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THOMAS C. PERRY, ISB #7203

CALLY A. YOUNGER, ISB #8987
Counsel to the Governor
Office of the Governor
P.O. Box 83720
Boise, ID 83720-0034
Telephone: (208) 334-2100
Facsimile: (208) 334-3454

Attorneys for Defendant, Governor C.L. Butch Otter

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
SUSAN LATTA and TRACI EHLERS, LORI )
WATSEN and SHARENE WATSEN, SHELIA )
ROBERTSON and ANDREA ALTMAYER, )
AMBER BEIERLE and RACHAEL )
ROBERTSON, )
)
Plaintiffs, )
)
vs. )
)
C.L. (BUTCH) OTTER, as Governor of the State )
of Idaho, in his official capacity, and )
CHRISTOPHER RICH, as Recorder of Ada )
County, Idaho, in his official capacity, )
)
Defendants, )
)
and )
)
STATE OF IDAHO, )
)
Defendant-Intervenor. )



Case No. 1:13-cv-00482-CWD

GOVERNOR OTTERS RESPONSE
TO PLAINTIFFS NOTICE OF
ADDITIONAL AUTHORITY (Dkt No.
92)
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Defendant Governor Otter respectfully responds to Plaintiffs Notice of
Additional Authority (Dkt No. 92): Baskin v. Bogan, 2014 WL 1568884 (S.D. Ind. Apr.
22, 2014); and Henry v. Hines, 2014 WL 1418395 (S.D. Ohio Apr. 14, 2014).
1. Baskin v. Bogan: Although Baskin is distinguishable because it was decided on a
standard of review for preliminary relief which, unlike the Ninth Circuits standard, requires
simply that success on the merits be more than negligible, Governor Otter responds here to that
district courts core holding (at 7-8) that the state there (Indiana) will likely be unable to prove a
legitimate state interest underlying its man-woman definition of marriage, including Indianas
desire to maintain social norms that promote the well-being of children.
The Baskin courts rejection of Indianas concern about the dilution of child-friendly
social norms ignores the laws important and well-recognized role and power as a teacher of the
public. See Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 375 (2001) (Kennedy, J .,
concurring). Enshrined in law, the man-woman meaning at the core of the marriage institution
teaches social norms speaking primarily to heterosexual parents and potential parentsfor
example, that in child-rearing both gender diversity and biological connectedness matter.
Over time, de-institutionalizing the man-woman meaning by force of law will weaken
these and other norms currently associated with marriage, with the result that some (though not
all) heterosexual parents and potential parents ultimately will cease to act in accordance with
them. See, e.g., Governor Otters Response Brief (Dkt No. 81, at 3-4); Profs. Hawkins and
Carroll Amicus Brief (Dkt No. 81-1; Tab 2 at 37-78). Over time, that in turn will likely increase
the number of children of heterosexual parents who grow up without their fathers, and who
(according to unrefuted social science) will thereby face greater risks of abuse, crime, teen
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pregnancy, poverty, school failure, psychological problems, poor health and substance abuse.
See id.
These are matters of substantial concern to the State of Idaho and qualify as legitimate
and compelling State interests.
2. Henry v. Hines: While Henry is incorrect on many points, Governor Otter
responds here to its incorrect use of Loving to find sex discrimination.
First, as Henry correctly recognizes in the race context, the freedom to marry . . . resides
with the individual rather than the couple. A couple has no gender, which is by definition a
characteristic of an individual. Here, there is no dispute that Idahos marriage definition treats
individuals the same with respect to sex: Idahos Marriage Laws requirement of a man-woman
couple applies equally to men qua men and women qua women.
Second, although Loving found an equal application argument insufficient to sustain an
anti-miscegenation law, the Supreme Court arrived at that decision because the law had a clear
racially discriminatory purpose and disparate impact: the Court found the law was designed to
maintain White supremacy. Here, none could contend that Idahos marriage definition is
designed to have or actually has a disparate impact on men as a class or women as a class.
Third, Henrys analogy to Loving disregards that Idaho as a matter of policy and law has
no public interest in recognizing emotional commitments between any couples, regardless of
orientation. Indeed, Governor Otter does not dispute that gay couples can be as emotionally
devoted to each other as any couples. Rather, Idahos public purposes with its Marriage Laws is
to create incentives to bind parents with their children and thus to (1) reinforce the value of every
child being connected to his or her mother and father; (2) maintain a child-centric marriage
culture increasing the likelihood that biological parents stay together even when adult emotions
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fade; and (3) reduce the risks and attendant ills of fatherlessness and motherlessness. That is
another reason Loving is inapposite: race has nothing to do with these vital and compelling State
interests; sexual complementarity has everything to do with them.
Again, Governor Otter has demonstrated that Idaho has sufficiently good reasons for
retaining the man-woman definition of marriage.

DATED: May 2, 2014



By /s/ Thomas C. Perry
THOMAS C. PERRY
Counsel to the Governor





























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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on May 2, 2014, I electronically filed the foregoing
with the Clerk of the Court using the CM/ECF system, which caused the following parties
or counsel to be served by electronic means, as more fully reflected on the Notice of
Electronic Filing:

Deborah A. Ferguson
d@fergusonlawmediation.com

Craig Harrison Durham
craig@chdlawoffice.com

Shannon P. Minter
sminter@nclrights.org

Christopher F. Stoll
cstoll@nclrights.org

W. Scott Zanzig
scott.zanzig@ag.idaho.gov

Clay R. Smith
clay.smith@ag.idaho.gov




/s/ Thomas C. Perry
THOMAS C. PERRY
Counsel to the Governor
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