Idaho defends same-sex marriage ban in federal court

BOISE – Lawyers for the state of Idaho urged a federal judge on Monday to uphold Idaho’s ban on same-sex marriages, saying it benefits children.

“Idaho has sufficiently good reasons for maintaining the man-woman marriage institution,” Thomas Perry, attorney for Gov. Butch Otter, told the court. “When you look at benefits, what more compelling interest does the state of Idaho have than securing an ideal child-rearing environment for future generations?”

Lawyers for the state argued that federal courts in 10 other states were wrong when they overturned bans on same-sex marriage as unconstitutional.

In the front row of the audience, one of the plaintiffs in the case cried silent tears. “We have a 4-year-old son together,” Shelia Robertson explained afterward, holding hands with partner Andrea Altmayer. “We’ve been together for 16 years, and it took us a long time, it was a very careful decision for us to have our boy. We love our boy. … The fact that I don’t have any rights to him at all – it’s frightening every day.”

The two are among four Idaho couples who sued to overturn Idaho’s constitutional ban on same-sex marriage, and its ban on recognition of legal marriages from other states. They, along with another lesbian couple, applied for marriage licenses in Idaho in November and were rejected; two days later, the lawsuit was filed. The other two same-sex couples were legally married in California and New York, but Idaho doesn’t recognize their unions.

U.S. Magistrate Judge Candy Dale questioned the state’s attorneys about their reliance on the for-the-children argument for upholding the ban. She noted repeatedly that when couples get marriage licenses in Idaho, “They don’t have to submit anything to prove that they intend to have children.”

Perry said Idahoans wanted to uphold and strengthen the traditional institution that leads to procreation, even if not every marriage results in children.

Deborah Ferguson, attorney for the four couples, said, “The state can’t select a preferred group of Idaho families for special preference and recognition. … The legal interest is for all of Idaho’s families, and all of Idaho’s children, whether they’re raised by same-sex parents, stepparents, adoptive parents or grandparents.”

Since the U.S. Supreme Court last summer struck down the federal Defense of Marriage Act, or DOMA, saying it violated constitutional guarantees of equal protection and due process, federal courts in 10 states have ruled in favor of same-sex marriage.

But Perry and deputy Idaho Attorney General Scott Zanzig said those decisions should have deferred to a 1972 U.S. Supreme Court decision in a Minnesota case that said the Constitution’s equal-protection and due-process guarantees didn’t grant the right to marry to two men. That case, Baker v. Nelson, came long before this year’s Windsor decision, the case that prompted the courts in other states to overturn bans on same-sex marriage.

The judge took the arguments under advisement, and said she’ll rule soon.

However the decision comes down, the losing side is expected to appeal.