Tom Perry, attorney for Gov. Butch Otter, said U.S. Supreme Court Justice Anthony Kennedy, the author of the Windsor decision, has “sort of carved himself out as the swing vote, and we’ll see which side he goes on.” Said Perry, “This is a question of state authority, a question of the democratic vote in 2006 where Idahoans nearly 2-1 voted to retain the benefits of man-woman marriage. Justice Kennedy, as an advocate for gay and lesbian rights, is also a big proponent of democracy and federalism. So that’s where you’ve seen kind of the push and pull here.”
Deborah Ferguson, attorney for the couples challenging Idaho’s ban on same-sex marriage, said, “If we are discussing a fundamental right ... then that is not subject to the will of the majority, and we all don’t get to decide what the fundamental rights might be of a minority group. That is not the American way.”
She said, “There is the question: Is this a fundamental right? That’s our due process argument. The other is our equal protection argument. These are laws that discriminate against a group of people. … So does the government have a legitimate reason to discriminate against that group of citizens? That’s the equal protection argument I think in a nutshell.”
The attorneys are speaking at the University of Idaho's Constitution Day statewide panel discussion, with audiences in Boise, Moscow and Coeur d'Alene. Craig Durham said he agreed with Ferguson on democracy and fundamental rights, but also agreed with Perry that Justice Kennedy likely will be the deciding vote on the nation’s highest court.