Judge strikes Idaho’s ban on gay marriage

BOISE – Same-sex couples in Idaho can marry starting Friday morning, after a federal judge struck down the state’s same-sex marriage ban late Tuesday afternoon.

“This is a historic day for Idaho and Idaho’s families,” said Deborah Ferguson, the lead attorney in the case, who represented four same-sex couples who sued to reverse Idaho’s voter-enacted ban. “It’s an enormously important decision.”

Idaho Gov. Butch Otter vowed to appeal.

“In 2006, the people of Idaho exercised their fundamental right, reaffirming that marriage is the union of a man and a woman,” the governor said. “Today’s decision, while disappointing, is a small setback in a long-term battle that will end at the U.S. Supreme Court.  I am firmly committed to upholding the will of the people and defending our Constitution.”

Earlier this week, Otter filed a motion asking U.S. Magistrate Judge Candy Dale to delay marriages of same-sex couples if she ruled in favor of gay marriage to avoid the “chaos, confusion, conflict and uncertainty” that could ensue if same-sex couples in Idaho were allowed to marry, followed by possible appeals that halted such marriages. Dale declined Otter’s request.

“A state’s broad authority to regulate matters of state concern does not include the power to violate an individual’s protected constitutional rights,” Dale wrote in her 57-page decision. “Idaho’s marriage laws deny its gay and lesbian citizens the fundamental right to marry and relegate their families to a stigmatized, second-class status without sufficient reason for doing so. These laws do not withstand any applicable level of constitutional scrutiny.”

Otter would have to persuade the 9th Circuit U.S. Court of Appeals or the U.S. Supreme Court to intervene to stop Idaho from recognizing same-sex marriages. Otherwise, they’ll be legal starting Friday at 9 a.m. Mountain time, 8 a.m. Pacific.

Ferguson called the four couples “amazingly courageous” for stepping forward and bringing the case.

“If there’s no stay, we’re going to be first in line Friday morning,” said a tearful Shelia Robertson, who has been with partner Andrea Altmayer for 16 years; the two are raising a 4-year-old son.

“My little boy can grow up in a family just like anybody else’s little boy, and know that his mothers are connected and protected,” she said. “Friday morning I’ll be at the courthouse requesting a license, and then we’ll file for a stepparent adoption.”

Plaintiff Sue Latta, who legally married her wife in California in 2008, said, “We’re ecstatic – there couldn’t have been a better ruling.”

In their arguments defending the ban, Otter, Idaho Attorney General Lawrence Wasden and Ada County Clerk Chris Rich argued that the state believes banning same-sex marriage is better for children, and that its voters have the right to decide that. “The traditional definition of marriage exists to promote Idaho’s child-centric marriage culture, rather than to oppress homosexuals,” Otter argued.

But Dale wrote that “the defendants offered no evidence that same-sex marriage would adversely affect opposite-sex marriages or the well-being of children.”

“The facts are clear and the law teaches that marriage is a fundamental right of all citizens, which neither tradition nor the majority can deny.”

She found that Idaho’s ban on same-sex marriage, both in state statute and in the state Constitution, violated the U.S. Constitution’s guarantees of equal protection and due process, and withheld from same-sex couples “a profound and personal choice, one that most can take for granted.”

Dale wrote that the couples, and others like them, are penalized “not because they are unqualified to marry, start a family, or grow old together, but because of who they are and whom they love.”

Federal courts have overturned state bans on same-sex marriage in 10 other states since the U.S. Supreme Court last summer invalidated the federal Defense of Marriage Act.

With the state vowing to appeal, it’s possible that Idaho’s case could be the one that arrives first at the U.S. Supreme Court.

“We will vigorously defend this judgment,” Ferguson said.