Advertise Here

Eye On Boise

Posts tagged: same-sex marriage

Ada County sets marriage license record: 45 today, all to same-sex couples

As of the close of business today at 5 p.m., Ada County had set a record for marriage license issuance, issuing 45 licenses, all of them to same-sex couples. That's according to Chief Deputy County Clerk Phil McGrane, who said, “This is the most licenses Ada County has issued in a single day.”

Here, in this AP photo, Guy Wordelman, left, marries James Wordelman outside the courthouse this morning, with Pastor Renee McCall officiating.

9th Circuit issues published opinion on legal reasons for lifting of stay; that now can be cited in other cases

The 9th Circuit Court of Appeals issued a published opinion today, detailing its legal reasoning for lifting a stay and putting into effect its order legalizing same-sex marriage in Idaho. “We decline to deny the plaintiffs their constitutional rights any longer,” the unanimous three-judge panel of the court wrote in the nine-page opinion. They also went through the arguments Gov. Butch Otter offered in earlier legal filings opposing the lifting of the stay, and rejected all of them. “Governor Otter can no longer meet the test for the grant or continuation of a stay,” the court wrote.

It also noted that the full U.S. Supreme Court also ruled against Otter’s bid for a continued stay to prevent same-sex marriages from starting in Idaho. “Because the Supreme Court has thus rejected the argument that a stay was necessary … we decline to second-guess that decision,” the court wrote.  It noted that same-sex marriage is now legal 33 states plus the District of Columbia. “This figure includes Idaho and Alaska,” the court wrote.

The 9th Circuit judges also wrote that they nevertheless granted the state an additional opportunity to file an emergency stay request with the Supreme Court by making the lifting of the stay effective today, rather than yesterday, “even though we see no possible basis for a stay.” No additional stay was sought.

Todd Dvorak, spokesman for Idaho Attorney General Lawrence Wasden, said, “We’ll analyze it and use that as part of our decision-making process going forward.”

Deborah Ferguson, attorney for the four couples who successfully sued to overturn Idaho’s ban on gay marriage, said, “It makes public their reasoning for lifting the stay, and so that’s, I think, very helpful. I’m very glad they did that.” She noted that as a published opinion, the court’s opinion now can be cited in other cases. You can read it here.

Idaho same-sex couples rejoice as marriages begin

Here’s a link to my full story at on the advent of same-sex marriage in Idaho this morning, which drew a crowd of couples and hundreds of their supporters to the Ada County Courthouse for marriage licenses. In just under half an hour, Ada County issued 19 licenses. Wedding ceremonies followed on the courthouse steps, complete with ministers, flowers, cake, and hundreds of well-wishers.

Minister: ‘By power vested by state of Idaho, I now pronounce you wife and wife’

Numerous wedding ceremonies were performed on the Ada County Courthouse steps this morning after same-sex couples received their long-awaited marriage licenses. At the close of one of them, as two men were being married by another minister nearby, Presbyterian minister Marci Glass said, “By the power vested in me by the state of Idaho, I now pronounce you wife and wife.” The two brides hugged, and the crowd cheered.

A few blocks away at Boise City Hall, acting Mayor Maryanne Jordan officiated inside the council chambers in weddings including those for two of the couples who sued to overturn Idaho's ban on same-sex marriage. A big windstorm has now blown into Boise, pushing festivities inside. 

At least a dozen licenses issued in first 20 minutes in Ada County…

In the first 20 minutes that marriage licenses could be legally issued to same-sex couples in Ada County, county Clerk Chris Rich estimated that more than a dozen have been issued. “I would say we've done at least 12 to 15,” he said. Things have gone smoothly thus far, Rich said. “We had a paper jam, and one machine was low on toner, even though we tested all the machines yesterday,” he said ruefully, but that was quickly fixed. “Everybody knew they needed to have cash” for the $30 fee.

For now, Ada County's marriage license forms have been altered to offer applicants two choices: Bride and groom, as before, and “spouse and spouse.” That may differ in other counties, Rich said. He said eventually there may be more options, such as bride and bride, groom and groom, or no specification.

Pictured above, Shelia Robertson and Andrea Altmayer watch as their license is issued, the first one in Ada County. 

