Posts tagged: same-sex marriage
The 9th Circuit U.S. Court of Appeals has rejected, without comment, Gov. Butch Otter’s request for Idaho’s same-sex marriage case to go directly to a full 11-judge panel of the court, rather than the usual three-judge panel. Otter made the request in July, saying a full-court review by the appellate court rather than a smaller panel would enhance the “perception of the legitimacy of this court’s resolution.” It’s highly unusual for such a request to be granted.
Today, the 9th Circuit issued a 10-word order, saying only, “Appellant Otter’s petition for initial hearing en banc is denied.”
U.S. Magistrate Judge Candy Dale overturned the Idaho Constitution’s ban on same-sex marriage in May, saying it violated the U.S. Constitution’s guarantees of equal protection and due process. The state is now appealing her ruling to the 9th Circuit; the appeals court has set arguments for Sept. 8.
Here’s a link to my full story at spokesman.com on today’s federal lawsuit against the state of Idaho from Madelynn Lee Taylor, a 74-year-old Navy veteran who’s been refused permission to be buried with the cremated remains of her wife at the Idaho State Veterans Cemetery because of the state’s ban on same-sex marriage - which a federal court has ruled unconstitutional, but the state’s appealing. Taylor said she headed to court now because of concerns about her health. “I don’t have time to wait around,” Taylor said. “If it goes to the Supreme Court, the earliest they can hear it is 2015.”
With a laugh, she asked, “What harm can the ashes of two old lesbians do – do they expect us to be recruiting in there?” She said if she could talk directly to Idaho Gov. Butch Otter, she’d say, “Tell the guy over there at the V.A. to let me put my ashes in there with Jean’s – it’s not taking up any more space.”
Madelyn Lee Taylor filed a lawsuit against the state Division of Veterans Services today asking a federal judge to order the division to allow her to be buried together with the remains of her same-sex partner at the Idaho State Veterans Cemetery. Taylor, 74, is a U.S. Navy veteran with serious health problems; her wife, Jean Mixner, died in 2012 of emphysema, and Taylor has kept her cremated remains unburied in Boise because the two desire to have their remains commingled and interred together after Taylor’s death.
Taylor went to the Idaho State Veterans Cemetery in December of 2013 to arrange for the interment in a single stone columbarium; the cemetery routinely allows veterans to be buried with their spouses. Taylor presented her valid honorable discharge and valid marriage certificate – the two were legally married in 2008 in California – but the state refused to allow the burial arrangements, citing the Idaho Constitution’s ban on recognition of same-sex marriages.
That ban was declared unconstitutional by a federal magistrate judge in May, though the ruling was stayed as the state appeals to the 9th Circuit U.S. Court of Appeals; a hearing on the appeal has been set for Sept. 8.
In her lawsuit, Taylor’s attorney, Deborah Ferguson, wrote, “Idaho law goes so far as to deny her as a military veteran the basic dignity and respect of being interred alongside her lawful spouse in the Idaho State Veterans Cemetery.” She is seeking both a permanent injunction to approve her pre-registration application for interment with Mixner, and unspecified monetary damages for her injuries and expenses. You can read Taylor’s full complaint here.
In April, Idaho Gov. Butch Otter issued this statement on the issue: “The veteran’s cemetery rules require a valid marriage certificate in order for a spouse to be buried with a veteran. Idaho’s Constitution does not recognize same-sex marriage. The voters spoke in 2006 by passing an amendment to our Constitution defining marriage as between a man and a woman. I am defending their decision and the Idaho Constitution in federal court, so I’m not going to comment any further.”
Idaho Gov. Butch Otter is asking the 9th Circuit U.S. Court of Appeals to send Idaho’s same-sex marriage case directly to a full, 11-judge panel of the court, rather than the usual three-judge panel. The request for an initial “en banc” hearing is highly unusual. Typically, a three-judge panel hears appeals, and parties can then request a re-hearing by the larger panel, though that step isn’t required – and they can also appeal a three-judge panel’s ruling directly to the U.S. Supreme Court.
In most circuits, an en banc hearing means all 15 of the circuit’s judges hear the case, rather than just a three-judge panel. But because the 9th Circuit is so large – it has 29 active judges – an en banc hearing means an 11-judge panel, consisting of the chief judge and 10 others selected by random draw.
Otter argued in his motion that the larger panel would give the court’s decision greater “perception of legitimacy,” saying, “A decision by an 11-judge panel stands far higher and stronger than does a decision by a three-judge panel, just as a decision by a three-judge panel stands far higher and stronger than does a decision by a single judge.”
