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Marriage Equality

Idaho Gov. Begs Court to Reverse 'Bad Law' of Marriage Equality

Idaho Gov. Begs Court to Reverse 'Bad Law' of Marriage Equality


A unanimous decision from a federal appeals court bringing marriage equality to Idaho 'appears to be judicial policymaking masquerading as law,' according to the governor.

Idaho governor Butch Otter is trying every legal tactic available to roll back marriage equality in his state, despite the fact that same-sex couples there have been receiving marriage licenses for a full week.

Tuesday night, the Republican governor formally asked a larger panel of judges from the Ninth Circuit Court of Appeals to consider rehearing the state's marriage equality case, Latta v. Otter, reports BuzzFeed. Even though a three-judge panel of the Ninth Circuit unanimously struck down the state's ban on same-sex marriage earlier this month, Otter is legally entitled to petition for what is called an en banc hearing, with a panel of 11 judges from the circuit.

Notably, the U.S. Supreme Court October 10 declined to place a hold on the Ninth Circuit ruling, rejecting a request from Otter to issue a stay on the implementation of marriage equality while the state appeals.

That action from the nation's high court allowed the Ninth Circuit's decision to take effect, bringing marriage equality to the Gem State. In its decisive ruling, the NInth Circuit soundly rejected the arguments in support of the ban offered by Otter and his attorneys, but that hasn't changed the state's tactics, according to the petition filed in court Tuesday.

In attempting to convince the Ninth Circuit to rehear the case, Idaho claims that the issue of marriage equality is "exceptional because, as a practical matter, redefining marriage by judicial fiat will undermine these social norms and likely lead to significant long-term harms to Idaho and its citizens, especially the children of heterosexuals."

That's an argument the existing Ninth Circuit ruling directly rejected, with Judge Stephen Reinhardt penning this scathing retort to Idaho's claims that marriage equality will somehow harm heterosexual marriages:

"We seriously doubt that allowing committed same-sex couples to settle down in legally recognized marriages will drive opposite-sex couples to sex, drugs, and rock-and-roll," wrote the judge on behalf of the court.

Throughout the state's filing, attorneys refer to the Ninth Circuit's decision as "redefining marriage" in Idaho, even alluding to the tenuous claim made by the antigay attorney who represented the state in court during initial proceedings that the randomly selected panel of three judges who heard the case earlier this year was somehow biased in favor of marriage equality.

The Ninth Circuit ruling -- which fell in line with more than 40 similar rulings supporting the freedom to marry in state and federal courts nationwide -- "appears to be judicial policymaking masquerading as law," write attorneys for the state in its latest petition.

"But it is bad law, conflicting with numerous decisions of this Court, other circuits and the Supreme Court," the state's petition claims. "And it is even worse policy, creating enormous risks to Idaho's present and future children -- including serious risks of increased fatherlessness, reduced parental financial and emotional support, increased crime, and greater psychological problems -- with their attendant costs to Idaho and its citizens."

In a statement about his petition for a rehearing, Otter pointed to a story circulating on conservative media about a for-profit wedding venue in Coeur d'Alene, Idaho, owned by a religious couple who claim they were "forced" to close their business and threatened with fines and jail time because they do not want to serve same-sex couples. The antigay law firm Alliance Defending Freedom has filed a federal lawsuit on behalf of the owners of the Hitching Post, but it's unclear whether the firm has actually been in touch with the couple who own the venue.

What's more, as LGBT bloggers Jeremy Hooper and David Badash have recently reported, nearly all of the supposed "facts" about the situation in Coeur d'Alene have proved false. The city has made no motion to jail, censure, or fine the couple, whose business may not even be required to heed the city's preexisting nondiscrimination order, as the couple had already begun the process to register it as a religious institution, according to Boise Weekly.

Nevertheless, Otter pointed to the alleged controversy in Coeur d'Alene when announcing his petition to the Ninth Circuit, reports Metro Weekly.

"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. But the Hitching Post example shows the fallacy of that position," said Otter in a statement. "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. 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."

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