Otter: Supreme Court should hear Idaho’s input before deciding on gay marriage

BOISE – Idaho Gov. Butch Otter believes the state’s arguments against gay marriage are so compelling and comprehensive that the U.S. Supreme Court should wait until it gets Idaho’s case before deciding on the issue.

In arguments filed with the nation’s highest court, lawyers for Otter said waiting for Idaho’s case would help Supreme Court justices resolve “the marriage-litigation wave in all respects.”

Attorneys Gene Schaerr and Tom Perry filed those arguments in a friend-of-the-court brief for a petition to have the Supreme Court hear a same-sex marriage case out of the 6th U.S. Circuit Court of Appeals.

Otter lists several reasons why he thinks Idaho’s case is the “best vehicle” for the whole same-sex marriage issue to be decided. Among them: Idaho’s includes both the question of in-state marriages and recognition of out-of-state marriages; it would test the 9th U.S. Circuit Court of Appeals’ application of a heightened standard of scrutiny for discrimination based on sexual orientation; it brings up religious liberty issues; and Idaho officials, unlike those in many states, have mounted a vigorous defense of their ban on gay marriage.

Otter’s legal brief cites “the enormous societal risks accompanying a genderless-marriage regime,” and says, “Common sense and a wealth of social-science data teach that children do best emotionally, socially, intellectually and economically when reared in an intact home by both biological parents.”

Idaho voters passed a constitutional amendment in 2006 banning gay marriage, civil unions or any other form of state recognition of relationships other than those between a man and a woman. A federal court overturned Idaho’s ban last May, ruling it violated the U.S. Constitution by discriminating against same-sex couples. Idaho appealed to the 9th Circuit but lost there as well.

The state currently has a petition pending at the 9th Circuit asking for reconsideration. Unless that petition is granted within the next few days, Otter’s lawyers wrote in their Supreme Court brief, Otter and Idaho Attorney General Lawrence Wasden will file a petition on Jan. 5 to appeal to the U.S. Supreme Court. So, they argue, Idaho’s case will “likely be before the Court in a very few days.”

Deborah Ferguson, the Boise attorney who represented four Idaho same-sex couples who successfully sued to overturn the law, said her clients would oppose a petition to have the Idaho case heard by the Supreme Court.

The 9th Circuit “correctly decided the marriage equality issue,” she said. Ferguson added, “The Supreme Court has previously denied petitions where state marriage bans have been struck down.”

Idaho’s case was brought by four lesbian couples, two of whom sought recognition from Idaho for their legal marriages in other states, and two of whom sought to marry but were turned down for marriage licenses. Both couples have since wed; same-sex marriage in Idaho became legal on Oct. 15 as a result of the case.

Otter’s office had no comment Tuesday on his latest court filing.

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