Update 10/10: The stay has been lifted and application denied, without explanation. Marriages in Idaho are back on, and we’ll have to wait until some time in the future (never?) to settle the question of law described below.

Here’s something we’ll be following, although it doesn’t (yet) have a direct effect on the Hoosier state. Yesterday, Anthony Kennedy issued an emergency stay in Idaho’s marriage case.

You might wonder why he would do that, just two days after the Court rejected appeals from three other Circuits.

The reason may lie with how Idaho framed its petition, and if that’s the case, we are in for one hell of an important Supreme Court battle.

Let’s start with some history on Kennedy and gay rights. It’s a happy coincidence that Kennedy received this petition; he’s the Justice assigned to emergency orders for Idaho. But Kennedy is also undoubtedly The Man when it comes to gay rights. He wrote the majority opinions in Romer v. Evans (striking down a Colorado amendment which banned all laws seeking to protect gays), Lawrence v. Texas (striking down anti-sodomy laws) and United States v. Windsor (striking down the Defense of Marriage Act).

In none of those cases did the Court specify what level of scrutiny should be applied to laws involving sexual orientation. In Romer, the issue was moot, as the law would have failed even rational basis review. In Lawrence and especially Windsor, some have suggested that intermediate scrutiny was effectively applied, but Kennedy was careful to keep the language vague enough as to be unclear. Despite the ambiguity, many scholars feel that Kennedy’s decisions have made it clear that laws regarding sexual orientation are subject to intermediate (or “heightened” – see note below) scrutiny. A three-judge panel with the Ninth Circuit ruled to that effect in SmithKline v. Abbott (rehearing en banc was denied), based on the language in Windsor.

With that background information put away, why is this order important? Two reasons.

First, whether or not laws based on sexual orientation are subject to intermediate scrutiny will have wide ranging effects on many more issues than just marriage. Under this burden, the government must show that a law furthers an important governmental interest in a way that is substantially related to that interest, as opposed to the default rational basis review, which simply requires that the law be rationally related to a legitimate government interest. Furthermore, like strict scrutiny, intermediate scrutiny places the burden of defending the law on the government, whereas rational basis review places the burden on the party challenging the law. These differences are often critical – many discriminatory laws which are constitutional under the rational basis review will not meet the higher burden of intermediate scrutiny.

Second, as the Court stands, it is almost certain that four justices (Roberts, Scalia, Thomas and Alito) would vote to apply rational basis, and four (Ginbsurg, Breyer, Sotomayor and Kagan) would apply heightened scrutiny (see note below). Kennedy is the wild card on gay rights (actually, on many issues). It’s been said that, if Bill Clinton was the first black President, then Anthony Kennedy is surely the first gay Justice, as he has been the driving force of gradually changing the law to fully accept homosexuality on the same legal level as heterosexuality. Up until now, he has kept close to the vest his opinion on which level of Constitutional scrutiny laws concerning sexual orientation should be tested against. This order could be him tipping his hand.

Coming full circle back to the petition, Idaho has essentially argued that there is now a split among the Circuits regarding whether to use rational basis or intermediate scrutiny, and begged the Court to step in and settle the question. It is this issue which makes Idaho’s appeal unique. Kennedy’s order could signal that he’s finally ready to state, once and for all, where he stands on this issue. Sexual orientation jurisprudence for many years to come will be determined by where that is.

Note – “heightened scrutiny” and “intermediate scrutiny” are used interchangeably here, but it’s not entirely clear they should be. The third level of review, strict scrutiny, requires that the government prove a law is narrowly tailored (cf. “substantially related”) to a compelling government interest (cf. “important government interest”). It’s entirely possible that courts which have used the phrase “heightened scrutiny” are not referring to intermediate scrutiny, but to a general level of scrutiny above rational basis which may include both/either intermediate and/or strict scrutiny, or inhabit some gray area between the two. While academically interesting, this discussion is probably effectively irrelevant for this particular issue, as either one of the “heightened” tests would likely invalidate discriminatory laws.