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Idaho same-sex marriage (SSM) lawsuit Latta v. Otter.

2014-OCT/NOV: Idaho continues appeal process
(Cont'd). Public opinion poll. Plaintiffs file
response. Appeal is rejected. State may appeal
directly to U.S. Supreme Court.

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This topic is continued from the previous page

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wedding rings2014-OCT-21: State of Idaho appeals again to the 9th Circuit Court of Appeals (Cont'd):

Michael C. Geraghty (R), Alaska’s attorney general, also asked the 9th Circuit Court to consider an en banc review of their case; this is a review of the decision by the three-judge panel by the full court. 1

On OCT-31, there was a debate among candidates for Governor of Idaho just before the 2014 mid-term elections. Governor Otto confirmed his opposition to marriage equality and repeated his criticism of the 9th U.S. Circuit Court of Appeals' previous ruling. He said:

"I'm not ready to surrender to a few folks in black robes. I'm not ready to surrender the will of the people in the state of Idaho, as they expressed in 2006 in an overwhelming majority." 2

He obviously feels that the United States is a pure democracy -- a country which is ruled by the will of the majority of voters. But almost all constitutional specialists view the U.S. as being a constitutional democracy -- a country in which the federal Constitution is the highest law of the land. One of the main responsibilities of the federal court system is to determine whenever a state law or state Constitution violates the federal Constitution and to declare the former to be unconstitutional and void. So the "folks in black robes" who formed a three-judge panel of the 9th U.S. Circuit Court of Appeals' were merely doing their job as the federal Constitution requires of them.

John Bujak, the gubernatorial candidate for the Libertarian party, said that Governor Otter was fighting:

"... a losing battle. At this point, the ship has sailed. You're not going to win that battle in federal court. You might as well start arguing about interracial marriage."

The State of Idaho's fight to preserve marriage inequality has cost the taxpayers close to $100,000. 2 It must be very frustrating to Idaho same-sex couples who plan to marry to realize that some of their own taxes are being diverted in an attempt to deny them equal rights.

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2006 to 2014: Public opinion on marriage equality:

The Idaho Marriage Definition Amendment banned same-sex marriages, civil unions and domestic partnerships in Idaho. It was passed by voters on election day, 2006-NOV. The vote at the time was 63% in favor of the ban and opposed to same-sex marriage; 37% of the voters opposed the ban. 3

Nationally, support for same-sex marriage has increased by about 1.5 percentage points per year, while opposition has dropped by about the same amount. Recent national polls indicate that support for SSM is in the range of 54% to 59%. However, in Idaho, support is low and there has been relatively little change in public support/opposition to marriage equality since the constitutional amendment in 2006:

  • A 2013 Williams Institute summary of public support for marriage equality estimated Iowa SSM support at 41% during 2012. 4

  • A New York Times/CBS News poll of likely voters ending on 2014-OCT-01 showed 38% in favor, 57% opposed with a margin of error of ~+mn~4.7%. 5

  • Public Policy Polling conducted a poll ending on 2014-OCT-14. They found 38% support for marriage equality. 6

  • An Internet poll by ISideWith.com showed support at 66% on 2014-NOV-17. 7 However, this poll is lacking in accuracy because the individuals sampled were self-selected and probably are not typical of all residents in Idaho.

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2014-NOV-13: Plaintiffs in Latta v. Otter file their response to the states "en banc" review request:

As expected, the plaintiffs requested that the state's request be rejected and that the previous ruling by its three-judge panel be accepted as final. They based their request on their belief that the due process and equal protection clauses in the 14th Amendment to the U.S. Constitution that dozens of state and federal courts have interpreted as requiring opposite-sex and same-sex couples to be treated equally.

