BOISE — Idaho Gov. C.L. “Butch” Otter has filed a petition with the Ninth Circuit Court of Appeals requesting an “en banc” hearing by an 11-judge panel of the court in an appeal of a federal magistrate’s ruling striking down Idaho’s same-sex marriage ban.

Typically, appeals are heard by a three-judge panel selected from the 29 judges that make up the Ninth Circuit.

In most circuits, an en banc hearing means all 15 of the circuit’s judges hear the case, rather than just a three-judge panel. But because of the size the Ninth Circuit, an en banc hearing consists of an 11-judge panel — the chief judge and 10 others selected by random draw.

“Because the marriage issue is so passionately contested and so divisive among the citizenry, the perception of the legitimacy of this court’s resolution of it must be of paramount concern,” attorneys for the governor argue in their motion.

“A decision by an 11-judge panel stands far higher and stronger than does a decision by a three-judge panel, just as a decision by a three-judge panel stands far higher and stronger than does a decision by a single judge,” they argued.

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Either party can request that any decision by a three-judge panel be re-considered by the larger panel, and they can also appeal a three-judge panel’s ruling directly to the U.S. Supreme Court.

In April, the state of Michigan asked the Sixth Circuit Court of Appeals for an “en banc” hearing on its appeal of a federal judge’s ruling striking down that state’s same-sex marriage ban. The Michigan request was denied.

The And in the Idaho challenge, Latta v. Otter, the Ninth Circuit has scheduled arguments in the appeal for the week of September 8.

The Ninth Circuit court has scheduled arguments in the appeal for the week of September 8.

Case archives: Latta v. Otter.