The four couples who successfully sued to overturn Idaho’s ban on gay marriage have filed a 23-page brief in the 9th Circuit Court of Appeals objecting to the state’s motion for a stay that would block the decision from taking effect tomorrow morning. You can read their brief here.
While Gov. Butch Otter is arguing that a stay should be issued while the state appeals U.S. Magistrate Judge Candy Dale’s ruling, pointing to stays issued in other same-sex marriage cases including one issued by the U.S. Supreme Court in a Utah case, the plaintiffs say the Utah case was the first one to come up after the Windsor decision in which the U.S. Supreme Court overturned the federal Defense of Marriage Act, or DOMA. “The stay application had to be measured against a limited jurisprudence of a single case,” wrote Deborah Ferguson, lead attorney for the couples. Subsequent stays were issued citing that case, she wrote. “Since that decision, however, an unbroken wave of federal and state courts in every corner of the nation – including Arkansas, Illinois, Indiana, Kentucky, Michigan, New Mexico, New Jersey, Ohio, Oklahoma, Tennessee, Texas and Virginia – have come to the same conclusion: In the wake of Windsor, marriage equality is a constitutional imperative. Not a single court in the nation has found to the contrary.”
Ferguson argued that the state’s motions for an emergency stay, rather than deferring to the Utah decision, should be subject to a four-part test: 1, whether the state is likely to succeed on the merits; 2, whether the state would be “irreparably injured” if a stay isn’t issued; 3, whether issuing a stay would “substantially injure” same-sex couples; and 4, “where the public interest lies.”
She argued that the state’s motion for the stay fails all four points in the test. “Defendants are unable to articulate any concrete way in which permitting same-sex couples to marry or recognizing their existing marriages would be detrimental to the State or its residents, much less cause irreparable harm,” Ferguson wrote. “Moreover, the public is harmed when families and children are deprived of the benefits and stability that marriage provides.”
The plaintiffs asked that if the 9th Circuit does decide to issue a stay, it speed up its handling of the appeal from the usual timeframe, and hear arguments this summer.