Idaho's Gay Marriage Lawsuit Could Make History

May 5, 2014

Lori and Sharene Watsen with their son
Credit Adam Cotterell / Boise State Public Radio

A federal district judge in Boise hears arguments Monday morning in a lawsuit over same-sex marriage. It challenges Idaho’s 2006 constitutional amendment that bans gay marriage.

Lawyers for Gov. C.L. “Butch” Otter and Idaho Attorney General Lawrence Wasden are defending the ban.

Four lesbian couples filed the suit last November. Lorie and Sharene Watsen are one of them. When they were thinking about suing to get Idaho to recognize their marriage they were scared. But Sharene says they were also excited.

“I’ve had moments thinking about cases you read about in elementary school that changed history, and that we would be part of that potentially,” Watsen says.

So will the case known as Latah vs. Otter be historic?

“I think this case has the potential to be huge,” says Shaakirrah Sanders who teaches law at the University of Idaho.

Sanders says this case could change Idaho’s definition of marriage.

Here’s what it’s about. Two of the couples suing the state are legally married in other states. That includes the Watsens. Two others tried to get married in Idaho and were denied licenses. They claim not granting them licenses or not recognizing their marriages violates the federal constitution’s guarantees of equal protection.

This is one of many similar cases in courts across the country right now. More than 20 states have seen challenges filed to bans on same sex marriage since last summer. Two Supreme Court decisions opened those flood gates. One was on California’s gay-marriage ban and the other overturned the federal Defense of Marriage Act. But Sanders says, even though those cases made Idaho’s possible, they don’t determine its outcome.

“Neither one of these two U.S. Supreme Court cases that were decided over the summer mandated that states have to recognize same sex marriages,” says Sanders. 

Even the one that effectively made same-sex marriage legal in California doesn’t directly impact how a judge in Idaho will rule. The high court didn’t rule on the merits of that case. Instead the justices left lower court rulings in place that tossed out California’s ban.

“The Ninth Circuit made very clear to limit their decision to California, that this is not a rule that’s going to apply throughout the Ninth Circuit which includes Idaho,” Sanders says.

The decisions made in other states since last summer also don’t directly affect Idaho’s case, not even in next door neighbor Utah. Last December a district judge declared Utah’s ban unconstitutional. But Sanders says district judges are generally not swayed by other district judges, especially not ones outside their appeals circuit. Utah is in the tenth. So Sanders says it’s impossible to predict the outcome of Idaho’s case. Except for one thing.

“I think regardless of how the case turns out it’s going to be before the Ninth Circuit,” she says.

That means the side that loses will almost certainly appeal the decision. But will Idaho’s same-sex marriage case go to the Supreme Court and make the U.S. history books not just the Idaho history books? Sanders says, probably not. That’s because several cases are further along in the process.

“It could very well turn out that there’s some other case on the same issues that gets to the Supreme Court first that resolves the issues that we see in [the Idaho case,]” Sanders says.

In fact Sanders thinks it’s likely that another state case will eventually get to the Supreme Court and result in a decision that will settle arguments in all the states. She says that case will go into text books and American students will study it in their history and civics classes.

The fact that the case that started its legal journey in Boise likely won’t make a big difference nationally is OK with Amber Bierle. She’s one of the plaintiffs in Idaho’s case.

“I don’t care where it happens as long as it happens,” Bierle says, referring to the hypothetical of a case causing the high court to declare all same sex marriage bans unconstitutional.  

Since last summer, in all 10 states where same-sex marriage cases have gone to federal district court, judges have ruled against state bans. Sanders says that’s remarkable, but Idaho could still buck the trend.

Monday’s hearing focuses on three motions. Idaho’s attorney general wants the case dismissed. Lawyers for the governor and the plaintiffs have both asked for a summary judgment. That means they want the judge to rule in their favor without a trial. Sanders thinks the judge will likely grant one of the summary judgment requests and not call for a full trial. The decision might come in a couple of weeks. But Sanders thinks the judge might wait to rule until one of the higher courts has decided on one of the other similar cases.

Copyright 2014 Boise State Public Radio