Idaho argues same-sex marriage ban benefits the state’s children

BOISE – Lawyers for the state of Idaho argued today that federal courts in 10 other states were wrong when they overturned state bans on same-sex marriage as unconstitutional, and they urged a federal judge to uphold Idaho’s ban, saying it benefits children. “Idaho has sufficiently good reasons for maintaining the man-woman marriage institution,” Thomas Perry, attorney for Gov. Butch Otter, told the court. “When you look at benefits, what more compelling interest does the state of Idaho have than securing an ideal child-rearing environment for future generations?” In the front row of the audience, one of the plaintiffs in the case cried silent tears. “We have a 4-year-old son together,” Shelia Robertson explained afterwards, holding hands with partner Andrea Altmayer. “We’ve been together for 16 years, and it took us a long time, it was a very careful decision for us to have our boy. We love our boy. … The fact that I don’t have any rights to him at all – it’s frightening every day.” The two are among four Idaho couples who sued to overturn Idaho’s constitutional ban on same-sex marriage, and its ban on recognition of legal marriages from other states. They, along with another lesbian couple, applied for marriage licenses in Idaho in November and were rejected; two days later, the lawsuit was filed. The other two same-sex couples were legally married in California and New York, but Idaho doesn’t recognize their unions. U.S. Magistrate Judge Candy Dale questioned the state’s attorneys about their reliance on the for-the-children argument for upholding the ban. She noted repeatedly that when couples get marriage licenses in Idaho, “They don’t have to submit anything to prove that they intend to have children.” Perry said Idahoans wanted to uphold and strengthen the traditional institution that leads to procreation, even if not every marriage results in children. “At the end of the day, the voters had to make a choice,” he said. Deborah Ferguson, attorney for the four couples, said, “The state can’t select a preferred group of Idaho families for special preference and recognition. … The legal interest is for all of Idaho’s families, and all of Idaho’s children, whether they’re raised by same-sex parents, stepparents, adoptive parents or grandparents.” Since the U.S. Supreme Court last summer struck down the federal “Defense of Marriage Act,” or DOMA, saying it violated constitutional guarantees of equal protection and due process, federal courts in 10 states have ruled in favor of same-sex marriage. But Perry and deputy Idaho Attorney General Scott Zanzig said those decisions should have deferred to a 1972 U.S. Supreme Court decision in a Minnesota case that said the Constitution’s equal-protection and due-process guarantees didn’t grant the right to marry to two men. That case, Baker v. Nelson, came long before this year’s Windsor decision, the case that prompted the courts in other states to overturn bans on same-sex marriage. “I would contend that those courts have misread the Windsor decision,” Zanzig told the court. “If Baker v. Nelson is going to be overruled, that’s up to the Supreme Court, not up to the lower courts.” The judge asked Perry, “What justification, if any, does the state of Idaho or Gov. Otter make for its definition of marriage that restricts it to a legal union between a man and a woman that’s unique or distinguishable from all these other cases?” Perry responded that the other cases didn’t fully address the question of the “institution of marriage.” He said, “Does the state of Idaho have to define marriage in the same way that New York does? … We don’t, because we have sufficiently good reasons on both sides of the coin for retaining that.” A January ruling from the 9th District U.S. Court of Appeals, SmithKline v. Abbott, set a new “heightened scrutiny” standard for cases involving discrimination on the basis of sexual orientation that shifts the burden of proof, making it easier for the plaintiffs to overturn Idaho’s ban as discriminatory. The state’s attorneys argued that the decision shouldn’t apply to the Idaho case, and that the state need only show that there was a “rational basis” for Idaho’s ban. But Ferguson noted that in two other states that, like Idaho, are in the 9th Circuit – Nevada and Oregon – that ruling prompted the states to drop their defense of their state same-sex marriage bans. “The burden has now shifted from the plaintiffs to the state, and the court must fully consider the law’s effects and the state’s reasons for enacting it,” she said. “The purpose of Idaho’s constitutional amendment was to enshrine in Idaho’s Constitution a way to demean and humiliate Idaho’s same-sex couples and families.” The judge took the arguments under advisement, and said she’ll rule “in the relatively near future,” adding, “It will be soon.” Whichever way the decision comes down, the losing side is expected to appeal it. The courtroom was full, with close to 60 people in the audience. Among them was Madelynn Lee Taylor, a U.S. Navy veteran who’s made headlines after the state refused to allow her same-sex partner, Jean Mixner, to be buried with her at the Idaho State Veterans Cemetery. Shortly after the arguments ended, Taylor said, “I don’t know what to think right now, to tell you the truth. The kids that I’ve known that have grown up in gay families have turned out OK. … I just sent a package off to a young man who’s in Bosnia – his two mothers did a good job with him.” Ferguson said after the arguments, “Banning same-sex couples doesn’t help or strengthen other Idaho marriages.”