The James R. Browning U.S. Courthouse in San Francisco, home of the Ninth Circuit Court of Appeals. Photo: Ernest McGray, Jr.

The James R. Browning U.S. Courthouse in San Francisco, home of the Ninth Circuit Court of Appeals. Photo: Ernest McGray, Jr.

BOISE, Idaho — The 9th U.S. Circuit Court of Appeals has denied Gov. C. L. “Butch” Otter’s request for a review of the court’s ruling last year that overturned Idaho’s ban on gay marriage.

Otter had requested that an 11-judge panel review the October decision by three judges that Idaho’s same-sex marriage ban was unconstitutional. On Friday, the 9th Circuit rejected Otter’s request.

Three judges dissented from the majority, noting that a 6th Circuit decision upheld similar laws in four states.

“Clearly, the same-sex marriage debate is not over,” the three said in a 25-page dissent, adding that “thoughtful, dedicated jurists” have considered the issue and come up with differing results. The dissenting judges called the issue a “question of exceptional importance” that should have been reviewed.

Gay couples have been able to marry since shortly after the original appellate court ruling. Four lesbian couples filed the lawsuit challenging the state’s marriage ban.

The National Center for Lesbian Rights praised Friday’s decision, saying the original three-judge ruling was consistent with other federal judicial decisions, “which have rightly concluded that our Constitution cannot tolerate the profound harm that denying same-sex couples the freedom to marry inflicts (on) those couples and their children.”

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Last week, Otter and Idaho’s attorney general filed separate petitions to the U.S. Supreme Court, fighting against gay marriage and arguing that the state’s case has national consequences.

Attorney General Lawrence Wasden’s filing stated that the issue is a matter of a state’s right to define marriage without the federal government’s involvement.

Otter asked the Supreme Court to review Idaho’s case alone or in addition to a pending case involving the 6th Circuit, which upheld the right of Kentucky, Michigan, Ohio and Tennessee to decide whether to allow gay marriage.

Otter’s petition maintains that unlike in other states, Idaho’s public officials have not shied away from defending a broad definition of heterosexual marriage.

The order (and dissenting opinion) is here →

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