The long-anticipated legal challenge to Idaho's ban on same-sex marriage, one of more than 30 lawsuits across the nation urging marriage equality, cut the legs from beneath the state's defense of its one man-one woman union with a powerful blow to the claims of tradition: "Traditional discrimination is just another way of saying discrimination that has happened for a long, long time."
Tradition, like legal history, certainly has its claims. But, as Justice Oliver Wendell Holmes observed, there is little merit in defending an age-old practice simply because it has endured a few hundred years. The test of tradition is measured by its strength at any juncture. Otherwise, discrimination in any form would withstand intellectual developments, new scientific evidence and changing patterns of public opinion.
Deborah Ferguson, the plaintiffs' attorney in the lawsuit brought before U.S. Magistrate Judge Candy W. Dale, deftly assailed Idaho's marriage laws, grounded on traditional defenses. Ferguson's narrative wisely drew upon the language and reasoning of the U.S. Supreme Court's opinion last June, in United States v. Windsor, when the court struck down the federal Defense of Marriage Act for singling out same-sex couples for "punishment" and denial of benefits conferred upon heterosexual couples. Drawing on Justice Kennedy's reasoning in Windsor, Ferguson told the court that equal protection and due process considerations under the 14th Amendment prohibit Idaho from relegating same-sex couples to a second-class status: "The state can't select a preferred group of Idaho families for special preference and recognition."
Idaho's marriage ban was defended by Deputy Attorney General Scott Zanzig and Gov. Otter's attorney, Thomas Perry, as ably as possible. But Idaho's ban, like those in other states that have been held unconstitutional by federal district courts in 10 out of 10 cases, suffers from deficiencies that are difficult to overcome, even by the most skillful attorneys. In the face of the momentum generated by the Windsor decision, which Justice Scalia rightly predicted would carve a path toward same-sex marriage, the attorneys representing Idaho's ban carried a toolbox too light on case law and forceful reasoning.
The state's case was made even more difficult in January when the 9th Circuit Court of Appeals held in SmithKline v. Abbott that a "heightened scrutiny" standard should be applied in cases involving discrimination on the basis of sexual orientation. That standard shifts the burden of proof to the state, making it easier for plaintiffs to overturn Idaho's ban as discriminatory.
Thus, it was little wonder that state attorneys urged Judge Dale to apply a "rational basis" test, a lower bar that would require Idaho to demonstrate that the ban is "reasonable." The problem, of course, is that Idaho is part of the 9th Circuit. When Justice Sonia Sotomayor testified before the Senate Judiciary Committee during her confirmation hearings, she pointed out that lower courts are expected to enforce the law of their circuit.
The standard that Judge Dale ultimately applies in rendering her decision might not matter a great deal. It's possible that she might hold that the Idaho law fails to meet either standard. State bans on same-sex marriage are falling across the nation.
As one observer listened to the dissipating force of the reasoning defending Idaho's ban, it reminded him of the evaporation of water on pavement on a hot summer day. Those who listened to the arguments in Loving v. Virginia (1967), when the Supreme Court struck down Virginia's ban on interracial marriage, must have drawn similar conclusions. Traditions that maintain discrimination in America are losing currency.
David Adler is the Cecil D. Andrus professor of public affairs at Boise State University, where he serves as director of the Andrus Center for Public Policy.