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Eye On Boise

Wasden also files gay-marriage appeal to Supreme Court

Idaho Attorney General Lawrence Wasden has now also filed an appeal to the U.S. Supreme Court in Idaho’s same-sex marriage case, along with Gov. Butch Otter. “This case presents the Court with the opportunity to resolve a divisive split on a question of nationwide importance: Whether the United States Constitution now prohibits states from maintaining the traditional definition of civil marriage, i.e., between one man and one woman,” Wasden’s petition says.

Wasden’s petition, prepared by Deputy Attorney General Clay Smith and filed today, focuses on a states’ rights argument, saying, “The lower federal courts have rendered conflicting decisions whether the Constitution requires states to sanction same-sex marriage. 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.”

Like Otter’s petition, Wasden’s argues that the 9th Circuit ruling should have been governed by a one-line decision in a 1971 case from Minnesota, Baker vs. Nelson, which found no federal question to review in a lawsuit from that state in which two men sued because they weren’t allowed the marry. The 9th Circuit, and other appeals courts around the country, have held that last year’s Windsor decision changed that precedent; Wasden disagrees.

“The Ninth Circuit panel opinion wrongly concluded that this Court’s cases had rendered Baker obsolete,” Wasden’s petition says. The Windsor case, it says, “did not mention Baker. It instead affirmed Baker’s point that states have the authority to define marriage.” The Windsor case was the one that overturned the federal Defense of Marriage Act, or DOMA; it involved a New York woman who was ordered by the IRS to pay hundreds of thousands in estate taxes upon the death of her wife, because DOMA ordered the federal government only to recognize marriages among opposite-sex partners. Under New York law, the inheritance from a spouse was exempt from estate tax.

Wasden’s petition also echoes some of the arguments in Otter’s, saying, “The state has defined marriage as a union between a man and a woman not based on a false stereotype or discriminatory assumption, but on irrefutable biological facts. It confers the benefits of civil marriage on opposite-sex couples because they are biologically able to procreate and responsible for virtually all children being raised in Idaho households, not because of their sexual orientation.” You can read it here.  The petition runs 31 pages; with the attached appendices, including the previous rulings in the case, the document runs a total of 193 pages.

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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