October 23, 2014 at 1:17 am EDT | by Chris Johnson
Idaho, Alaska seek full Ninth Circuit review of marriage rulings
Butch Otter, Idaho, Republican Party, gay news, Washington Blade

Gov. Butch Otter (R-Idaho) is seeking full Ninth Circuit of decision in favor of same-sex marriage in his state. (Photo public domain)

Idaho and Alaska are asking the full U.S. Ninth Circuit Court of Appeals to reconsider court decisions overturning bans on same-sex marriage in those states.

On Tuesday, Idaho Gov. Butch Otter filed a request before the court asking for “en banc,” or full court review, of a decision from a three-judge panel overturning his state’s marriage law.

“I have repeatedly pointed out to the courts that unaccountable judges imposing their perception of social change on the law – rather than public policy being changed through the democratic process – undoubtedly will lead to increased religious strife and restrictions on private property,” Otter said. “For these important reasons, I will continue defending Idahoans’ self-determination and the will of Idaho voters who decided that traditional marriage is a core principle of our society.”

Todd Dvorak, a spokesperson for Idaho Attorney General Lawrence Wasden, told the Washington Blade his boss didn’t join Otter in the appeal to the Ninth Circuit. Instead, Dvorak said Wasden will file a petition for review before the U.S. Supreme Court “at the appropriate time.”

After the request was filed, the Ninth Circuit panel that overturned Idaho’s ban on same-sex marriage on Tuesday instructed the opposing side to file a response within 21 days.

The next day, Alaska Attorney General Michael Geraghty filed a similar request seeking en banc review before the Ninth Circuit. No appeals court has yet to rule on the merits of the Alaska law, but a district judge has determined the state’s ban on same-sex marriage is unconstitutional based on Ninth Circuit precedent.

“En banc hearing is warranted because Alaska’s appeal presents a question of extraordinary importance whose outcome is controlled by erroneous circuit precedent,” the request states.

In his statement accompanying his request before the Ninth Circuit, Otter cites that lawsuit that the anti-gay legal firm Alliance Defending Freedom filed on behalf of Don and Lynn Knapp, ordained ministers and owners of the Hitching Post wedding chapel in Coeur d’Alene. The couple alleges their constitutional right to religious freedom would be violated by their city’s 2013 non-discrimination ordinance if they’re compelled to officiate over same-sex marriages.

“One of the key arguments against the Idaho Constitution’s defense of traditional marriage has been that redefining it to include same-sex couples would not harm anyone,” Otter said. “But the Hitching Post example shows the fallacy of that position.”

According to local media reports, the City Attorney of Coeur d’Alene Michael Gridley responded by saying in a letter dated Oct. 20 the couple may be exempt from the non-discrimination law if they’re a not-for-profit religious organization, but could be subject to penalty if their business is for profit.

“If they are operating as a legitimate not-for-profit religious corporation then they are exempt from the ordinance like any other church or religious association,” Gridley writes. “On the other hand, if they are providing services primarily or substantially for profit and they discriminate in providing those services based on sexual orientation then they would likely be in violation of the ordinance.”

In theory, taking up the marriage issue with the full Ninth Circuit could improve the odds for opponents of gay nuptials because a greater number and more diverse body of judges would consider the issue. But one legal expert said it’s unlikely that’ll be enough for state officials to reverse decisions in favor of marriage equality in their states.

Doug NeJaime, a law professor at University of California, Irvine, said he doesn’t think the full Ninth Circuit will grant review of the marriage cases in the first place.

“Of course, the first question is whether en banc review is granted,” NeJaime said. “Given the Supreme Court’s action a couple weeks ago, there may not be many judges that want to spend resources reviewing the panel decision. And then there is certainly reason, given that Perry was also decided in the Ninth Circuit, to think a different result is unlikely.”

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

  • If they think any judge is going to swallow that crap, they have another think coming. The case they cite happens to have nothing to do with the 14th Amendment ruling on same-sex marriage. The problem they're having is with local public-accommodation laws that make it illegal to discriminate if they're not a church. And that wedding chapel (The Hitching Post) is NOT a church, it is a profit-making public accommodation and thus, covered by the law.

    The only thing that happened is that the start of Marriage Equality gave them the opportunity to discriminate, and they did. Shame on them. Become a church, do the weddings, or get the hell out of business.

    Just imagine if their twisted view were to prevail: all any racist has to do to refuse service to African-Americans is claim that they have a religious reason for doing so. If our Courts had fallen for that line of religious crap, blacks would still be sitting at the back of the bus lest they offend the "religious beliefs" of a "Christian" bus driver.

    The bottom line is that you tried to circumvent the Constitution and you lost. Man up. Live with it. We've had to live with your bigotry and inequity all our lives.

  • Some no several states need to get over it and accept that same sex marriage will be the law in the USA and all of its posseions.

  • Governor Butch Otter is continuing to show his stupidity with his comments about the sneaky Hitching Post business owners the Knapps who are trying to pose as a religious establishment. Perhaps CDA should fine them and in order for the Knapps to pay the fine they will have to make more money. As they continue to pose as a religious establishment that has to make more money they will be fined again and again until they either shut down or they perform same-gender marriages.

  • Your argument about people claiming religious beliefs to discriminate against race doesn't seem to hold water. No one has argued that race is a sin and asked to discriminate based on race because of religion. Unless you can cite specific examples where that has happened you can't justify it making your analogy weak. Unfortunately religion has consistently demonized gay people and viewed gay sex as sinful.

    Now if you say instead you can cite religion to refuse to sell someone contraception, or say meat if your a Hindu, or Pork if your Islamic or give medical care base on faith healing that may be a stronger argument. Choose your arguments carefully.

  • They may have to live with it like legalized abortion but likely not accept it. And like abortion I'm sure they will try to find ways around it or pass state laws to make it burdensome to marry. That doesn't even consider the discrimination openly gay couples will still likely face especially in more conservative places as long as there are no laws against it.

  • Why do gay couples need to give the Hitching Post business in the first place? Spend your money in places where you are respected, wanted and treated with dignity. The Hitching post will only use your money to fund efforts to discriminate against you anyway.

  • Actually, the city has updated the advice and now believes that, since the Hitching Post is a religious corporation, the fact that they're a for-profit business doesn't prevent them from having a religious exemption.
    '"After we've looked at this some more, we have come to the conclusion they would be exempt from our ordinance because they are a religious corporation," Gridley explained.'

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