Idaho says its case could help Supreme Court decide nationwide marriage equality

BOISE, Idaho — Attorneys for Idaho Gov. Butch Otter contend the U.S. Supreme Court should wait until it receives arguments from Idaho before deciding a case involving gay marriage in the United States.

In documents filed with the nation’s highest court, lawyers for Otter said waiting for Idaho’s case would help the Supreme Court resolve “the marriage-litigation wave in all respects.”

The Spokesman-Review reported Wednesday that attorneys Gene Schaerr and Tom Perry filed those arguments in a friend-of-the-court brief for a petition to have the Supreme Court hear a same-sex marriage case out of the 6th U.S. Circuit Court of Appeals.

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Otter listed several reasons why he believed Idaho’s case was the “best vehicle” to decide the issue of same-sex marriage.

Among them: Idaho’s case included both the question of in-state marriages and recognition of out-of-state marriages; it would test the 9th U.S. Circuit Court of Appeals’ application of a heightened standard of scrutiny for discrimination based on sexual orientation; it brought up religious liberty issues; and Idaho officials have mounted a vigorous defense of their ban on gay marriage.

Otter’s legal brief cited “the enormous societal risks accompanying a genderless-marriage regime.”

“Common sense and a wealth of social-science data teach that children do best emotionally, socially, intellectually and economically when reared in an intact home by both biological parents,” the document said.

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Idaho voters passed a constitutional amendment in 2006 banning gay marriage, civil unions or any other form of state recognition of relationships other than those between a man and a woman. A federal court overturned Idaho’s ban last May, ruling it violated the U.S. Constitution by discriminating against same-sex couples. Idaho appealed to the 9th Circuit but lost there as well.

The state currently has a petition pending at the 9th Circuit asking for reconsideration. Unless that petition is granted soon, Otter and Idaho Attorney General Lawrence Wasden will file a petition on Jan. 5 to appeal to the U.S. Supreme Court.

Deborah Ferguson, the Boise attorney who represented four Idaho same-sex couples who successfully sued to overturn the law, said her clients would oppose a petition to have the Idaho case heard by the Supreme Court.

The 9th Circuit “correctly decided the marriage equality issue,” she said.