Idaho leaders explain legal tactic on gay marriage

Idaho’s governor and attorney general say they’ll focus their appeal in the gay marriage lawsuit on the standard of review used by the 9th U.S. Circuit Court in overturning Idaho’s same-sex marriage ban.

The circuit court applied a standard called “heightened scrutiny” when it found that Idaho’s prohibition on same-sex marriages is unconstitutional.

The heightened scrutiny standard means that the state had the burden of proving that the marriage ban doesn’t discriminate against same-sex couples. Gov. C.L. “Butch” Otter and Attorney General Lawrence Wasden say the court should have used the “rational basis” standard instead, which would require the plaintiffs to prove that they were discriminated against.

Wasden and Otter explained their position in a brief filed with the U.S. Supreme Court on Friday. They want the high court to keep same-sex marriages on hold until the 9th Circuit considers their appeal.