code Ann. § 40-1-403 (permitting such
marriages). Query if the panel’s holding nullifies such prohibitions as
well.

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LATTA V. OTTER 20
A
Nothing about the issue of same-sex marriage exempts it
from the general principle that it is the right of the people to
decide for themselves important issues of social policy. On
the contrary, the Court’s decision in Windsor recognizes the
importance to democratic self-government of letting the
People debate marriage policy. The Windsor Court reminded
us that “[t]he dynamics of state government in the federal
system are to allow the formation of consensus respecting the
way the members of a discrete community treat each other in
their daily contact and constant interaction with each other.”
Windsor, 133 S. Ct. at 2692.
Despite such express instruction from the High Court, the
panel assumes it is its right, indeed its duty to reach the
conclusion that it does. But recent developments suggest
otherwise. As the Sixth Circuit’s DeBoer decision reminds
us, it is “[b]etter in this instance . . . to allow change through
the customary political processes, in which the people, gay
and straight alike, become the heroes of their own stories by
meeting each other not as adversaries in a court system but as
fellow citizens seeking to resolve a new social issue in a fair-
minded way.” DeBoer, 772 F.3d at 421; see also
Garcia-Padilla, No. 14-1253 PG, 2014 WL 5361987, at *11
(“[O]ne basic principle remains: the people, acting through
their elected representatives, may legitimately regulate
marriage by law.”); Robicheaux v. Caldwell, 2 F.Supp.3d
910, 926–27 (E.D. La. 2014) (noting the importance of
respecting democratic voices).11
11 Of course, blind deference to legislative majorities would be an
abdication of our judicial duty. But, as explained in Part I, no such blind
deference occurs when inferior courts follow Supreme Court precedent

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LATTA V. OTTER 21
The healthy, spirited, and engaged debate over marriage
policy represents the virtues of democratic self-governance.
The panel’s opinion shuts down the debate, removing the
issue from the public square. In so doing, it reflects a
profound distrust in—or even a downright rejection of—our
constitutional structure. As the Court warned in Osborne,
this course of action “takes[s] the development of rules and
procedures in this area out of legislatures and state courts
shaping policy in a focused manner and turn[s] it over to
federal courts applying the broad parameters of the
[Fourteenth Amendment].” 557 U.S. at 56.
Justice Powell, dissenting in the noted death penalty case
Furman v. Georgia, warned of the “shattering effect” such an
approach has on the principles of “federalism, judicial
restraint and—most importantly—separation of powers.”
408 U.S. 238, 417 (1972) (Powell, J., dissenting). Justice
Powell acknowledged that in situations where, as here, “the
language of the applicable provision provides great leeway
and where the underlying social policies are felt to be of vital
importance, the temptation to read personal preference into
the Constitution is understandably great.” Id. Nevertheless,
he maintained that despite the temptation, “it is not the
business of [courts] to pronounce policy.” Id. Here, the
panel’s inability to resist such temptation reflects a “lack of
faith and confidence in the democratic process.” Id. at
464–65.
directly on point, the states have codified rational and long-accepted
definitions of marriage, and the legislative process has shown itself to be
capable of giving voice (and winning results) to both sides of the
heretofore on-going conversation.

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LATTA V. OTTER 22
Federal courts have a “proper—and properly limited—
role” in a democratic society. Allen v. Wright, 468 U.S. 737,
750 (1984) (quoting Warth v. Seldin, 422 U.S. 490, 498
(1975)). When we artificially expand our role, not only does
it flout the Constitution, it also has deleterious effects on the
civic health of our country. We should not be so quick to
presume we know what’s best. Judicial humility in service of
democratic self-rule is reason alone to rehear these cases en
banc.
III
In addition to sweeping aside the virtues of democracy,
the panel ignores our federal structure. The panel fails to
recognize the principle that marriage law, like other areas of
domestic relations, has been and should continue to be an
area committed to the states. See Windsor, 133 S. Ct. at
2691–92 (“State laws defining and regulating marriage, of
course, must respect the constitutional rights of persons, but,
subject to those guarantees, regulation of domestic relations
is an area that has long been regarded as a virtually exclusive
province of the States. . . . [T]he incidents, benefits, and
obligations of marriage are uniform for all married couples
within each State, though they may vary, subject to
constitutional guarantees, from one State to the next.”
(emphasis added)); U.S. Dep’t of Health & Human Servs.,
682 F.3d at 12 (explaining that “DOMA intrudes extensively
into a realm that has from the start of the nation been
primarily confided to state regulation—domestic relations
and the definition and incidents of lawful marriage”
(emphasis added)). The panel’s opinion ignores this
important aspect of Our Federalism.

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LATTA V. OTTER 23
A
“Long ago,” the Supreme Court “observed that ‘the whole
subject of the domestic relations of husband and wife, parent
and child, belongs to the laws of the States and not to the laws
of the United States.’” Elk Grove Unified Sch. Dist. v.
Newdow, 542 U.S. 1, 12 (2004) (quoting In re Burrus,
136 U.S. 586, 593–94 (1890)). Indeed, for over a century,
federal courts have recognized that actions concerning
domestic relations are entrusted to state legislatures and state
courts.
In the latest Supreme Court opinion addressing the issue
of same-sex marriage, the Court gave a ringing endorsement
of the central role of the states in fashioning their own
marriage policy. Windsor, 133 S. Ct. at 2689–93. “By
history and tradition,” the Court stated in Windsor, “the
definition and regulation of marriage . . . has been treated as
being within the authority and realm of the separate States.”
Id. at 2689–90. Indeed, the Court continued, “[t]he
recognition of civil marriages is central to state domestic
relations law applicable to its residents and citizens.” Id. at
2691 (emphasis added); see also id. (“The definition of
marriage is the foundation of the State’s broader authority to
regulate the subject of domestic relations . . . .”); Williams v.
North Carolina, 317 U.S. 287, 298 (1942) (“Each state as a
sovereign has a rightful and legitimate concern in the marital
status of persons domiciled within its borders.”).
Thus, in Windsor, the Court struck down the federal
intrusion into a realm committed to the states, emphasizing
the exclusive role that states have in regulating marriage law.
Windsor, 133 S. Ct. at 2691. Windsor’s holding and
reasoning show an unquestionable attention to “the concerns

