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News >  Idaho

Idaho marriage law heads to appeals court

When lawyers for the state of Idaho and for four Idaho lesbian couples face off in a federal appeals courtroom in San Francisco on Monday, the fate of Idaho’s invalidated ban on same-sex marriage will hang in the balance.

Idaho is pushing hard in its fight to overturn the May U.S. District Court decision that found its ban on same-sex marriage violates the U.S. Constitution’s guarantees of equal protection and due process.

“I am firmly committed to upholding the will of the people and defending our constitution,” Idaho Gov. Butch Otter said after the district court ruled against Idaho.

A three-judge panel of the 9th Circuit U.S. Court of Appeals will hear the arguments on Monday afternoon in San Francisco, and it also will hear arguments in gay marriage cases from Hawaii and Nevada. But Hawaii already allows same-sex marriage, and Nevada officials have declined to defend their law. So most of the focus will be on Idaho.

Otter and Attorney General Lawrence Wasden have pledged to defend the state’s ban all the way to the nation’s highest court. But long before Idaho’s case reaches its final outcome, the U.S. Supreme Court likely will weigh in on other states’ marriage law cases and settle the issue.

“The Idaho case is not going to get to the Supreme Court for quite a while, even if the 9th Circuit rules pretty quickly,” said Carl Tobias, a professor at the University of Richmond School of Law who’s been tracking gay marriage cases around the country. “And the Utah and Oklahoma ones are there and ready.”

Even Wasden acknowledged that last week, quietly and without comment signing on to a Colorado-led brief, along with 16 other states, urging the high court to take up the Utah and Oklahoma cases and settle the issue once and for all. Federal appellate courts in both those states have invalidated their bans on same-sex marriage.

Though the arguments – and the judges’ questions – are significant, Tobias said, “Most lawyers and judges will tell you that 90 percent of what appeals courts do and pay attention to is the briefs, because that’s where the legal arguments are made.”

Attorneys on both sides have submitted hundreds of pages of legal arguments.

Otter, in his briefs, argued that Idaho needs to exclusively preserve opposite-sex marriage because it results in “fewer children who experience fatherlessness and motherlessness.” He also argued that if there’s a right to “marry the person of one’s choice” that would mean people would have to be allowed polygamous and incestuous marriages, too.

Wasden, in his briefs, argued that Idaho’s marriage laws don’t discriminate. “They permit a man to marry a woman, or a woman to marry a man, regardless of sexual orientation,” his lawyers wrote. “Idaho’s marriage laws treat men and women equally.”

Deborah Ferguson, a Boise attorney representing the four Idaho couples, took issue with that argument, writing that the right to marry is a right of individuals, not of groups.

Wasden also argued that Idaho’s same-sex marriage ban promotes the welfare of children because only opposite-sex couples can procreate. “Same-sex couples stand apart in this regard, because whatever may prompt them to seek civil marriage, it cannot include procreating a child. There are no exceptions to this biologically driven class differentiation.”

Yet two of the four lesbian couples who sued over Idaho’s ban are raising children together; one couple has a 1-year-old, and another has a 5-year-old.

Ferguson wrote in her brief, “Rather than causing more children to be raised by opposite-sex parents, the only impact of the ban is to harm the many Idaho children who are being raised by same-sex parents.”

Tobias said the assertion that bans on same-sex marriage benefit children hasn’t been successful in cases around the country. “Almost every court that’s considered the issue has rejected those arguments,” he said.

The randomly selected three-judge panel consists of Judge Stephen Reinhardt, a 1980 Jimmy Carter appointee and the author of the court’s opinion ruling against a California ballot proposition banning gay marriage; Judge Ronald M. Gould, a 1999 Bill Clinton appointee; and Judge Marsha Berzon, a 2000 Clinton appointee.

“The court is less liberal than a lot of people think,” Tobias said, noting that the 9th Circuit includes such conservative judges as Idaho Judge Randy Smith. But, he said, “This is what I’d call a fairly liberal panel in terms of this issue. I think the plaintiffs are probably going to win – the state’s probably going to lose.”

The court itself actually predicted that when it issued a stay on Idaho U.S. Magistrate Judge Candy Dale’s decision in May, keeping it from taking effect – and allowing gay couples in Idaho to marry – while the state appealed it. “It is difficult to see how the Idaho appellants can make a ‘strong showing’ that they will prevail,” 9th Circuit Judge Andrew Hurwitz wrote then, adding that he supported the stay only based on precedent for granting such stays during appeals.

Each side in the case will have just a half-hour to argue on Monday; the judges will intersperse that with their questions.

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