January 2, 2015 at 6:30 pm EDT | by Chris Johnson
Idaho seeks Supreme Court review of marriage case
Butch Otter, Idaho, Republican Party, gay news, Washington Blade

Gov. Butch Otter (R-Idaho) is calling on the U.S. Supreme Court to take up review of Idaho same-sex marriage. (Photo public domain)

The governor and attorney general of Idaho are calling on the U.S. Supreme Court to grant review of a federal appeals court decision overturning the state’s ban on same-sex marriage.

In a 31-page petition, attorneys for Idaho Gov. C.L. “Butch” Otter make the case for why litigation that brought marriage equality to his state would be the best vehicle for a nationwide ruling on the constitutionality of state laws banning same-sex marriage.

“The time has come for this Court to resolve a question of critical importance to the States, their citizens and especially their children: Whether the federal Constitution prohibits a State from maintaining the traditional understanding and definition of marriage as between a man and a woman,” the petition states. “And this case — either alone or in combination with one of the cases arising out of the Sixth Circuit’s decision in DeBoer v. Snyder — is an ideal vehicle for resolving that question as well as the subsidiary questions on which its resolution depends.”

The petition presents three questions for the Supreme Court to consider: (1) Whether the Fourteenth Amendment requires a state to define a marriage as between persons of the same gender; (2) Whether state laws allegedly discriminating on the basis of sexual orientation should be subject to heightened scrutiny, or a greater assumption they’re unconstitutional; instead of a lower form of rational-basis of review; and (3) Whether Idaho’s marriage laws should be subject to heightened scrutiny, rational-basis review, or both.

Seemingly in a knock against other states, Otter says the Supreme Court should elect to grant his petition — either instead of other petitions or in tandem with them — because his state is the only one in which “public officials have mounted a vigorous ‘institutional’ defense of the man-woman definition of marriage.”

“[T]his is the only case now available to this Court in which any public officials have defended the man-woman definition in part on the grounds of reducing the potential for religious conflict and church-state entanglement,” the petition states. “That issue has substantial potential importance to this Court’s resolution of the principal question presented.”

In a separate 22-page petition, Idaho Attorney General Lawrence Wasden makes a similar argument for why the Supreme Court should select the Idaho case as the vehicle to make a nationwide determination on the constitutional right to same-sex marriage.

“The lower federal courts have rendered conflicting decisions whether the Constitution requires States to sanction same-sex marriage,” the petition states. “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. This case presents an appropriate vehicle for resolving this conflict.”

The Wasden petition presents only question before the court: Does the Fourteenth Amendment prohibits states from maintaining a “traditional definition” of marriage, or marriage between one man and one woman?

According to the Supreme Court’s website, the petition from Otter, which was obtained by the Washington Blade on Friday, was filed before the court on Tuesday. The petition from the attorney general isn’t yet docketed.

The petitions seek review a decision from a three-judge panel on the U.S. Ninth Circuit Court of Appeals, which in October overturned Idaho’s ban on same-sex marriage as well as a similar prohibition in Nevada. As a result of the ruling, Idaho is now one state among 35 states and D.C. to have marriage equality.

Otter filed a petition for an “en banc” ruling before the full Ninth Circuit on Oct. 21. But mandate for the panel’s decision has been handed down and more than two months have passed without action from the full court on the request for a rehearing.

In his petition before the Supreme Court, Otter expresses skepticism his request for a “en banc” rehearing before the full Ninth Circuit will be successful.

“Given the amount of time that has passed, we assume there are not enough votes to grant the petition, and that the delay is the result of a forthcoming dissent from its denial,” the petition says.

The next step is for attorneys behind the lawsuit that brought marriage equality to Idaho, including the National Center for Lesbian Rights, to respond to the petitions from state officials. Attorneys for same-sex couples could either agree the Supreme Court should take up the Idaho case or say the Ninth Circuit decision should be left alone.

Shannon Minter, legal director for the National Center for Lesbian Rights, said, “We are reviewing the two Idaho petitions and considering our options.”

It remains to be seen when the Supreme Court take action on the Idaho petitions. The Supreme Court has already docketed marriage cases from Michigan, Ohio, Kentucky, Tennessee and Louisiana for its Jan. 9 conference. It hasn’t signaled if the Idaho petitions will considered with others at that time.

What action the Supreme Court will take on the Idaho petitions is also unknown, but precedent exists for petitions seeking review of a federal appeals court rulings in favor of marriage equality. In October, the Supreme Court denied petitions seeking review of decisions overturning bans on same-sex marriage in Utah, Oklahoma, Virginia, Wisconsin and Indiana.

[h/t Equality Case Files]

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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