The state of Idaho has filed a reply brief to the U.S. Supreme Court this morning, in response to yesterday afternoon’s filing from the plaintiffs in the same-sex marriage case; you can read it here. Unlike the original motion to Supreme Court Justice Anthony Kennedy for a stay, which came only from Gov. Butch Otter, this reply brief is a joint one from both Otter and Idaho Attorney General Lawrence Wasden.
The reply brief makes it clear that the state plans to appeal only a subsidiary issue – the standard of review – to the Supreme Court, not the full question of whether same-sex marriage is unconstitutional. “The issue in this case will be presented in a way that does not require the Court to resolve conclusively the global question of whether the Fourteenth Amendment in any of its aspects bars a State from defining marriage as the union of a man and a woman,” the brief states, saying that makes it different from the seven petitions from five states that the high court refused to take up on Monday, thus legalizing same-sex marriage in those states and others in the affected circuits.
Essentially, the state is saying it wants the high court to take up a side issue, overrule the 9th Circuit on that, and then send the case back to the 9th Circuit to be argued again there with a different standard of review. Presumably, that would then lead to another appeal to the U.S. Supreme Court on the merits of the case, extending the process by months or years.
The state’s brief takes issue with the 9th Circuit’s ruling, saying that by applying “heightened scrutiny” to cases involving discrimination based on sexual orientation, a standard the 9th Circuit established in its earlier Smith-Kline case ruling, the circuit is creating new “suspect class” of people who can’t be discriminated against. “The decision below turns not on fundamental rights but on a single Ninth Circuit panel’s path-breaking holding that gay men and lesbians constitute a suspect class protected by heightened scrutiny,” the brief says. It says the 9th Circuit is “creating the first new suspect class in 30 years.”
The state then argues that gay men and lesbians don’t fit one of the criteria for a “suspect class” subject to discrimination: Political powerlessness. “The LGBT movement today has enormous political power,” the brief says. “The rapid rise of their political and social power is unprecedented in our Nation’s history.”
The brief also argues that Idaho’s same-sex marriage ban doesn’t discriminate against gays and lesbians, because it “says nothing about sexual orientation—it merely specifies that any person can marry only a person of the opposite sex. It cannot be denied that, for a variety of personal reasons, gay men and lesbians can and sometimes do marry persons of the opposite sex.” The state says that while the ban “can create emotional and other hardships,” Idaho’s constitutional ban is “facially neutral with respect to sexual orientation.”