Idaho Gov. Butch Otter (Associated Press)
Idaho Gov. Butch Otter (Associated Press)

Otter appeals Idaho gay marriage decision to U.S. Supreme Court

BOISE – Idaho Gov. Butch Otter has filed a petition appealing the legalization of same-sex marriage in Idaho to the U.S. Supreme Court, saying the state’s case is the “ideal vehicle” to resolve the issue for the nation.

“The time has come for this court to resolve a question of critical importance to the states, their citizens and especially their children: Whether the federal Constitution prohibits a state from maintaining the traditional understanding and definition of marriage as between a man and a woman,” Otter’s Washington, D.C. attorney, Gene Schaerr, wrote in the 41-page petition.

Otter argues that the high court should take up Idaho’s appeal either in addition to or instead of a 6th Circuit case already pending before the court with a similar petition.

“It is important that at least one of the cases this court considers on the merits be a case in which the traditional definition of marriage has been defended with the most robust defense available,” Schaerr wrote. “This is that case.”

Idaho Attorney General Lawrence Wasden followed up Otter’s filing with his own petition, filed today, focusing on a states’ rights argument. “The lower federal courts have rendered conflicting decisions whether the Constitution requires states to sanction same-sex marriage,” Wasden’s petition said. “This conflict has resulted in a Constitution that treats states unequally: It permits some to exercise the power they have always had to define civil marriage, but denies other states that same right.”

Same-sex marriage became legal in Idaho on Oct. 15, after the state lost its appeal in the 9th Circuit U.S. Court of Appeals. Four lesbian couples – two who wanted to marry, and two who wanted their home state to recognize their legal out-of-state marriages – sued in federal court, and won their case last May.

Deborah Ferguson, attorney for the four couples, said, “We will vigorously defend the decision.”

Schaerr told the high court court that after the initial petitions, Otter and Wasden will try to coordinate and file joint briefings, to make things easier for the court.

Idaho already has run up close to half a million dollars in legal bills fighting the decision, more than $400,000 of that in an order from the federal district court to pay the winning side’s attorney fees and costs. Otter also has spent nearly $100,000 on outside attorneys.

In Otter’s petition, he listed an array of reasons why he believes the high court should take up Idaho’s case, from an opportunity to review the 9th Circuit’s “heightened scrutiny” standard for cases of discrimination based on sexual orientation, to the Idaho case including both the issues of permitting in-state same-sex marriages and recognizing out-of-state same-sex marriages. Idaho law has explicitly barred recognition of out-of-state same-sex marriages since 1996; in 2006, its voters passed a constitutional amendment declaring that the only relationship the state will recognize is that between a man and a woman. That gave Idaho one of the nation’s most sweeping bans on same-sex marriage, also barring domestic partnerships and civil unions.

Both the constitutional ban and the state law were overturned by the May federal court decision.

Otter’s main argument is that Idaho believes limiting marriage to opposite-sex couples is better for children, and that states should be able to make that call. He argues that the limit sends a message to heterosexual couples that they should stay together and raise children.

“Removing that definition and replacing it with an ‘any two qualified persons’ definition will inevitably weaken those child-centric norms,” Schaerr wrote. “As a result, more children of heterosexual couples will likely grow up without the active influence of one or both biological parents, and will therefore face an increased risk of crime, emotional and psychological difficulties, poor performance in school and other ills.”

The 9th Circuit specifically rejected that argument. In a much-noted footnote in its October decision, the 9th Circuit’s three-judge panel wrote, “We seriously doubt that allowing committed same-sex couples to settle down in legally recognized marriages will drive opposite-sex couples to sex, drugs, and rock-and-roll.”

Schaerr also wrote in his petition that Idaho’s is the ideal test case because the 9th Circuit decision and two concurring opinions from its judges address three major constitutional arguments: Whether banning same-sex marriage discriminates on the basis of sexual orientation; whether it discriminates based on gender; and whether it violates people’s fundamental right to marry the person of their choosing.

Schaerr warned of “enormous societal risks accompanying a redefinition of marriage,” and concluded, “The court’s resolution of the questions presented here can mark the end of marriage litigation in all respects – if this court resolves those questions in the context of this case.”

In late October, Otter asked the 9th Circuit to appoint a larger panel and reconsider its decision in Idaho’s case, but it’s taken no action on his motion. “Given the amount of time that has passed, we assume there are not enough votes to grant the petition,” Schaerr wrote in the filing to the Supreme Court.


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