The plaintiffs' response discussed the benefits experienced by the plaintiffs who are now married:

"Many of theses couples have waited decades for the opportunity to marry. Many are raising or expecting children. All have benefited from the legal security that marriage uniquely provides and the dignity of being treated as equal citizens whose families and intimate personal decisions are worthy of equal protection of the laws. There is no reason for this Court to revisit the panel's decision, particularly since rehearing en banc would unnecessarily cause these families months of insecurity and uncertainty concerning whether their home state will continue to treat them as equal to other families under law." 8

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2014-DEC-17: State of Idaho may try to appeal Latta v. Otter directly to the U.S. Supreme Court:

The U.S. Supreme Court currently has five pending requests for appeals of same-sex marriage cases: one each from Kentucky, Louisiana, Michigan, Ohio, and Tennessee.

Meanwhile, the 9th U.S. Circuit Court of Appeals has not yet decided whether its full court will review the earlier decision by its three judge panel in favor of marriage equality in Idaho.

Governor C.L. “Butch" Otter (R) has filed a brief with the U.S. Supreme Court asking them to take no action on any of the five cases that are before it if the 9th Circuit Court does not grant the en banc (full court) review within a few days. That would give the State of Idaho time to appeal Latta v. Otter directly to the high court.

In his brief, Governor Otter argues that the Idaho lawsuit would be the best case for the U.S. Supreme Court to consider because it raises two special issues that are not present in the other five cases:

  • The state argues that the same-sex marriage ban in Idaho can withstand a higher level of scrutiny than has been used in other states.

  • The state has also argued that allowing same-sex couples to marry could negatively impact religious freedom in Idaho. They allege that this freedom issue has not been present in the other five same-sex marriage cases that are currently being appealed to the high court. Governor Otter's claim appears to involve the "Hitching Post Chapel" controversy in Coeur d'Alene, ID. This was not the type of conventional religious freedom conflict seen all over the world -- one that attacks the freedom of religious belief, speech, association, behavior, proselytizing, and/or religious conversion by individuals and/or religious institutions. Rather it is the freedom of a for-profit company to discriminate against potential customers by rejecting the latter's request to marry them because of the owners' religious beliefs.

The city of Coeur d'Alene, ID has a human rights ordinance that prohibits public accommodations from discriminating in the provision of goods and services to customers on the basis of their race, religion, gender, country of origin, sexual orientation, etc. The ordinance specifies stiff fines and even possible jail sentences for companies that violate this ordinance. "Public accommodations" include for-profit companies that are used by the general public. Examples are retail stores, rental establishments, service establishments, etc. However, private clubs, churches, synagogues and other religious institutions are exempt and are free to discriminate with impunity. The Hitching Post Chapel is a for-profit company owned by a married couple -- a "mom and pop" operation. It appears to meet all of the requirements of a public accommodation. The company marries people for a fee, and provides them with goods related to their marriage.

The owners of the company allegedly refused to marry a same-sex couple. The story was distorted beyond recognition by some news sources. The owners were said to have been arrested and had been levied with a large fine for every day that they continued to refuse to marry the couple. In reality none of this happened. No charges under the city ordinance had ever been filed; no investigation by the city had been made; there were no arrests; there were no fines. In fact, an in an earlier TV interview before marriage equality had come to Idaho, the owners had indicated that if same-sex marriage was legalized in the state and if a same-sex couple asked to be married in their Hitching Post Chapel, they would be willing to have an outside officiant -- one who would not discriminate against same-sex couples -- to come to their store and marry the couple. That would be a win-win arrangement. The same-sex couple would be able to be married and the owners of the company would not have their religious freedom to discriminate restricted.

One interesting angle to the Hitching Post controversy is that the owners of the company refuse to marry same-sex couples themselves because of their conservative Christian beliefs about homosexual orientation. Their beliefs are based on a conservative interpretation of certain biblical passages that some theologians feel are related to same-gender sexual behavior. But one of the main requirements that Yeshua of Nazareth (Jesus Christ) established for Christian believers is that they follow the Golden Rule -- that a person should treat others as they would wish to be treated themselves. The owners of the Hitching Post Chapel would certainly be disappointed and perhaps object if they were refused goods and services by a local retail establishment. Therefore, the Golden Rule quoted in Matthew 7:12 and Luke 6:31 would seem to prohibit their discrimination of a same-sex couple.

