Otter Warns Judges Against Activism in Gay Marriage Fight

By Tom Bacon

Idaho Governor Butch Otter is not only mounting a vigorous defense of Idaho's constitutional mandate that marriage is between a man and a woman, he's also wagging an admonishing finger at the judges who will decide the case.

In his final brief filed with the 9th Circuit Court of Appeals before Idaho's gay marriage case and those of three other states are decided, Otter's lawyers warned the appeals judges they'd better watch their judicial step. Otter's team warned "to ignore or otherwise evade a party's well-supported argument does not meet the standard of judicial performance". But in cases where courts have ruled in favor of genderless marriage, Otter argued, judges have done exactly that - either run over state law or even caricatured their arguments to make them seem less persuasive.

Idaho's argument in the case of four same-sex couples is that the state has has a legitimate interest in strengthening the man-woman marriage institution - indeed, that the traditional definition of marriage will  be suppressed if same-sex couples are given equal rights.

The state contends that limiting marriage to a man and a woman is not out of animus toward same-sex couples, but rather fulfillment of an obligation that a child ought to know and be raised by his or her mother and father. Genderless marriage, the state argues, will officially retract and repudiate that norm. Otter contends that sanctioning genderless marriage will include polygamy, marriage of children, and marriage of siblings.

Appeals judges of the 9th Circuit Court have four gay marriage cases in hand - from Idaho, Oregon, Nevada and Hawaii. They've scheduled final oral arguments in what promises to be a lively session in San Francisco on September 8th.
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