Ninth Circuit Court Hears Argument Challenging Idaho's Same-Sex Marriage Ban 

'The train has left the station'

Plaintiffs in Latta vs. Otter outside the 9th Circuit Court of Appeals in San Francisco on Sept. 8.

National Center for Lesbian Rights

Plaintiffs in Latta vs. Otter outside the 9th Circuit Court of Appeals in San Francisco on Sept. 8.

The long battle over marriage equality in Idaho reached a crucial stage Sept. 8, when the state's ban on same-sex marriage went before a three-judge panel at the 9th Circuit Court of Appeals in San Francisco.

Things did not go well for gay marriage opponents.

"What strikes me is that the train has left the station," said Judge Marsha S. Berzon, referring to a wave of court rulings overturning similar--in fact less sweeping bans--in other states.

In May, U.S. District Judge Candy Dale ruled that the Gem State's 2006 voter-approved ban on same-sex marriage is unconstitutional, and the LGBT community and its allies hailed the ruling as a step toward a future in which any two consenting adults can make a lifelong commitment to each other, regardless of race, creed, political persuasion, sexual orientation or gender identity.

Idaho Gov. C.L. "Butch" Otter and Attorney General Lawrence Wasden vowed to defend the marriage ban all the way to the U.S. Supreme Court if necessary, on the grounds that the ban was approved by a majority of voters in Idaho and defends children by cementing the one-man, one-woman framework of traditional marriage.

Speaking for the state, private attorney Monte Stewart--who also defended Nevada's same-sex marriage ban before the 9th Circuit on the same day--told the panel that Idaho has a compelling interest in maintaining its ban on same-sex marriage because defining marriage as between one man and one woman creates more stable home environments for children.

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

By "bonding right," Stewart referred to the state's assertion that a child needs to be raised in a household by a mother and father. He also told the judges that same-sex marriage undermines the broader social message that families should stick together rather than end in divorce or parental absenteeism.

"Genderless marriage does not sustain, but, rather, undermines, that message. The point is, there has not been a change, and especially in Idaho, there has not been a change in this core message," Stewart said.

Members of the panel were skeptical of whether permitting same-sex marriage would harm families more than other social factors, such as divorce.

Judge Stephen R. Reinhardt put a finer point on the argument.

"What about divorce--does Idaho prohibit divorce because it sends a bad message? Why don't you then pass a law banning divorce in Idaho, which may have more of an effect than this [ban]?" he said.

"The change has occurred in American marriages, which has led to interest in same-sex marriage," Berzon said.

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