Idaho gay marriage fight might hit High Court

Gov. Butch Otter's battle to prevent the implementation in Idaho of same-sex marriage, aided by an 11th hour decision of Justice Anthony Kennedy to stay the 9th Circuit Court of Appeals' order to proceed with marriage equality, may become the case, or at least one of the cases, that forces the U.S. Supreme Court to determine whether the Constitution protects gay marriage. Despite the air of inevitability that surrounds the establishment of same-sex marriage in America, some very important substantive work awaits the High Tribunal, as well as its own sense of how to handle a civil rights issue of historic importance that ranks alongside its landmark ruling in Brown v. Bd. Education, in which it held segregation in public schools unconstitutional.

In his emergency appeal to Justice Kennedy, Gov. Otter challenged the 9th Circuit Court's invocation of the "heightened" scrutiny test to strike down Idaho's constitutional ban on same-sex marriage. While the governor's attorneys maintain that Idaho law should survive that test, which requires a compelling governmental interest to justify legislation that discriminates against fundamental rights, including equal protection they argued, nonetheless, that "sexual orientation" is not a category protected by the 14th Amendment.

The legal standard that should apply in cases involving same-sex marriage is the source of some conflict among the circuit courts, a condition which might well persuade the court to review the Idaho case, and others, that are the subject of varying standards. Conflict among the circuits is typically viewed as the primary reason for the high court's review of appellate decisions. There remains the possibility that the 5th, 6th or 11th Circuit Courts, in which same sex-marriage cases are pending, might uphold a state ban, which would produce the sort of conflict that the U.S. Supreme Court would find necessary to address.

There is a broad presumption among officeholders and scholars across the nation that the high court will uphold the constitutionality of same-sex marriage. That expectation was bulked by the court's recent refusal to hear state appeals defending state bans, which meant, for various reasons, that there were not even four Justices who were willing to hear those cases. That action by the court means that the green light has been given to same-sex marriage in some 30 states.

That expectation, moreover, is reinforced by the roughly 40 state and federal judicial decisions over the past 15 months that have struck down state prohibitions of same-sex marriage, and public opinion polls revealing that a majority of Americans support marriage equality. Interestingly, 80 percent of Americans under the age of 30 approve of same-sex marriage. In short, the tides of law, public opinion, politics and, yes, history, are surging toward the effectuation of same-sex marriage.

What remains, of course, is a final ruling from the court, and the disposition of the Justices on the question of shaping its eventual decision that the Constitution does, indeed, protect same-sex marriage. Will the Justices find it desirable or necessary to produce a unanimous decision, as they did in Brown? In that 1954 landmark case, Chief Justice Earl Warren and Justice Felix Frankfurter thought anything less than unanimity would inspire political opponents to exploit dissenting opinions as a means of weakening the court's ruling and undermining, at some future date, its conclusion that segregation in the public schools violates the 14th Amendment's equal protection and due process clauses.

Assuming that the Supreme Court does decide to uphold same-sex marriage, will the current Justices harbor the concerns of their predecessors and seek to fashion unanimity on the issue, one of the most important civil rights issues of our time?

David Adler is the Director of the Andrus Center for Public Policy at Boise State University, where he holds appointment as the Cecil D. Andrus Professor of Public Affairs.