Carl Tobias, a professor at the University of Richmond School of Law, said the move wouldn’t necessarily fast-track the case. “Even if it’s granted, I don’t know how much faster it’s going to be,” he said. “It might even slow it down.” That’s because it could take longer to convene the larger panel, and for all 11 judges to decide on how to rule in their decision. “You’ve got 11 of them you’ve got to convince.” The 9th Circuit has set the appeal hearing in the case for the second week of September; you can read my full story here at spokesman.com.
Here’s a news item from the Associated Press: BOISE, Idaho (AP) — Four couples who successfully sued Idaho Gov. C.L. “Butch” Otter over the state's gay marriage ban are now asking to be reimbursed for nearly half a million dollars of attorney fees and other court costs. The group filed a motion in Boise's U.S. District Court on Tuesday asking that the state be ordered to pay more than $467,000 for the expenses associated with bringing the lawsuit. U.S. District Magistrate Judge Candy Dale overturned Idaho's ban on same-sex marriage earlier this month, saying the ban unconstitutionally denies gay and lesbian residents of their constitutional right to marry. Otter and Idaho Attorney General Lawrence Wasden have appealed that ruling; the case is still pending before the 9th U.S. Circuit Court of Appeals.
In their court filings requesting the fees, attorneys for the four couples wrote, “This is a landmark decision that fully vindicated Plaintiffs’ critical constitutional rights, and it is in the vanguard of a wave of civil rights victories sweeping the country. Accordingly, Plaintiffs are entitled to fully recover the reasonable attorneys’ fees that have been requested.” Click below for a full report from AP reporter Rebecca Boone.
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.”
A federal judge has ordered Utah officials to recognize more than 1,000 same-sex marriages that took place in the state before the U.S. Supreme Court issued an emergency stay, the AP reports. More than 1,000 gay and lesbian couples married in Utah after a federal judge overturned the state's same-sex marriage ban Dec. 20. Those weddings came to a halt Jan. 6 when the Supreme Court granted the stay. U.S. District Judge Dale Kimball disagreed in his ruling today, saying Utah's decision to freeze all benefits put the couples in an unacceptable legal limbo regarding adoptions, child care and custody, medical decisions and inheritance, among other things. “These legal uncertainties and lost rights cause harm each day that the marriage is not recognized,” Kimball wrote.
He stayed his ruling for 21 days to allow the state an opportunity to appeal the ruling to the 10th U.S. Circuit Court of Appeals in Denver; click below for a full report from AP reporter Brady McCombs in Salt Lake City.
Here’s a news item from the Associated Press: PORTLAND, Ore. (AP) — A federal judge has struck down Oregon's same-sex marriage ban, saying it is unconstitutional. U.S. District Judge Michael McShane threw out the voter-approved ban Monday. State officials have said they'd be prepared to carry out same-sex marriages almost immediately, and couples lined up outside the county clerk's office in Portland in anticipation of the decision. Four gay and lesbian couples brought suit arguing Oregon's marriage laws unconstitutionally discriminate against same-sex couples and exclude them from a fundamental right. State officials refused to defend the ban, and McShane earlier denied a request by the National Organization for Marriage to intervene on behalf of its Oregon members. An appeals court Monday morning refused the group's request for an emergency stay of McShane's decision.
Seventeen states and the District of Columbia allow gay marriage. Federal or state judges in Idaho, Oklahoma, Virginia, Michigan, Texas, Utah and Arkansas recently have found state same-sex marriage bans to be unconstitutional. Judges also have ordered Kentucky, Ohio and Tennessee to recognize same-sex marriages from other states.
Close to 200 people gathered on the steps of the Ada County Courthouse today for what was originally planned as a celebration of the start of legal gay marriage in Idaho, but thanks to a 9th Circuit temporary stay, instead became a feel-good gathering supporting the progress toward that goal. Here, organizer Emily Walton cuts the donated wedding cake to feed the crowd; same-sex couples, supporters, friends and family members mixed happily, some saying the gathering felt more like a reunion.
“I think this is awesome,” said a smiling Sue Latta, the lead plaintiff in the successful lawsuit that overturned Idaho’s ban on same-sex marriage. “This is not just for us, this is for everybody, young, old, gay, straight. Here’s what I believe: If we voted on it today, the constitutional amendment would not pass.” Periodically, cars passing by on busy Front Street honked their horns, prompting those along the sidewalk to wave and cheer.
Off to one side, four protesters stood quietly with signs saying, “My vote should count” and “I support you Gov. Otter and Attorney General Wasden, Idaho voted, our vote should stand.”
Walton said, “We’ve tried to avoid any really political rally stuff. We want people to be happy – this is still a great crowd.”
