Idaho Governor Butch Otter.
They just keep on coming… Hard on the heels of last week’s ruling by a state court judge in Arkansas that the ban on same-sex marriages there violates both the state and federal constitutions, a federal judge in Boise has ruled that Idaho’s ban violates the 14th Amendment Due Process and Equal Protection Clauses.
Chief US Magistrate Judge Candy Wagahoff Dale released her decision late on May 13, issuing an injunction against enforcement of the ban to become effective at 9 a.m. on May 16, unless stayed by judicial action.
Dale later denied a stay sought by Governor Butch Otter and Attorney General Lawrence Wasden, both Republicans. On May 15, the eve of Dale’s deadline for her order to go into effect, the US Ninth Circuit Court of Appeals issued a temporary stay pending consideration of the state’s motion for a permanent stay to allow the appeals process to play out.
Federal judge's ruling out of Boise the latest in long string since Utah decision in December
In January, the US Supreme Court halted marriages in Utah after the district judge and the 10th Circuit declined to issue a stay.
Dale’s decision closely resembles the long string of federal trial court decisions dating back to the December Utah ruling, but it has one important distinguishing factor. It’s the first decision by a trial court within the Ninth Circuit to rule on a marriage equality claim in light of an important decision by the circuit about how to handle sexual orientation discrimination claims.
On January 21, in a case involving a dispute between SmithKline Beecham and Abbot Laboratories over an HIV drug and a challenge to the preemptory elimination of a potential gay juror, a three-judge panel found that last year’s Supreme Court DOMA ruling effectively invalidated prior Ninth Circuit precedent on the question of whether “heightened scrutiny” should be applied in considering sexual orientation discrimination claims. When heightened judicial scrutiny is employed, a law under challenge is presumed unconstitutional unless the government demonstrates that it significantly advances an important government policy.
Most legal commentators agree that a ban on same-sex marriage cannot survive heightened scrutiny review. The SmithKline appeals court panel found that such claims should, in fact, be subject to heightened scrutiny.
In defense of Idaho’s marriage ban, the state argued that SmithKline was distinguishable from this case because it is limited to “instances of proven animus or irrational stereotyping.”
Dale rejected that contention.
“SmithKline addresses purposeful discrimination and the perpetuation of impermissible stereotypes, but it does so,” she found, in the context of jury selection, not regarding its discussion of the DOMA case. The DOMA holding, Dale concluded, “was undeniably broad: ‘[Its] heightened scrutiny applies to classifications based on sexual orientation.’ Had the Ninth Circuit intended to limit its holding to cases involving animus or irrational stereotyping, it easily could have done so. Instead it found [the DOMA ruling] to be ‘dispositive of the question of the appropriate level of scrutiny in this case.’”
Ironically, Dale did not need the SmithKline precedent to reach her result since she had already concluded that Idaho’s marriage ban would be subjected either to strict or heightened scrutiny because it abridges a right frequently referred to by the Supreme Court as fundamental: the right to marry.
The Idaho lawsuit was no more about the right to same-sex marriage, she concluded, than the 1967 challenge to Virginia’s miscegenation law was about the “right to interracial marriage.” Mentioning also cases about the right of prisoners and dead-beat dads to marry, she wrote, “Even in cases with such vastly different facts, the Supreme Court has consistently upheld the right to marry, as opposed to a sub-right tied to the facts of the case.”
She also wrote, “The Supreme Court’s marriage cases demonstrate that the right to marry is an individual right, belonging to all. If every individual enjoys a constitutional right to marry, what is the substance of that right for gay and lesbian individuals who cannot marry their partners of choice? Traditional man-woman marriage is no answer, as this would suggest that gays and lesbians can switch off their sexual orientation and choose to be content with the universe of opposite-sex partners approved by the State.”
Dale carefully reviewed all of the state’s justifications for its ban and found them wanting. The argument that the ban advanced the welfare of children struck her as “so attenuated that it is not rational, let alone exceedingly persuasive.” She rejected outlier “scientific” publications that argue children need to have parents of both sexes in order to thrive, writing, “The best that can be said for [the state’s] position is that some social scientists quibble with the prevailing consensus that the children of same-sex parents, on average, fare no better or worse than the children of opposite-sex parents.”
But even that argument is irrelevant, Dale noted, saying the real issue was whether there is any “logical link between child welfare and Idaho’s wholesale prohibition of same-sex marriage.” In fact, she pointed out, denying same-sex couples the right to marry disregards “the welfare of children with same-sex parents.”
Dale also dismissed arguments that banning same-sex marriage somehow encourages heterosexuals to procreate responsibly by raising their children in married households, that federalism leaves the question of who can marry solely in the hands of states, or that the state's policy was necessary to “accommodate religious freedom.”
She wrote, “Not all religions share the view that opposite-sex marriage is a theological imperative. In fact, some of the Plaintiffs actively worship in faiths that recognize and support their unions.” Then, quoting from the federal district court’s marriage equality opinion in the Utah case, she added, “By recognizing the right to marry a partner of the same sex, the State allows these groups the freedom to practice their religious beliefs without mandating that other groups must adopt similar practices.”
As so many of the other federal judges who have ruled in favor of marriage equality have done, Dale quoted from Supreme Court Justice Antonin Scalia, who, in dissent, warned that the high court’s 2003 sodomy ruling would open up constitutional claims to same-sex couples’ right to marry. Idaho argued that the discriminatory effects of denying their right to marry are “merely incidental… [to] efforts to preserve Idaho’s traditional civil marriage institution.” In that vein, Scalia had argued, “But ‘preserving the traditional institution’ is just a kinder way of describing the State’s moral disapproval of same-sex couples” –– disapproval that the sodomy ruling found an impermissible ground for discrimination.
“Idaho’s Marriage Laws,” Dale concluded, “deny same-sex couples the economic, practical, emotional, and spiritual benefits of marriage, relegating each couple to a stigmatized, second-class status. Plaintiffs suffer these injuries not because they are unqualified to marry, start a family, or grow old together, but because of who they are and whom they love.”
It is important to keep in mind that there is already a marriage equality appeal pending at the Ninth Circuit, in the unsuccessful challenge to Nevada’s marriage ban decided prior to last summer’s DOMA ruling. Arguments in that case, originally scheduled for April, were postponed as the circuit took up the request of one judge that the “heightened scrutiny” finding in the SmithKline case be reviewed by the entire circuit. With the circuit believed to have decided not to reconsider that case, the Nevada case will now probably proceed quickly to arguments, and it’s likely that Governor Otto’s appeal in Idaho will be heard by the same appellate panel.
Four lesbian couples brought the Idaho lawsuit –– Susan Latta and Traci Ehlers, Lori Watsen and Sharene Watsen, Shelia Robertson and Andrea Altmayer, and Amber Beierle and Rachael Robertson. They are represented by Boise attorneys Deborah A. Ferguson and Craig Durham and the National Center for Lesbian Rights.
