BOISE - The 9th Circuit Court of Appeals issued an order Monday lifting the stay that blocked same-sex marriage from starting in Idaho - effective Wednesday morning.
Marriage licenses can legally be issued to same-sex couples statewide starting at 9 a.m. on Wednesday.
Deborah Ferguson, attorney for the four couples who sued to overturn Idaho’s ban on gay marriage, hadn’t even filed her reply to the state’s latest legal filings when the order came out mid-day Monday. “I guess they kind of knew what we were going to say,” she said.
Ferguson filed the case on behalf of four Idaho couples, all lesbians; two were denied licenses to marry in their home state, and two were denied recognition for their legal marriages that took place in other states. “They are thrilled,” Ferguson said Monday. “They have been through so much, and so many temporary setbacks. We’ve continued to move forward, but this is a very, very happy, momentous day, as Wednesday will be.”
The order followed court filings Monday in which Idaho Attorney General Lawrence Wasden dropped his opposition to lifting the stay – but Gov. Butch Otter did not.
Wasden, in his five-page filing, concluded that the state couldn’t satisfy the “stringent standards governing issuance of stays.” Both he and Otter had asked the U.S. Supreme Court for a stay, but the high court rejected that on Friday.
Wasden said he still opposes same-sex marriage and may file further appeals in the case, but he conceded that they can legally start in Idaho now.
Otter’s filing, by private attorney Gene Schaerr in Washington, D.C., took 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.”
Ferguson 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 filing repeated the arguments made unsuccessfully to the U.S. Supreme Court on Friday: 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; that a one-line 1972 ruling in a Minnesota case should be the governing precedent on same-sex marriage; and that permitting it in Idaho would violate the state’s sovereignty, because Idaho voters approved a constitutional amendment in 2006 to ban same-sex marriage.
It also added 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 office-holders?” Otter’s filing asked.
Ferguson called that argument “completely without merit” and “a desperate sort of argument.”
Perhaps most significantly, Otter’s filing contended 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,” Schaerr wrote. “And the only legal authority on this question indicates that those couples will be correct.”
Said Ferguson: “I think he’s right.”