Here’s a link to my full story at spokesman.com on the delay in what otherwise was looking to be a historic moment tomorrow – the beginning of legal same-sex marriages in Idaho. Idaho’s gay marriage ban was overturned Tuesday when U.S. Magistrate Judge Candy Dale ruled it unconstitutional. Dale said Idaho must begin issuing marriage licenses to same-sex couples starting Friday morning at 9, but the state filed emergency motions seeking a delay while it appealed the ruling.
On Thursday afternoon, the 9th Circuit U.S. Court of Appeals issued a temporary stay, putting a hold on gay marriages in Idaho while it considers the state’s motions. The court didn’t signal how long it would take; for now, everything’s on hold. Deborah Ferguson, lead attorney for the four couples who successfully sued to overturn Idaho’s ban, noted that the 9th Circuit hasn’t decided whether Dale’s order should be stayed while it’s appealed to higher courts. It’s just given itself more time to consider the motions for such a stay and the couples’ objections to it.
Idaho Attorney General Lawrence Wasden has filed a response brief with the 9th Circuit Court of Appeals, pressing for his motion to stay the change in Idaho’s marriage laws until appeals have been completed. Wasden responds to arguments from lawyers for four same-sex couples who urged the 9th Circuit not to stay the ruling. U.S. Magistrate Judge Candy Dale issued the ruling Tuesday, declaring Idaho’s ban on same-sex marriage unconstitutional and ordering the state to permit same-sex marriages starting Friday at 9 a.m. The 9th Circuit has now issued a temporary stay, delaying that, while it considers motions from Wasden and Gov. Butch Otter to hold off on the change while the federal court decision is appealed.
Wasden argues that the U.S. Supreme Court’s order staying the effect of a decision overturning Utah’s same-sex marriage ban was “an unmistakable signal by the Supreme Court that lower federal courts should not disrupt the status quo through intrusive injunctive relief.” He also argues that there are ways the state could be harmed if there’s no stay, but the decision later is overturned on appeal, because the state would process everything from tax returns to worker’s compensation spousal benefits under the ruling, and then would have to figure out how to undo those things. All those take “significant public resources to administer,” he argued. You can read the 7-page brief here.
“As hard and as heart wrenching as this ‘temporary stay’ is for all those people who were planning to finally get married tomorrow, this may be the best thing that the court could have done,” Sue Latta, the lead plaintiff in Idaho’s same-sex marriage court case, told Eye on Boise this afternoon. “If they had had a knee-jerk reaction, we probably would have gotten a ‘stay pending appeal,’ which will take many months, but they didn't do that. They are going to take a hard look at all the new case law that has been generated … and whether it seems like the state will ultimately be successful, and I believe that they are going to deny the stay. In my heart I believe it because we are on the right side of this.”
Noted Latta, “The burden is on the state to prove that our marriages are detrimental to anyone, and they can't. We are going to win because all we are asking for is to be treated like everyone else, and that is not an unreasonable thing to ask for.”
Latta and her wife Traci Ehlers, of Boise, have been together for 10 years, and were legally married in California in 2008. They are one of four couples who successfully sued to overturn Idaho’s constitutional ban on same-sex marriage; U.S. Magistrate Judge Candy Dale ruled the ban unconstitutional on Tuesday. The state is appealing to the 9th Circuit Court of Appeals.
The Idaho Association of Counties convened county clerks from across the state in a webinar this afternoon to go over procedures to comply with the federal court decision this week legalizing same-sex marriage in the state. Just before the session started, the news came that the 9th Circuit Court of Appeals had issued a temporary stay, delaying the change, which had been scheduled to take effect Friday morning at 9. “They were pretty well ready,” said Dan Chadwick, IAC executive director. “Now we’ve been given a little bit of breathing room and we can fine-tune it a little bit more.”
The main change needed is to forms for marriage licenses, which now identify “bride” and “groom.” “The question is do you use bride-bride, groom-groom, spouse, person – there are a number of different opinions out there, and all of them are correct,” Chadwick said. “Part of the discussion was to make sure that the marriage license itself ends up in a format that is a family keepsake, because it is.”
He said, “We have given ourselves a deadline of Tuesday of next week to finalize the forms, because we don’t know what the courts are going to do. What we want to do is be ready if the stay is lifted and the injunction goes into effect, and we’re pretty close.”
The county clerks conferred with Idaho Attorney General Lawrence Wasden and representatives of the state’s bureau of vital statistics at the webinar, Chadwick said. “We had over 50 participants on the webinar. My guess is we had pretty close to every county participating.”
Said Chadwick, “If the injunction goes into effect, the counties are ready to perform their duty.”
North Idaho Unitarian Universalist Fellowship minister Tracy Springberry had planned to be at the Kootenai County Courthouse in the morning to perform same-sex marriages for free for anyone who wanted them, and was disappointed to hear this afternoon of the temporary stay from the 9th Circuit, delaying the change in Idaho’s marriage laws. “That makes me mad,” she said. “I was so hopeful that would not happen. … I guess we won’t do that.”
