Same-sex marriage has been legal in Idaho since an October ruling by the 9th U.S. Circuit Court of Appeals, which has struck down bans across the West.
Attorney General Lawrence Wasden’s filing Friday states that the issue is a matter of a state’s right to define marriage without the federal government’s involvement.
“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 said in the petition.
Gov. Butch Otter’s petition, filed Tuesday, states that the high court should review Idaho’s case alone or in addition to a pending case involving the 6th U.S. Circuit Court of Appeals that upheld the right of Kentucky, Michigan, Ohio and Tennessee to decide whether to allow gay marriage.
Otter’s petition maintains that unlike in other states, Idaho’s public officials have not shied away from defending a broad definition of heterosexual marriage, specifically by arguing that children are better off when marriage is limited to opposite-sex couples.
Article continues belowHe added that Idaho’s case addresses not only the question of in-state marriages, but also out-of-state same-sex marriage. Two out of the four lesbian couples who challenged Idaho’s same-sex marriage ban more than a year ago had been legally married in other states.
“It is important that at least one of the cases this court considers on the merits be a case in which the traditional definition of marriage has been defended with the most robust defense available,” wrote Otter attorney Gene Schaerr. “This is that case.”
Gay marriage supporters have until the end of the month to file responses, and it’s unclear whether the Supreme Court will step in.
Along with the 9th Circuit, three other appeals courts have ruled in favor of gay marriage. Only the 6th Circuit has sided with states seeking to preserve same-sex marriage bans. Because of the split decisions among the appellate courts, it is very likely the Supreme Court will intervene.
The high court justices could decide as early as Jan. 9 to add same-sex marriage to their list of issues to be decided by summer.
Gay marriage is legal in at least 35 states, with Florida expected to be the latest to begin issuing same-sex marriage licenses Jan. 6.
The 9th Circuit ruling that legalized gay marriage in Idaho on Oct. 15 declared that Idaho’s ban on same-sex marriage violated equal protection and due process rights guaranteed by the U.S. Constitution. It overturned a constitutional amendment Idaho voters passed in 2006. The amendment, considered one of the strictest in the nation, prohibited gay marriage, civil union and any other form of state recognition of relationships that was not between a man and a woman.
Deborah Ferguson, the lead attorney who represented the four couples who successfully Idaho’s gay marriage ban, said she is willing to continue to defending the 9th Circuit’s decision.
“The 9th Circuit decided correctly,” she said. “We’ll now have to wait and see what happens next.”
Idaho’s gay marriage fight has cost taxpayers more than $400,000 so far. In December, a federal court ruled that the state must pay the attorney fees to the team of lawyers who defended the four lesbian couples fighting the ban on gay marriage. The state has also spent more than $80,000 on private attorneys.
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