Idaho Gov. Butch Otter To SCOTUS: Our Marriage Ban Doesn't Discriminate Because Gays Can Marry Opposite Sex

In a reply brief to Supreme Court Justice Anthony Kennedy, Idaho Gov. Butch Otter today declared that his state's ban on same-sex marriage does not discriminate against gay people because they remain completely free to marry any person of the opposite sex.

Respondents take offense at the notion that Idaho’s man-woman marriage definition does not discriminate on its face against gay men and lesbians. But that is true: Idaho’s marriage definition, under Article III, section 28 of its State Constitution, says nothing about sexual orientation — it merely specifies that any person can marry only a person of the opposite sex. It cannot be denied that, for a variety of personal reasons, gay men and lesbians can and sometimes do marry persons of the opposite sex.

More from the Spokesman-Review:

The reply brief makes it clear that the state plans to appeal only a subsidiary issue – the standard of review – to the Supreme Court, not the full question of whether same-sex marriage is unconstitutional. “The issue in this case will be presented in a way that does not require the Court to resolve conclusively the global question of whether the Fourteenth Amendment in any of its aspects bars a State from defining marriage as the union of a man and a woman,” the brief states, saying that makes it different from the seven petitions from five states that the high court refused to take up on Monday, thus legalizing same-sex marriage in those states and others in the affected circuits.

Essentially, the state is saying it wants the high court to take up a side issue, overrule the 9th Circuit on that, and then send the case back to the 9th Circuit to be argued again there with a different standard of review. Presumably, that would then lead to another appeal to the U.S. Supreme Court on the merits of the case, extending the process by months or years.

The state’s brief takes issue with the 9th Circuit’s ruling, saying that by applying “heightened scrutiny” to cases involving discrimination based on sexual orientation, a standard the 9th Circuit established in its earlier Smith-Kline case ruling, the circuit is creating new “suspect class” of people who can’t be discriminated against. “The decision below turns not on fundamental rights but on a single Ninth Circuit panel’s path-breaking holding that gay men and lesbians constitute a suspect class protected by heightened scrutiny,” the brief says. It says the 9th Circuit is “creating the first new suspect class in 30 years.”

The bolded portion tells the real story. Read the full brief. (Tipped by JMG reader Javier)