Compelled by Latta v. Otter, (9th Cir. Oct. 7, 2014), the district court ruled that the Fourteenth Amendment requires Alaska to license and recognize same-sex marriages, contrary to its Constitution and laws. But Latta’s imposition of heightened scrutiny on state marriage laws places this circuit “on the short end of a 10-2 split,” and contradicts the Supreme Court’s Windsor decision. SmithKline Beecham Corp. v. Abbott Labs., (9th Cir. 2014) (O’Scannlain, J., dissenting). Absent en banc hearing, Alaska’s appeal will be controlled by Latta, which effectively guarantees the invalidity of all man-woman marriage laws in this circuit. Resolution of an issue of that magnitude deserves the Court’s plenary consideration. Otherwise, Alaska’s citizens will be stripped of any ability to vindicate their “historic and essential authority to define the marital relation,” United States v. Windsor, (2013).
And on and on it goes.