BOISE – Idaho officials say they have new hope that the state’s same-sex marriage case could be taken up by the U.S. Supreme Court, after Thursday’s appeals court ruling upholding bans on gay marriage in four states.
The 6th Circuit ruling was the first federal appeals court to rule that way, after a string of rulings unanimously going the opposite direction.
Those have included Idaho’s case; the 9th Circuit U.S. Court of Appeals rejected Idaho’s appeal and overturned the state’s ban on same-sex marriage last month. Gay couples have been legally able to marry in the state since Oct. 15, and the state now recognizes marriages of same-sex couples that took place legally in other states.
Thursday’s ruling, which upheld same-sex marriage bans in Kentucky, Michigan, Ohio and Tennessee, is “significant because it establishes a conflict among the circuits, and creates a situation in which the Supreme Court is likely going to have to resolve the issue,” said Todd Dvorak, spokesman for Idaho Attorney General Lawrence Wasden. “Because of that, we are moving forward with our plans to file a petition for a writ of certiorari with the U.S. Supreme Court.”
That’s the process for asking the high court to take up an appeal. Dvorak said the state has until Jan. 5 to file that petition.
Idaho Gov. Butch Otter, who already has a petition pending with the 9th Circuit asking that court to reconsider its ruling, welcomed the 6th Circuit ruling.
“This decision reinforces many of the same points I have made in federal court here and in the 9th Circuit – that defining marriage is a states’ rights issue under the Tenth Amendment,” Otter said in a statement. “I am firmly committed to defending the will of Idaho voters as expressed in 2006.”
That year, Idaho voters approved an amendment to the state constitution banning state recognition of any relationship other than a marriage between a man and a woman. That banned not only same-sex marriage, but also civil unions and domestic partnerships; it was among the nation’s most sweeping provisions. It even prompted the Idaho State Veterans Cemetery to refuse to bury same-sex veterans with their spouses, a position that’s now been reversed.
U.S. Magistrate Judge Candy Dale ruled in May that Idaho’s provision violated the U.S. Constitution’s equal protection guarantees, discriminating against gay couples in the state. The state appealed to the 9th Circuit, but lost.
Otter has continued to press the case, even forcefully speaking out against same-sex marriage in his election-night victory speech to GOP supporters late Tuesday.
“I’m going to continue that fight as long as I possibly can,” Otter declared to cheers and applause.
“We can’t give up on our values,” he said. “If they want to change the other 49 states, go ahead, that’s not going to bother me, but why should we change? Why should we leave our values? Why should we leave our moral principles because everybody else is? That isn’t what the founders want, that isn’t what the Creator wanted, and I don’t believe that’s what the state of Idaho wants, so we’re staying there.”
“It was a strange statement to make at election night headquarters,” said Jim Weatherby, longtime Idaho political observer and a professor emeritus at Boise State University. “But I guess it does confirm that it wasn’t just Otter playing to his base in prior statements – he really believes that.”
University of Idaho law professor Liz Brandt said the 6th Circuit’s ruling has no direct impact on Idaho. But it does increase the likelihood the U.S. Supreme Court will take up the issue.
Brandt said the high court could choose to just review the 6th Circuit ruling, or to look at multiple rulings that came down on either side of the issue – potentially including Idaho’s.
Even if that happened, same-sex marriage likely would remain legal in Idaho while the appeals are pending, she said.
Subscribe to the Morning Review newsletter
Get the day's top headlines delivered to your inbox every morning by subscribing to our newsletter