First Ada County licenses issued to two plaintiff couples from Idaho’s same-sex marriage case

There was a loud countdown and then a cheer from the crowd as the 10 o'clock hour arrived at the Ada County Courthouse this morning, where dozens of same-sex couples and hundreds of their supporters are gathered to celebrate the start of legal same-sex marriage in Idaho. Shelia Robertson and Andrea Altmayer, shown above with son Bridger, and Amber and Rachael Beierlie, who were at the next station at the marriage license counter, were the first to receive licenses. They're among four Idaho couples who sued successfully to overturn Idaho's ban on same-sex marriage; the other two couples already were legally married in other states, and sought recognition of their marriages.

Deborah Ferguson, the women's attorney, said, “We're thrilled - the day has come, it's actually here.” Both couples are headed over to Boise City Hall immediately after receiving their marriage licenses, she said, where they'll be married by Acting Mayor Maryanne Jordan. “There's been enough twists and turns here,” Ferguson said. “They've waited a long time - they're ready.”

Big crowd awaits marriage licenses at Ada County courthouse…

There's a big crowd both inside and outside the Ada County Courthouse this morning for the issuance of marriage licenses to same-sex couples, which starts at 10 a.m….

Otter: ‘We have done all we can through the courts for now to defend traditional marriage in Idaho’

Idaho Gov. Butch Otter just issued this statement:

“The 9th U.S. Circuit Court of Appeals has issued its mandate for enforcement of decisions overturning the Idaho Constitution’s prohibition on same-sex marriage effective at 10 a.m. MDT, 9 a.m. PDT on Wednesday, October 15. I continue to believe that the federal courts are mistaken in abandoning the sanctity of traditional marriage and in undermining the will of Idaho voters and each state’s right to define marriage. But we are civil society that respects the rule of law. We have done all we can through the courts for now to defend traditional marriage in Idaho.”

Asked if that final comment means Otter is dropping his appeals in Idaho’s court fight to defend its ban on same-sex marriage, Mark Warbis, Otter’s communications director, said, “It says exactly what we wanted to say, exactly what it does say.” Asked if Otter has filed any further motions or appeals in the case today, Warbis said no, but wouldn’t comment on whether Otter might file anything further after today. “It says 'for now,'” he said.

Todd Dvorak, spokesman for Idaho Attorney General Lawrence Wasden, said, “We are keeping our legal options open,” but he said, “We don’t have anything planned today or tomorrow.”

Former Otter lawyer charges bias in 9th Circuit’s three-judge panel selection

Monte Neil Stewart, the attorney who represented both Idaho and Nevada in oral arguments at the 9th Circuit Court of Appeals in same-sex marriage cases, today leveled a highly unusual charge at the 9th Circuit: That the three-judge panel selected to hear Idaho’s and Nevada’s cases wasn’t selected through a “neutral” process, and instead was purposely stacked with judges favorable to same-sex marriage in order to achieve an outcome favorable to the plaintiffs.

“We bring the issue of bias in the selection process to the Circuit’s attention with respect and with a keen awareness that questioning the neutrality of the panel’s selection could hardly be more serious,” Stewart wrote in legal filings today with the 9th Circuit, requesting a full en banc review of Nevada’s case. “But the sensitivity of raising uncomfortable questions for this Circuit must be balanced against the interests of ordinary Nevadans, who deserve a fair hearing before a novel interpretation of constitutional law deprives them of the right to control the meaning of marriage within their State.”

Stewart contended that a statistical analysis he had completed by an expert statistician shows it’s highly unlikely that 9th Circuit Judges Stephen Reinhardt and Marsha Berzon would be selected to hear Nevada’s case, after also sitting on, in Reinhardt’s case, four other cases in the past five years dealing with gay rights, and in Berzon’s, five other cases. “Sophisticated statistical analysis validates the reasonable person’s sense that something is amiss,” Stewart wrote. “Judges Reinhardt and Berzon are publicly perceived to be favorably disposed to arguments for expanding the rights of gay men and lesbians, more so than all or nearly all other judges in this Circuit. That perception gives rise to an appearance of an uneven playing field.”