According to SCOTUSblog:

"If the Court does not grant review of any same-sex marriage case by about mid-January, the chances are that it would not rule on the constitutional dispute during the current term, which is likely to run until late June or early July [of 2015]." 9

That would delay the Supreme Court's final decision on this very important and controversial topic by a full twelve months until 2016-JUN!

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2015-JAN-10: The U.S. 9th Circuit Court of Appeals rejects Idaho's request for an en banc review:

Governor Butch Otter's (R) request for an en banc review by all 11 of the judged in the U.S. 9th Circuit Court was rejected. Otter's assertion that same-sex marriage harms children, leading to an:

" ... increased risk of crime, emotional and psychological difficulties, poor performance in school and other ills"

was apparently not convincing to the judges.

The court issued a ruling stating that:

"The panel has voted to deny the petitions for rehearing en banc.

The full court was advised of the petitions for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc.

The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc reconsideration. The petitions for rehearing en banc are denied." 10

The National Center For Lesbian Rights (NCLR) responded:

"The Ninth Circuit correctly recognized that there is no need to reconsider the panel’s decision that Idaho’s marriage ban violates basic constitutional guarantees of equal protection.

The Ninth Circuit’s decision striking down the Idaho marriage ban is consistent with the rulings of three other federal appeals courts, which have rightly concluded that our Constitution cannot tolerate the profound harm that denying same-sex couples the freedom to marry inflicts those couples and their children." 10

Governor Otto still has the option to appeal the decision of the three-judge panel of the 9th Circuit Court directly to the U.S. Supreme Court. However, the high court has refused similar appeals so many times in the recent past, that such a move is very unlikely to be accepted by that court.

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The story continues in the next essay with a different topic:
a detailed discussion of the "Hitching Post Chapel" controversy

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Chris Geidner, "Idaho Governor Asks Appeals Court To Reconsider Same-Sex Marriage Ruling," BuzzFeed News, 2014-OCT-22, at: http://www.buzzfeed.com/
  2. Jennifer Bendery, "Idaho Governor Vows To Keep Fighting Supreme Court Ruling Allowing Same-Sex Marriage." Huffington Post, 2014-OCT-31, at: http://www.huffingtonpost.com/
  3. "Idaho Marriage Definition, HJR 2 (2006)," Ballotpedia, at: http://ballotpedia.org/
  4. Andrew R. Flores and Scott Barclay, "Public Support for Marriage for Same-sex Couples by State," Williams Institute, 2013-APR, at:
  5. "Battleground tracker: 2014," You Gov, 2014-SEP-07, at: https://today.yougov.com/
  6. "Idaho's governor's race....", Public Policy Polling, 2014-OCT-14, at: http://www.publicpolicypolling.com/
  7. "Do you support the legalization of same sex marriage? Results from Idaho," ISideWith, as on 2014-NOV-17, at: http://www.isidewith.com/
  8. "Plaintiffs: 9th Circuit Court should deny Otter's request for rehearing," KTVB-TV, 2014-NOV-13, at: http://www.ktvb.com/
  9. Lyle Denniston, "Idaho to take same-sex marriage case to Court," SCOTUSblog, 2014-DEC-17, at: http://www.scotusblog.com/
  10. Nick Duffy, "Court smacks down Idaho Governor’s bid to halt same-sex weddings," 2015-JAN-10, at: http://www.pinknews.co.uk/

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Copyright © 2014 & 2015 by Ontario Consultants on Religious Tolerance 
Originally written: 2014-OCT-22
Latest update: 2015-JAN-10
Author: B.A. Robinson

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