A three judge panel in San Francisco Monday will hear arguments for and against Idaho’s ban on same-sex marriage. A lower federal court has already ruled the law unconstitutional, but Idaho is challenging that decision and now the 9th U.S. Circuit Court of Appeals will weigh in.
In this case, four lesbian couples sued Idaho for the right to marry or have their marriages from other states recognized.
Oral arguments begin Monday at 2 p.m. MST. It will be live streamed here. The court is also hearing similar appeals from Hawaii and Nevada, so it may be evening before Idaho’s case comes up.
Lawyers for the couples who brought the suit will base their arguments on the constitutional issues of due process and equal protection, says University of Idaho law professor Shaakirrah Sanders.
Lawyers for the state, Sanders says, will have to show that Idaho’s ban is part of an important government interest.
“Now the state’s argument -- is that ‘well we really want to preserve marriage for couples who have the ability to procreate, as a way to protect families and to incentivize people to marry when they have children,” Sanders says.
Courts all over the country have heard these same arguments many times in the last year Sanders says. Most of those courts were not convinced. Sanders says in the 7th U.S. Circuit Court of Appeals, which ruled against bans in Indiana and Wisconsin last week, one judge chastised state attorneys for regurgitating old arguments.
“I think the judges really do want to hear something new, as long as it’s a credible something new,” Sanders says. “I think they want a real explanation of how it will hurt marriage as it already exists to expand it to include same-sex couples.”
She says those who are defending bans have so far struggled to do that. She says lawyers for the state of Idaho will have to be much more persuasive if they hope for success.
Sanders believes the 9th circuit will be fairly quick in issuing a ruling on Idaho’s case, likely within a month. But even if the judges uphold the lower court ruling, same-sex marriage could still be on hold in Idaho until the U.S. Supreme Court takes up the issue.
Follow reporter Adam Cotterell on Twitter @cotterelladam
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