Carl Tobias, a law professor at the University of Richmond in Richmond, Va., who has closely followed same-sex marriage cases, said an biased selection process is “virtually unheard of” in federal appeals courts. “The three-judge panels are randomly drawn,” Tobias said. “It is virtually unheard of that the people in charge of the process would game the system. My whole sense of the federal appeals courts is that the judges are too professional to allow that to happen.”

You can read Stewart’s full petition for rehearing here. Stewart was Gov. Butch Otter’s private attorney for Idaho’s unsuccessful appeal to the 9th Circuit, after a U.S. magistrate judge overturned Idaho’s ban on same-sex marriage in May as unconstitutional. In his latest legal filings, Otter has replaced Stewart with Washington, D.C. attorney Gene Schaerr.

Of ‘fly-by-night payday loan’ operators, voter turnout, and vested rights…

The legal arguments that Gov. Butch Otter submitted to the 9th Circuit today in his unsuccessful bid to continue a stay on same-sex marriage in Idaho included some unusual ones, including his contention that if the 9th Circuit were to lift the stay, it would “improperly treat the sovereign State of Idaho as an ordinary litigant, entitled to no more respect than a fly-by-night payday loan business or massage parlor.” Asked about that, Deborah Ferguson, attorney for the plaintiffs in Idaho’s same-sex marriage case, said, “It’s rare to see language like that. … I thought it was inappropriate. Truly, I thought it was bizarre.” She added, “I don’t think it added anything to their brief or their argument, and clearly, the court wasn’t swayed by it.”

Otter’s new legal arguments today also included a contention that allowing gay marriage to start in Idaho would dissuade people from voting in the upcoming election. “If laws passed by state legislatures can be overturned without the state having an opportunity for full appellate review before the law loses its force, why should ordinary citizens bother to vote for state office-holders?” Otter’s filing asked. Ferguson called that argument “completely without merit” and “a desperate sort of argument.”

Otter also contended today that if the 9th Circuit doesn’t prevent Idaho same-sex couples from getting legal marriage licenses, the case will essentially be over – once some have wed, they’ll have a “vested right” to having the state continue to recognize their marriages. “If the state ultimately prevails, the couples so married will undoubtedly claim – as they did in Utah – that they now have a ‘vested right’ to the marital status they achieved as a result of this court’s decision,” wrote Gene Schaerr, attorney for Otter. “And the only legal authority on this question indicates that those couples will be correct.”

Said Ferguson: “I think he’s right.” You can read my full, updated story online here.

9th Circuit lifts stay, effective Wed. morning

The 9th Circuit Court of Appeals has just issued an order lifting the stay that blocked same-sex marriage from starting in Idaho - effective Wednesday morning. That's 9 a.m. Wednesday, the order says; so that would be 10 a.m. Boise time. 

The plaintiffs hadn't yet filed their reply to today's filings from Gov. Butch Otter and Idaho Attorney General Lawrence Wasden. Deborah Ferguson, attorney for the plaintiffs, said, “I guess they kind of knew what we were going to say. So that's just fantastic.”

You can see the 9th Circuit's order here.

State files responses, Wasden drops opposition to stay on gay marriage, Otter doesn’t

The state has filed its responses with the 9th Circuit Court of Appeal on the stay in the same-sex marriage case, and Attorney General Lawrence Wasden has dropped his opposition to the stay – but Gov. Butch Otter has not. You can read my full story here at Wasden, in his five-page filing, said he and his clients, Ada County Clerk Christopher Rich and the state of Idaho, “do not oppose” the motion to lift the stay. Wasden’s filing says he and his clients have concluded, “given the actions taken by the Supreme Court … that they cannot satisfy the stringent standards governing issuance of stays.” He notes, however, that that “should not be interpreted as a concession to the correctness of this court’s Oct. 7 decision.” Wasden’s filing leaves open the possibility of further appeals in the case, but concedes that same-sex marriages can legally start in Idaho now under the 9th Circuit's ruling.

Otter’s filing, by private attorney Gene Schaerr in Washington, D.C., takes umbrage at the idea that the stay would be lifted before “reasonable appellate options have been exhausted,” saying, “Granting that motion would … improperly treat the sovereign State of Idaho as an ordinary litigant, entitled to no more respect than a fly-by-night payday loan business or massage parlor.”

