Idaho same-sex unions still illegal pending appeal in 9th Circuit

BOISE – With Idaho’s same-sex marriage case still pending at the 9th U.S. Circuit Court of Appeals, attorneys in the case were surprised Monday that the U.S. Supreme Court denied seven petitions from five states seeking a high court decision on the matter.

The Supreme Court’s rejection of appeals from Utah, Indiana, Oklahoma, Virginia and Wisconsin clears the way for gay couples to legally marry in those states – plus in six other states that are in the same circuits. That makes same-sex marriage legal in 30 states and the District of Columbia; it’s already legal in Washington.

“I think everyone has been very eager for the Supreme Court to take the issue up,” said Deborah Ferguson, attorney for four Idaho lesbian couples who sued to overturn Idaho’s ban on same-sex marriage.

So far, every circuit court that has finalized review of a state ban on same-sex marriage has overturned the ban as unconstitutional. If there were a split between circuits, the Supreme Court would be the only one that could resolve the difference.

Among the circuits with cases still pending are the 6th Circuit, where oral arguments took place in early August; the 9th Circuit, which includes Idaho and in which oral arguments took place in early September; and the 5th Circuit, where oral arguments haven’t yet been set. There has been some speculation that the 6th or 5th circuit’s judges might uphold a state ban.

Idaho Gov. Butch Otter and Attorney General Lawrence Wasden have vowed to appeal Idaho’s case all the way to the Supreme Court if they lose in the 9th Circuit. Otter’s office had no comment Monday on the Supreme Court’s decision.