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Eye On Boise

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

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; you can read Otter’s 31-page brief here.

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 case includes both the question of in-state marriages and recognition of out-of-state marriages; it would test the 9th Circuit U.S. 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.

The 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.” “Of all the pending court of appeals cases,” the lawyers write, Idaho’s “is the only one in which public officials presented a robust ‘institutional’ defense of the man-woman definition of marriage.”

Deborah Ferguson, attorney for the four Idaho couples who successfully sued to overturn Idaho’s ban on same-sex marriage, said she’d oppose any petition for the U.S. Supreme Court to take up Idaho’s case, “as the 9th Circuit correctly decided the marriage equality issue.” Idaho’s constitutional ban on gay marriage, civil unions and domestic partnerships was overturned last May in federal court; the state appealed to the 9th Circuit but lost there, too. Idaho has a request pending for reconsideration from the 9th Circuit, but Otter’s brief says if it’s not granted within days, he will file an appeal to the U.S. Supreme Court on Jan. 5. Same-sex marriage became legal in Idaho on Oct. 15. You can read my full story here at

Betsy Z. Russell
Betsy Z. Russell joined The Spokesman-Review in 1991. She currently is a reporter in the Boise Bureau covering Idaho state government and politics, and other news from Idaho's state capital.

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