It repeats the arguments made to the U.S. Supreme Court on Friday attempting unsuccessfully to get that court to continue to block gay marriage in Idaho: That Idaho is likely to succeed in appealing the case either at the 9th Circuit or the Supreme Court; that Idaho’s case is different because it involves a heightened standard of review adopted by the 9th Circuit; that allowing same-sex marriage is bad for children; and that it violates the state’s sovereignty, because Idaho voters approved a constitutional amendment banning same-sex marriage in 2006.

It also adds a new argument: That allowing gay marriage to start in Idaho would dissuade people from voting in the upcoming election. “If laws passed by state legislatures can be overturned without the state having an opportunity for full appellate review before the law loses its force, why should ordinary citizens bother to vote for state officer-holders?” Otter’s filing asks.

There’s also another new argument posed: That if the stay is lifted and same-sex couples are issued marriage licenses, they’ll claim a “vested right to the marital status they achieved as a result of this court’s decision and its vacatur of the current stay. And the only legal authority on this question indicates that those couples will be correct.”

You can read Wasden’s filing here, and Otter’s here.

9th Circuit wants state response on Monday to emergency motion to dissolve stay

The 9th Circuit Court of Appeals has just issued an order calling for the state of Idaho to respond by noon on Monday to the same-sex marriage plaintiffs’ emergency motion to dissolve the stay, and clear the way for gay marriage in Idaho. That’s noon Pacific time; then, the plaintiffs, if they choose to, may file a reply by 5 p.m. Pacific. That still could leave time for the court to rule late Monday and allow Idaho counties to issue marriage licenses to same-sex couples when they open on Tuesday morning after the three-day Columbus Day holiday weekend, or perhaps to rule on Tuesday morning.

You can read the court’s brief order here.

Plaintiffs file emergency motion to 9th Circuit to lift stay, allow marriages in Idaho

The plaintiffs in Idaho's same-sex marriage case have filed an emergency motion with the 9th Circuit Court of Appeals to lift the stay and directly authorize gay marriages to begin in Idaho; you can read it here.

In the motion, attorney Deborah Ferguson wrote, “While defendants cannot show that the  State of Idaho would suffer any harm in the absence of a stay, the challenged laws cause serious, continuing, and irreparable harm to plaintiffs and other same-sex couples—and to their children—each day they remain in effect.”

“Same-sex couples who wish to marry are subjected to irreparable harm every day they are forced to live without the security that marriage provides,” she wrote. “That harm is not speculative, but immediate and real.”

She also wrote that Idaho’s ban in gay marriage is unlikely to get review from the U.S. Supreme Court, which today lifted its stay on the 9th Circuit’s decision. “On Monday of this week, the Supreme Court denied seven petitions for writs of certiorari seeking review of judgments from three courts of appeals that together held that five States’ prohibitions on marriages by same-sex couples violate those couples’ Fourteenth Amendment rights,” Ferguson wrote. “There is no reason to believe that any further petition for further review by defendants, whether in this Court or the Supreme Court, will meet any different fate.”

Roller coaster of a day on same-sex marriage in Idaho caps week of dramatic developments

Here’s a link to our full story at on the tumultuous developments today on same-sex marriage in Idaho – from Gov. Butch Otter vowing this morning to continue to fight it, to the U.S. Supreme Court’s order this afternoon lifting a stay, to couples gathering at courthouses across the state but being turned away at most because a final order hadn’t yet issued from the 9th Circuit, to Otter’s announcement tonight that the state will comply with any order from the 9th Circuit.

“We are a nation of laws,” Otter said. “Idaho now should proceed with civility and in an orderly manner to comply with any forthcoming order from the 9th Circuit.” Otter’s statement seems to suggest that he’s dropping his appeals. When I asked that question, I got this response from the governor tonight: “I look forward to conferring with the Attorney General and legislative leaders in the coming week on this issue. In the meantime, I encourage patience and civility.” Todd Dvorak, spokesman for Idaho Attorney General Lawrence Wasden, said this evening, “Our official response right now is we are waiting for the 9th Circuit to decide, and when it does, we will review our legal options.”