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LATTA V. OTTER 24
for state diversity and state sovereignty” in the marriage
policy context. Id. at 2697 (Roberts, C.J., dissenting). The
panel’s opinion ignores the “undeniable” conclusion that
Windsor’s “judgment is based on federalism.” Id.
B
Windsor was correct in resting its holding on federalism.
In striking down the federal legislature’s intrusion into this
area of law committed to the states, it held Congress to the
same standards to which federal courts have long adhered.
Simply stated: the federal judiciary has affirmatively sought
to avoid encroachments into state domestic relations policy.
Federal judges have used various doctrinal mechanisms
to refrain from intruding into the uncharted waters of state
domestic relations law. As the Court explained in
Ankenbrandt v. Richards, courts have often avoided such an
intrusion by invoking the “domestic relations exception” to
federal jurisdiction under the diversity statute. 504 U.S. 689,
693 (1992). Other courts have extended the exception to
federal question jurisdiction.12 See, e.g., Jones v. Brennan,
465 F.3d 304, 306–08 (7th Cir. 2006). And others have
invoked abstention doctrines to avoid state-law domestic
relations issues. See, e.g., Moore v. Sims, 442 U.S. 415,
423–35 (1979); Coats v. Woods, 819 F.2d 236, 237 (9th Cir.
1987) (“This case, while raising constitutional issues, is at its
12 Recent scholarship has even argued that federal courts may not have
Article III jurisdiction over cases involving marital status determinations.
See Steven G. Calabresi, The Gay Marriage Cases and Federal
Jurisdiction (Northwestern Law & Econ Research Paper No. 14-18;
Northwestern Pub. Law Research Paper No. 14-50, 2014), available at
http://ssrn.com/abstract=2505514.

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LATTA V. OTTER 25
core a child custody dispute.”); Peterson v. Babbitt, 708 F.2d
465, 466 (9th Cir. 1983) (“There is no subject matter
jurisdiction over these types of domestic disputes.”).13
In one notable case, the Supreme Court refrained from
ruling on the constitutionality of the Pledge of Allegiance—
certainly a question of key constitutional import—because
doing so would have required rejecting a state court order
regarding parental rights of the plaintiff. Newdow, 542 U.S.
at 17. Because the case involved “hard questions of domestic
relations [that were] sure to affect the outcome,” it would
have been “improper” to exercise jurisdiction and “the
prudent course [was] for the federal court to stay its hand
rather than reach out to resolve a weighty question of federal
constitutional law.” Id.; see also Smith v. Huckabee, 154 F.
App’x 552, 555 (8th Cir. 2005) (citing Newdow in declining
to exercise jurisdiction over questions implicating state
domestic relations law); United States v. MacPhail, 149 F.
App’x 449, 456 (6th Cir. 2005) (same).
In short, through various doctrinal mechanisms, federal
courts have avoided the kind of federal intrusion into state
13 Though the domestic relations exception itself is typically confined to
divorce or child custody cases, the Ankenbrandt Court acknowledged that
the exception could be broadly applied when appropriate for the federal
courts to decline to hear a case involving “elements of the domestic
relationship,” Ankenbrandt, 504 U.S. at 705, even when divorce or child
custody is not strictly at issue. “This would be so when a case presents
‘difficult questions of state law bearing on policy problems of substantial
public import whose importance transcends the result in the case then at
bar.’” Id. (citation omitted). Undoubtedly, these are such cases.

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LATTA V. OTTER 26
domestic relations law exemplified by the panel’s opinion.14
Whatever the doctrinal tool, the result is the same: because
family law issues—including the definition and recognition
of marriage—are committed to the states, federal courts ought
to refrain from intruding into this core area of state
sovereignty.
Here, our court need not decide which of these many
potential sources of restraint we should draw from. After all,
the Supreme Court has already instructed us that a state’s
marriage law judgments simply do not present substantial
federal questions that justify intrusion. Baker, 409 U.S. at
810.
The panel’s failure to follow Baker’s command upsets our
federal structure and warrants en banc reconsideration.
IV
The panel’s opinion ignores the wisdom of a sister circuit,
disregards binding Supreme Court precedent, intrudes on
democratic self-governance, and undermines our
14 The Court has also noted, of course, that “rare instances arise in which
it is necessary to answer a substantial federal question that transcends or
exists apart from the family law issue.” Newdow, 542 U.S. at 12–13
(emphasis added) (citation omitted). This was the case, for instance, in
Palmore v. Sidoti and Loving v. Virginia. See Palmore v. Sidoti, 466 U.S.
429 (1984); Loving, 388 U.S. 1. In both Palmore and Loving, the Court
struck down state laws that “raise[d] important federal concerns arising
from the Constitution’s commitment to eradicating discrimination based
on race.” Palmore, 466 U.S. at 432. Here, however, not only is the
Constitution’s commitment to eradicating discrimination based on race not
present, but there is no “substantial federal question that transcends or
exists apart from the family law issue.”

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LATTA V. OTTER 27
Constitution’s commitment to federalism. I respectfully
dissent from our regrettable failure to rehear these cases en
banc.

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