9th Circuit Hears Oral Arguments in Idaho's Same-Sex Marriage Ban Case

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Esteban Galan shows off his rainbow flag at a February demonstration against Idaho's same-sex marriage ban at the Ada County Courthouse. - HARRISON BERRY
  • Harrison Berry
  • Esteban Galan shows off his rainbow flag at a February demonstration against Idaho's same-sex marriage ban at the Ada County Courthouse.
A three-judge panel of the U.S. 9th Circuit Court of Appeals heard arguments from defenders and detractors of Idaho's same-sex marriage ban Sept. 8 in San Francisco.

In the case of Latta v. State of Idaho, the panel heard from Monte Neil Stewart, the private attorney charged with defending Gov. C.L. "Butch" Otter and Idaho Attorney General Lawrence Wasden, who told the Court that Idaho's ban combats forces that erode marriage like divorce and parental absenteeism, and helps Idaho children grow up in one-man, one-woman families—an ideal environment, he said, for children's "bonding right." Allowing same-sex marriage, he said, harms Idaho's interest in preserving Idaho families.

"The different kind of marriage that Idaho must implement if same-sex couples are allowed to marry undermines that expectation of the child’s bonding rite," he said.

Stewart further argued that allowing same-sex marriage in Idaho would be essentially a dangerous experiment in which the state doesn't wish to participate.

"The price is too high for switching to a radically different idea of marriage," he said.

But the judges on the panel were skeptical, and 9th Circuit Judge Marsha Berzon, citing social factors with a more direct impact on the integrity of marriage like divorce, told Stewart that American culture has changed, possibly making the question of whether same-sex unions deteriorate "traditional" marriage quaint.

"The train has left the station. The change has occurred in American marriages, which has led to interest in same-sex marriage," she said. 

Speaking for the plaintiffs—four same-sex couples including Sue Latta and Traci Ehlers, Lori and Sharene Watsen, Sheila Robertson and Andrea Altmayer, and Amber Beierle and Rachael Robertson—was Boise attorney Deborah Ferguson, who argued that Idaho's ban denies same-sex couples their Fourth Amendment rights, that Idaho's ban is "the most draconian" in the 9th Circuit, and that the argument that the ban reflects Idaho's cultural values is arbitrary.

"It nullifies all same-sex marriages made in other states at its borders and bars the possibility of recognition of any form to same-sex couples," Ferguson said. "The state’s justifications for banning same-sex marriage, the harms are so egregious, and there is no rational logical conclusion if the state wants to encourage man-woman marriage, that sounds just like gender stereotypes."

Following the arguments, one of the plaintiffs, Rachael Robertson, told Boise Weekly in a text message, "We are very excited for the opportunity to be heard, and we hope soon, that there will be marriage equality in Idaho."

Monday's oral arguments are the latest development in a monthslong effort by the plaintiffs to overturn the 2006 same-sex marriage ban. Opponents of the ban scored a victory in May, when U.S. District Judge Candy Dale ruled that the ban violated the Constitutional rights of same-sex couples, though Otter and Wasden, citing "chaos and confusion" following a similar ruling in Utah, quickly appealed to the 9th Circuit Court, requesting a stay on overturning the ban outright, which was granted. Otter has said that he will pursue the case, if need be, all the way to the U.S. Supreme Court, and approved a $1 million war chest through the Idaho Legislature's Joint Finance-Appropriations Committee, to fund that defense.