By the close of business today, six marriage licenses had been issued to same-sex couples in Latah County, on the advice of the county attorney there. Kootenai County’s courthouse is actually open tomorrow morning until noon. But most county courthouses are now closed until Tuesday morning, with the Columbus Day holiday on Monday.

Otter: ‘Idaho should proceed with civility and in an orderly manner to comply with any order from 9th Circuit’

Idaho Gov. Butch Otter just issued this statement:

“The Supreme Court’s order lifting Justice Kennedy’s stay effectively allows same-sex marriage in Idaho as soon as the 9th Circuit directs compliance with its decision. I disagree with the court’s conclusion, which negates the 2006 vote of the people of Idaho, is contrary to the values of most Idahoans, and undermines fundamental states’ rights.  But we are a nation of laws. Idaho now should proceed with civility and in an orderly manner to comply with any forthcoming order from the 9th Circuit.” 


Frustrated county clerk: ‘I don’t think they’re going to be able to stop it’

Bonner County Clerk Ann Dutson-Sater said her county didn't issued any marriage licenses to same-sex couples today; it’s now closed for the three-day weekend, and won’t reopen until Tuesday at 9 a.m. after the Columbus Day holiday. “Our instruction earlier today from Attorney General Wasden was he wanted the counties to wait until further word from him,” Dutson-Sater said. “So we’re on hold.”

She said her office has had “lots of phone calls” about when it will issue licenses. “They’re just waiting,” said.  “They’ll let us know, no matter what time of day or night, so we can be prepared at 9 a.m. on whatever day it is,” or even on a moment’s notice if the word comes mid-day.

“I’d just like to get it going, you know?” Dutson-Sater said. “All this waiting, then, ‘Oh no, hold off for another minute.’ I just want to see it start happening, because it’s going to happen anyway. I don’t think they’re going to be able to stop it.”

Latah County has now issued 3 marriage licenses to same-sex couples, 3 more waiting…

Latah County has now issued three marriage licenses to same-sex couples, and three more are waiting; the clerk’s office there closes in 11 minutes. “I think there’s going to be six when we finish,” said county Clerk Susan Petersen. She said she believes Latah is the only county that decided to issue licenses this afternoon.

“We were given a directive to wait for the written mandate from the 9th Circuit and to keep in contact with our prosecuting attorneys,” she said, “and our prosecuting attorney’s office gave me the opinion that I needed to proceed with the marriage licenses.” She said her office attracted a crowd this afternoon, and she described the mood among the crowd as “very jubilant.”

Latah County issues marriage license to same-sex couple, on advice of county attorney

The Latah County Clerk has issued a marriage license to two females, signaling the start of same-sex marriage in Idaho – even before a final, formalizing order from the 9th Circuit. Latah County Clerk Susan Petersen said on the advice of the Latah County prosecutor she issued the license about 3:45 p.m. The two women came to her office in Moscow about 2:30 p.m. to get a license and had to wait while officials determined if they were allowed to start issuing licenses to same-sex couples, said Petersen, a Republican.

“We’re just trying to follow the law,” Petersen told Spokesman-Review reporter Jonathan Brunt.

Expert: Gay marriage in Idaho ‘inevitable,’ continued state appeals just ‘wasting time, money and making many people unhappy’

Carl Tobias, a law professor at the University of Richmond in Richmond, Va., who’s been watching same-sex marriage cases around the country, said today’s U.S. Supreme Court order means Justice Anthony Kennedy referred the stay question to the full Supreme Court for review, and the full court rejected the stay. “I think that shows that the only chance for cert is an appeal that holds a ban is constitutional,” he said. “Cert” is short for “certiorari,” the process by which the high court agrees to take up an appeal.

“The heightened scrutiny argument was an attempt to pique the Court’s interest and it is creative,” Tobias said, referring to the state’s arguments submitted to the high court. “However, it did not secure a stay and all the Attorney General can do now is delay the inevitable by running out all the procedural options, wasting time, money and energy and making many people unhappy.”

Get blog updates by email

About this blog

Betsy Z. Russell covers Idaho news from The Spokesman-Review's bureau in Boise.

Named best state-based political blog in Idaho for 2013 by The Fix

Latest comments »

Read all the posts from recent conversations on Eye On Boise.

Search this blog
Subscribe to this blog
Advertise Here