A three-judge panel of the 9th Circuit U.S. Court of Appeals has blocked the legalization of same-sex marriage in Idaho from taking effect, while the state appeals the federal court ruling to higher courts.
While granting Idaho Gov. Butch Otter and Attorney General Lawrence Wasden’s motion for a stay – putting the change on hold while the case wends its way up on appeal - the 9th Circuit panel also granted a 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 briefing will all be submitted over the summer, with no extensions, and the 9th Circuit will hear the arguments in the appeal in early September in San Francisco.
Plus, one member of the 9th Circuit panel wrote that it’s “difficult to see” how the Idaho law could survive on appeal.
Lori Watsen, who with her wife Sharene was among the couples bringing the case, said, “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.”
Wasden said he was “pleased” with the stay. “I think it’s critical to take an orderly approach to this case and avoid the confusion that has occurred in other states,” he said. “Now I can focus fully on my responsibility and obligation of defending the choice Idaho voters made to define marriage eight years ago.”
Idaho voters passed the state’s constitutional ban on same-sex marriage in 2006; it’s among the nation’s farthest-reaching, also banning civil unions, domestic partnerships or any type of governmental recognition for same-sex unions.
The three-judge panel in the 9th Circuit cited the Utah case in which the U.S. Supreme Court issued an order in January 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.”
Still, he wrote, “It is difficult to see how the Idaho appellants can make a ‘strong showing’ that they will prevail.”
Shannon Minter, one of the attorneys for the four Idaho couples who 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.”
Nineteen states, including Washington, now permit same-sex marriage, after a court overturned Oregon’s ban on Monday, and Pennsylvania’s ban was struck down on Tuesday. In both states, marriage licenses began being issued to same-sex couples immediately.
U.S. Magistrate Judge Candy Dale ruled Idaho’s ban unconstitutional on May 13, saying it violated the U.S. Constitution’s guarantees of due process and equal protection.