Springberry said Unitarian Universalists have been performing same-sex marriage ceremonies since the ‘70s. “We really believe, in my tradition, that people who are in committed, loving relationships need to have those recognized by their communities and their societies and have legal protections, and that everyone should be treated equally and respectfully,” she said. “The status of things in our country at this point sometimes means I cannot live out my faith – for me, it’s a very important religious issue.”
Springberry said she’d put the word out that she’d be at the courthouse, following the lead of other Unitarian Universalists in other states when their states legalized same-sex marriage. “I’m sad,” she said. “But I kind of feel like this is sort of the way this goes. It’ll be a bumpy ride. I think it’ll probably pass eventually.”
A party at the Ada County courthouse featuring wedding cake for 300 is still on, says organizer Emily Walton, even though the 9th Circuit Court of Appeals has issued a temporary stay of the ruling overturning Idaho’s ban on same-sex marriage. The ruling otherwise would have taken effect at 9 a.m. on Friday.
“We knew all along a stay could be issued at any time,” Walton said. “I know it won’t be as fun at all, but I think it’s really good to get together and show support.” Now, instead of celebrating same-sex couples getting married, she said, “It’s about couples who can’t get married now.”
The cake has been ordered from – and largely donated by – Pastry Perfection, and will feature white frosting, rainbow sprinkles and rainbow ribbon, Walton said. Flying M has donated coffee for the party. “We really wanted it to be just like a wedding reception,” she said. “I know eventually gay people in Idaho will be able to get married, just maybe not tomorrow.”
Gov. Butch Otter issued the following statement on the temporary stay issued this afternoon by the 9th Circuit Court of Appeals, blocking legal same-sex marriage from beginning tomorrow morning at 9:
“I appreciate the 9th U.S. Circuit Court of Appeals stepping in to ensure Idaho will not have to endure the same kind of chaos and confusion that Utah faced after a similar lower-court decision. Today’s ruling stays the federal magistrate’s order and maintains the status of marriage as defined by the Idaho Constitution – between one man and one woman. Meanwhile, I am proceeding with an aggressive challenge in the appellate court. I’m hopeful for a better outcome, but in any event I am committed to defending our Constitution and the will of Idaho voters.”
The 9th Circuit Court of Appeals has just issued a stay, temporarily halting U.S. Magistrate Judge Candy Dale’s order permitting same-sex marriage in Idaho from taking effect as scheduled Friday morning. The appeals court’s brief order says Dale’s decision “is temporarily stayed pending this court’s disposition of appellants’ emergency motions for a stay pending appeal.”
The court didn’t signal how long it would take to consider those motions. For now, everything’s on hold.
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.
Catching up on a couple of items from yesterday:
The Idaho Republican Party issued a statement decrying U.S. Magistrate Judge Candy Dale’s ruling overturning Idaho’s ban on same-sex marriage. In it, party Chairman Barry Peterson said, “The disintegration of marriage will lead to the disintegration of our society. Judge Dale is wrong. The State has a valid interest in promoting the optimal circumstance for every child - and that is being raised in a home with both a loving mother and father.” You can read the full statement here.
And longtime state Rep. Shirley Ringo, D-Moscow, who is running for Idaho’s 1st District congressional seat, sent out a statement calling on Gov. Butch Otter to “immediately accept the federal court ruling” and allow Navy veteran Madelynn Lee Taylor to be buried with her late wife, Jean Mixner, at the Idaho State Veterans Cemetery. “I know Gov. Otter is going to appeal this ruling – he has an election next week, after all – but I hope he’ll make a call to the cemetery’s administration and ask that they find a spot for Jean before he races to court,” Ringo said. “More importantly, I hope he’ll reconsider his position and embrace marriage equality here in Idaho.” You can read her full statement here.
Idaho Attorney General Lawrence Wasden has now filed an emergency motion with the 9th Circuit Court of Appeals as well, seeking to delay the effective date of a federal judge’s order permitting same-sex marriage in Idaho starting Friday morning. Wasden argues that the couples who sued to overturn the ban would be the ones harmed if a stay isn’t granted, because they’d be allowed to marry, but then, if the ruling is subsequently overturned on appeal, their marriages could be legally undone. “None of the parties’ interests, nor those of non-party same-sex couples, are served by the manifold complications attendant to such ‘de-marriage,’ the Attorney General argues. “Absent a stay, marriages would be entered into under a cloud of potential impermanence that has quite significant practical consequences if the district court got it wrong.”
You can read the attorney general’s motion here.