BOISE – The full U.S. Supreme Court lifted its stay Friday afternoon that had been preventing same-sex marriages from starting in Idaho, and couples flocked to courthouses around the state anxiously awaiting a final order from the 9th Circuit Court of Appeals, but it didn’t come before the close of business.
“It’s just been a roller coaster of emotion,” said Machelle Migneault, 49, who rushed to the Ada County Courthouse Friday afternoon with her partner seeking a marriage license, only to wait and then be turned away.
Idaho Gov. Butch Otter, who had been vowing to continue the court fight even at mid-day Friday, issued a statement Friday evening saying the state will comply with any order the 9th Circuit issues, even if he disagrees with it. “We are a nation of laws,” Otter said.
Courthouses are closed on Monday for the Columbus Day holiday, so that means Tuesday morning is the earliest most counties across the state could begin issuing marriage licenses to same-sex couples, barring any further delays. But Kootenai County’s courthouse is open Saturday morning. And in Latah County, county Clerk Susan Petersen issued a license to a lesbian couple at 3:45 p.m., on the advice of the county attorney; by the end of the day, she’d issued six.
Petersen, a Republican, said 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. “We’re just trying to follow the law,” Petersen told The Spokesman-Review.
That first license in Latah County was actually the second marriage license issued to a same-sex couple by an Idaho county clerk this week. Early on Wednesday morning, Twin Falls County issued a marriage license to two men, before learning that U.S. Supreme Court Justice Anthony Kennedy had issued a last-minute stay halting the 9th Circuit’s order the night before making gay marriage legal in Idaho immediately.
After Kennedy’s order, the 9th Circuit the next day recalled its immediate order. But its unanimous ruling issued Tuesday in Idaho’s case still stands: That Idaho’s ban on same-sex marriage is unconstitutional, violating the equal protection provisions of the United States Constitution.
Otter and Attorney General Lawrence Wasden have been trying every avenue to appeal that ruling. Wasden said earlier that he was planning to ask the 9th Circuit for a larger, 11-judge panel to review the unanimous decision of its three-judge panel. Otter has been pushing for an appeal to the U.S. Supreme Court.
However, on Friday evening, Otter signaled he may be giving up the fight. “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,” the governor said. “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.”
Asked if Idaho now plans to drop its appeals, Todd Dvorak, spokesman for Wasden, said Friday 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.”
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 Friday’s U.S. Supreme Court order came after Kennedy, the circuit justice for the region, referred the stay question to the full Supreme Court for review – and the full court rejected the stay.
He said he believes that signals that the only way the high court will take up a same-sex marriage case is if there’s a split between the various appellate circuit courts; so far, all have struck down bans on gay marriage as unconstitutional.
Otter and Wasden filed arguments with the Supreme Court asking that the stay continue while the state attempts further appeals, suggesting that Idaho’s case is different from the seven same-sex marriage appeals from five states that the court denied without hearings on Monday.
They argued that the 9th Circuit applies a stricter standard of “heightened review” for cases involving discrimination based on sexual orientation, and said other circuits don’t. They called on the high court to take Idaho’s case simply to review that level-of-scrutiny issue. Then, if it disagreed with the 9th Circuit, it could send the case back there for re-hearing under the less stringent “rational basis” standard of review. That could potentially drag the case out for months or years.
“The heightened scrutiny argument was an attempt to pique the court’s interest and it is creative,” Tobias said. “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.”
Bonner County Clerk Ann Dutson-Sater said, “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. “I’d just like to get it going, you know? All this waiting, then, ‘Oh no, hold off for another minute.’ … It’s going to happen anyway. I don’t think they’re going to be able to stop it.”
Shannon Minter, legal director for the National Center for Lesbian Rights and one of the attorneys in Idaho’s case, said, “Today’s decision by the Supreme Court confirms that there is no good reason to further delay allowing all Idaho families to enjoy the dignity, security, and protection that marriage provides.” He added, “We hope that the Ninth Circuit will act quickly to make its decision effective so that all Idahoans will have the freedom to marry as soon as possible.”
Staff writer Jonathan Brunt and the Associated Press contributed to this report.
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