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Whether three of Idaho’s laws that variously recognize only marriages between a man and a woman, a second that provides no mechanism for recognizing the validity of out-of-state, same-sex marriages, and a third law banning the legal recognition of same-sex marriages in general, violate the Due Process and Equal Protection clauses of the 14th Amendment.
The plaintiffs were eight gay Idaho residents. The two unmarried and two married gay couples wanted either to be married in Idaho or have their out-of-state, same-sex marriages legally recognized. The constitution and code of Idaho, however, recognized only those marriages between a man and a woman, whether conducted within Idaho or in another state. The Supreme Court had previously dismissed an appeal on homosexual marriage bans in Baker v. Nelson (1971) “for want of a substantial federal question,” ruling that regulation of marriage was a state matter. Since the 1970s, state and federal courts, state constitutional amendments, and federal and state legislation had variously sanctioned, struck down, supported, or prohibited same-sex marriage throughout the United States in an ongoing nationwide debate on the issue.
The plaintiffs wanted to end debate and negate Supreme Court precedent by having the federal courts strike down Idaho’s laws, claiming that the state was depriving them of their constitutionally protected, fundamental right to have their homosexual marriages legally recognized. They cited legal and medical hurdles facing non-married homosexual couples, and at least some felt demeaned after the state refused to recognize their marriages. They filed suit against the governor and others in their official capacities asking the court to strike down the Idaho laws as violations of the Due Process and Equal Protection clauses of the 14th Amendment.
The Court Below
The U.S. District Court of Idaho was the first to hear the case. The court ruled in favor of Latta, holding that Idaho’s laws were unconstitutional for violating the Due Process and Equal Protection clauses of the 14th Amendment. Otter appealed. See opinion below:
Latta v. Otter, 19 F.Supp.3d 1054 (D. Idaho, 2014)
The Ninth Circuit Court of Appeals upheld the district court’s ruling. See opinion below:
Latta v. Otter, 771 F.3d 456, (9th Cir., 2014)
Otter petitioned the Supreme Court for a writ of certiorari, but was denied following Obergefell v. Hodges, 576 U.S. (2015), in which the Supreme Court ruled that gay couples have a fundamental right to marry, which the Supreme Court held is protected under the Due Process and Equal Protection clauses of the 14th Amendment.
Per the Ninth Circuit’s order, CCJ requested that the amicus curiae brief in the parallel Sevcik v. Sandoval (2014) case out of Nevada be deemed also filed in Latta v. Otter. They are identical, and the Sevcik brief is summarized below.
Eight principles of federalism and judicial restraint call for the courts to exercise the “utmost care” when considering novel constitutional rights, such as those considered in this case. They uniformly counsel against the recognition of a federally mandated right to same-sex marriage.
First, federalism and deference to the states as joint participants in governance urge this court to restrain itself in this matter, especially since the regulation of marriage is traditionally a state concern. In United States v. Windsor (2013), and elsewhere, the Supreme Court repeatedly emphasized the states’ authority to define and regulate marriage without interference from federal courts.
Second, out of respect for the states’ roles as laboratories of democracy, this court should be loath to short-circuit democratic experimentation in areas of social policy. As Justice Brandeis first wrote in New State Ice Co. v. Liebmann (1932)—sentiments that the Supreme Court has echoed repeatedly into the modern day—“It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” State democratic processes, not federal courts, are the fundamental incubators of newly emerging conceptions of liberty, and it is the states and the people thereof who should (and do) deliberate the social policies under which they may choose to live.
Third, particular caution is appropriate when the courts are called upon to constitutionalize newly asserted liberty and equality interests. There are few clear guideposts for defining the parameters of “liberty” in the 14th Amendment and the so-called “rights” it may entail. If the boundaries of marriage are to be constitutionalized, federal courts will inevitably be called upon to determine whether other persons in committed personal relationships—including those whose cultures or religions may sanction relationships long disfavored in American law—are likewise entitled to enjoy marital recognition.
Fourth, the court should hesitate to recognize a new right when there is no close connection between the right asserted and the central purpose of the constitutional provision. The clear and central purpose of the Fourteenth Amendment of 1868 was to eliminate all official state sources of racial discrimination in the states—not to protect a right of homosexuals to have their marriages recognized.
Fifth, the court should refrain from recognizing a novel right to same-sex marriage in the absence of an established or emerging national consensus in favor of that right. In the past, when there has been a national consensus in favor of a new liberty or equality interest, the court has given weight to such consensus in recognizing the expanded right. No such national consensus exists in the ongoing debate on same-sex marriage. There has been no persistent, uniform trend in a single direction, which the court has considered in past cases. At this time, more than 30 states still define marriage as the union of one man and one woman, all adopted in the past 15 years for the purpose of clarifying that marriage does not include same-sex relationships.
Sixth, the court should not constitutionalize a right that is currently the subject of such an active, multi-sided debate. The court took this position of restraint in cases considering physician-assisted suicide and similar issues touching on morality and legality. Inserting court opinions into the debate short-circuits the democratic process by taking decision-making out of the hands of state legislatures and state courts and puts it in the hands of the federal judiciary. Same-sex marriage is the subject of ongoing legal development and public debate.
Seventh, the court should consider incremental change over sweeping and dramatic change in addressing novel constitutional rights. The court typically takes this approach, and in one notable exception—Roe v. Wade (1973), which invalidated with the stroke of a pen the abortion laws of most states—the court was heavily and widely criticized. Enshrining same-sex marriage in the Constitution also would be such a sweeping and imprudent change.
Finally, the court should consider the novelty of this asserted right. The Supreme Court has long considered such assertions in light of the nation’s history and tradition, and indeed tends protect them by striking down novel laws that infringe on such longstanding, traditionally recognized rights. In this case, on the contrary, the longstanding tradition is that marriage is between a man and a woman—not between those of the same sex. The reaffirmation of this longstanding understanding and tradition is clear in the dozens of state laws defining marriage as between a man and a woman.
Otter petitioned the Supreme Court for a writ of certiorari, but was denied following Obergefell v. Hodges, 576 U.S.___(2015). Much like its consideration of CCJ’s arguments in Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014), the Court essentially ignored the historical understanding of marriage, it ignored the preferences of the majority of the people of the states, it saw no legal difference between heterosexual and homosexual marriages, and it rejected long-held precedent that the regulation of marriage is a state prerogative.
Instead it ruled that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process and Equal Protection clauses of the 14th Amendment.