Eye On Boise

TUESDAY, MAY 20, 2014, 5 P.M.

9th Circuit grants stay in marriage case

A three-judge panel of the 9th Circuit U.S. Court of Appeals has stayed the federal court decision legalizing same-sex marriage in Idaho while the decision is appealed to higher courts. You can read the 9th Circuit's four-page order here; and read my full story here at spokesman.com. While granting Idaho Gov. Butch Otter and Attorney General Lawrence Wasden's motion for a stay - preventing the change from taking effect while the case wends its way up on appeal - the 9th Circuit panel also granted the request from the four couples who successfully sued, to "expedite" the case, speeding it up from the usual handling in the 9th Circuit.

That means the opening briefs are due July 19, the answering briefs by July 18, with final replies 14 days later; no extensions will be granted; and the 9th Circuit will hear the arguments in the appeal the week of Sept. 8 in San Francisco.

The three-judge panel cited the Utah case in which the U.S. Supreme Court issued a stay putting the overturning of that state's same-sex marriage ban on hold pending appeal, the Herbert v. Kitchen case. However, one of the three judges, while concurring with the decision, wrote that if it weren't for that one stay ruling, he wouldn't have supported it. Judge Andrew D. Hurwitz wrote, "I find it difficult to conclude that the Idaho ban on same-sex marriage would survive interim Ninth Circuit review."

Hurwitz noted that the Herbert ruling was just a "terse two-sentence order." He wrote, "Although the Supreme Court's order in Herbert is not in the strictest sense precedential, it provides a clear message - the Court (without noted dissent) decided that district court injunctions against the application of laws forbidding same-sex unions should be stayed at the request of state authorities pending court of appeals review."

Shannon Minter, one of the attorneys for the four Idaho couples who successfully sued to overturn the law, said, "We are very pleased that the court ordered expedited review and understood the critical importance and urgency of the issues in this case for Idaho's same-sex couples and their children. We look forward to defending Judge Dale's careful, thorough decision before the Ninth Circuit."

Lori Watsen, who with her wife Sharene was among the couples bringing the case, said in a statement, "While Sharene and I are disappointed that the state won't have to respect our marriage right away, we're happy that the case is being fast-tracked. We look forward to the day our home state treats our marriage equally and we have the same legal protections as other married couples in Idaho." 




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Betsy Z. Russell
Betsy Russell covers Idaho news from the state capitol in Boise and writes the Eye on Boise blog.

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