Oct 11 2014
The 9th Circuit Court of Appeals decision on Idaho’s same-sex marriage ban is one of those court decisions worth the read – you can find a copy at www.ridenbaugh.com/14-35420 opinion.pdf. It’s worth doing for understanding exactly what the state is arguing, and what the court said in response.
Part of it is a technical analysis relating to the Nevada part of the case, and not relevant to Idaho. But read the rest and you come away with a sense of just how thin Idaho’s legal ground here is.
The Idaho argument has the advantage of proceeding in the wake of decisions by the U.S. Supreme Court, paring the legal case down to the core. The main dispute: Whether there exists a clear and strong rationale for the Idaho rule (which includes both constitutional provisions and state law) – something beyond simply disliking the idea of gay marriage. Or declaring gay couples as second-class, which as the court said (following up on Supreme Court decisions) it cannot legally do.
The state argued, naturally, that there was. It said children raised in opposite-sex marriages would be better off. But the court found no specific evidence of that. The circuit also noted Idaho hasn’t blocked gay couples from adopting children.
“Idaho focuses on another aspect of the procreative channeling claim,” it added. “Because opposite-sex couples can accidentally conceive (and women may choose not to terminate unplanned pregnancies), so the argument goes, marriage is important because it serves to bind such couples together and to their children. This makes some sense. Defendants’ argument runs off the rails, however, when they suggest that marriage’s stabilizing and unifying force is unnecessary for same-sex couples, because they always choose to conceive or adopt a child. As they themselves acknowledge, marriage not only brings a couple together at the initial moment of union; it helps to keep them together, ‘from [that] day forward, for better, for worse, for richer, for poorer, in sickness and in health.’ Raising children is hard; marriage supports same-sex couples in parenting their children, just as it does opposite-sex couples.”
And: “Just as ‘it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse,’ Lawrence, 539 U.S. at 567, it demeans married couples—especially those who are childless—to say that marriage is simply about the capacity to procreate.” Continue Reading »Share on Facebook