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1:13-cv-00482 #93

1:13-cv-00482 #93

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Published by Equality Case Files
Doc 93 - Governor's Notice of Additional Authority: Schuette v. Coalition to Defend Affirmative Action
Doc 93 - Governor's Notice of Additional Authority: Schuette v. Coalition to Defend Affirmative Action

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Published by: Equality Case Files on May 02, 2014
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08/17/2014

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1 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 OTTER’S NOTICE OF ADDITIONAL AUTHORITY
Case 1:13-cv-00482-CWD Document 93 Filed 04/29/14 Page 1 of 4
 
2 Defendant Governor Otter respectfully submits for the Court’s consideration the following additional authority, which was decided after briefing was completed on the  pending motions to dismiss and for summary judgment:
Schuette v. Coalition to Defend  Affirmative Action,
 No. 12-682 (U.S. April 22, 2014), slip opinion attached. In
Grutter v. Bollinger 
, 539 U.S. 306 (2003), the Supreme Court upheld the limited use of racial preferences in university admissions while making clear that its holding did
not 
 apply to states that banned preferences: “[T]he States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear.”
 Id.
 at 342 (quoting
United States v. Lopez
, 514 U.S. 549, 581 (1995)(Kennedy, J., concurring)). The Court elaborated on that principle in
Schuette
, which squarely held that a state’s voters
can
 ban preferences, and in so doing reinforced Governor Otter’s points about the importance of letting the people make difficult policy choices through democratic means. Specifically, while acknowledging an individual’s right “not to be injured by the unlawful exercise of governmental power,” Justice Kennedy’s plurality opinion emphasized that “[o]ur constitutional system embraces ... the right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times....”
Schuette,
slip op. at 15-16. “Were the Court to rule that the question addressed by Michigan voters is … too delicate to be resolved [by the people] …, that holding would be an unprecedented restriction on the exercise of a fundamental right held not just by one person but by all in common. It is the right to speak and debate and learn and then … to act through a lawful electoral process.”
 Id.
at 16;
accord
concurrence of Breyer, J.,
 
at 6.
Case 1:13-cv-00482-CWD Document 93 Filed 04/29/14 Page 2 of 4
 
3 So too here. In
Windsor 
, the Court held that the federal government lacked authority to override state laws redefining marriage in genderless terms. But the last sentence of Justice Kennedy’s majority opinion clarified that it did
not 
 apply to states retaining the one-man, one-woman marriage definition: “This opinion and its holding are confined to . . . lawful [same-sex] marriages.”
United States v. Windsor 
, 133 S. Ct. 2675, 2696 (2013). Like
Schuette
 (and consistent with
 Baker 
), this Court should hold that Idaho’s voters appropriately exercised their “fundamental right” to collective democratic action when they decided to preserve the man-woman definition that pre-dates government itself. DATED: April 29, 2014 By /s/
Thomas C. Perry
T
HOMAS
C. P
ERRY
Counsel to the Governor
Case 1:13-cv-00482-CWD Document 93 Filed 04/29/14 Page 3 of 4

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