As directed, attorneys for four Idaho couples who successfully sued to overturn the state’s ban on gay marriage have submitted a response to U.S. Supreme Court Justice Anthony Kennedy, opposing the temporary stay he granted yesterday on the 9th Circuit Court of Appeals decision that Idaho’s ban is unconstitutional. In the 27-page brief, attorney Deborah Ferguson argues that the state is wrong in its argument that the state will be harmed if same-sex marriages are allowed to start in Idaho; instead, she argues, it’s the couples who will be harmed if they’re not.
“The primary ‘harm’ that applicants identify is the State’s inability to enforce its marriage laws,” Ferguson wrote. “But a State can have no legitimate interest in enforcing unconstitutional laws.”
“Respondents and numerous other same-sex couples in Idaho will face concrete, grievous, ongoing harm from a stay,” she wrote. “Throughout the duration of a stay, same-sex couples will face major life events such as births, illnesses, and deaths, all without the crucial legal protections afforded by marriage.”
The brief also disagrees with the state’s arguments that there’s a split between circuits on the question of the level of review for such cases – whether they should get “heightened scrutiny” or the less-stringent “rational basis” review. “No court of appeals since Windsor has held that state marriage laws discriminating against same-sex couples withstand constitutional scrutiny—no matter the standard of review used,” Ferguson wrote.
She also discounted states’ rights concerns raised by the state. “Nothing in Windsor suggests that federalism concerns trump the constitutional limitations on a State’s power to regulate marriage,” she wrote. “Were it otherwise, Loving might have been decided differently.” That’s a reference to the 1967 case Loving vs. Virginia, in which the high court prohibited state laws banning interracial marriages.