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While Idaho’s case waits in line, U.S. Supreme Court agrees to take up 6th Circuit gay marriage case

The U.S. Supreme Court today agreed to take up the same-sex marriage issue in a series of cases from the 6th Circuit, opening the door to possible settlement of the issue for all 50 states. You can read the high court’s order here. Idaho Gov. Butch Otter and Attorney General Lawrence Wasden are appealing Idaho’s gay marriage case to the U.S. Supreme Court as well, but they just filed their petitions two weeks ago; that means the Idaho case isn’t yet up for consideration by the high court, which still needs additional briefing before it could consider Idaho’s petition.

Otter filed a "friend of the court" brief in the 6th Circuit case asking the court wait to take that case up until it can consider Idaho’s case along with it. On Thursday, his office attorney, Tom Perry, said if the high court just takes up the 6th Circuit case, Idaho likely will be filing friend-of-the-court arguments in that case. And the high court could decide the matter for all circuits after hearing the 6th Circuit case.

Todd Dvorak, spokesman for Wasden, said, “They haven’t taken up our case yet, and there’s no guarantee that they will.” But Wasden said today’s high court ruling is the beginning of the court making a final decision on the marriage question.

Deborah Ferguson, attorney for the four Idaho couples who successfully sued to overturn Idaho’s ban on gay marriage, said her side “will urge the court to decline review” and let their win become final. The 9th Circuit U.S. Court of Appeals already has rejected the state’s appeal.  “Our case will go forward and will be considered by the Court at a later conference, probably in February,” Ferguson said.

The high court, when it considers Idaho’s petition, will have the option of taking the case and hearing arguments; declining the case and letting the 9th Circuit’s decision stand; or holding the case until the other cases are decided. You can read a full report here at spokesman.com.

Wasden: ‘My office is equipped to handle these cases’

Idaho Attorney General Lawrence Wasden has issued this statement on his vote against paying $55,000 of Gov. Butch Otter's legal fees for private attorneys he brought in to help with same-sex marriage appeals:

"My view on the use of outside counsel is no secret. I've maintained a long, consistent and principled position that hiring outside attorneys and paying the high price for that work is unnecessary. I took an oath to defend the Idaho Constitution. That's my job and exactly what I've been doing on this case from the beginning. My office is equipped to handle these cases, and even now I have two staff attorneys in Washington, D.C., preparing to argue an important Department of Health and Welfare case before the U.S. Supreme Court next week."

Council approves $457K in taxpayer funds for gay marriage case legal fees, costs

The Constitutional Defense Council has voted unanimously to pay the court-ordered $401,663 in attorney fees and costs to the winning side in Idaho’s same-sex marriage case, and 3-1 to pay $55,000 for costs for outside counsel hired by Gov. Butch Otter in his appeals of that case to the 9th Circuit U.S. Court of Appeals and the U.S. Supreme Court. Idaho Attorney General Lawrence Wasden, who joined in the appeals, voted no, but hired no outside counsel, using state attorneys. Asked why he voted against paying the governor’s outside legal bills, Wasden said, “I didn’t think it was appropriate.”

Otter had said earlier that those costs were being covered from within his office; today’s vote means $55,000 of those costs, for fees to outside attorneys and for court-required printing fees, will come from the state’s Constitutional Defense Fund instead. Otter’s in-office counsel, Tom Perry, said total costs for the governor’s office are now up to around $150,000.

After the meeting, Otter said, “My understanding is the attorney general didn’t think we needed outside counsel, but we need outside counsel all the time. If it’s needed, it’s needed.”

House Speaker Scott Bedke, who voted in favor of both motions, said, “I think it’s appropriate at times.”

Perry said more costs are anticipated as the case continues; Otter is pressing an appeal to the U.S. Supreme Court, and also has filed an “amicus” or friend-of-the-court brief, in the 6th Circuit’s U.S. Supreme Court same-sex marriage appeal.

Constitutional Defense Council special meeting set for Thursday morning

Idaho’s Constitutional Defense Council, which consists of the governor, the attorney general, the speaker of the House and the president pro-tem of the Senate, will hold a special meeting Thursday at 8:30 a.m. in the Borah Post Office building’s 2nd floor courtroom, to consider payment of a $401,663 court order to cover attorney fees and costs for the winning side in Idaho’s same-sex marriage case, which the state lost in U.S. District Court last May. Idaho has since appealed unsuccessfully to the 9th Circuit U.S. Court of Appeals, and is currently pressing an appeal to the U.S. Supreme Court. Same-sex marriage became legal in Idaho on Oct. 15.

The council oversees the Constitutional Defense Fund, which currently has a balance of nearly $1.7 million after lawmakers agreed to transfer another $1 million into it last year from the state’s general fund. The defense fund, by law, can be spent  “to examine and challenge, by legal action or legislation, federal mandates, court rulings, and authority of the federal government, or any activity that threatens the sovereignty and authority of the state and the well-being of its citizens.” The fund has “historically been used to pay legal settlements, primarily attorney fees, that have been awarded through the courts,” according to state budget documents. 

According to state law, any one of the four members of the council can call a meeting, and its decisions are by majority vote. Interest on the $401,663 judgment started accruing on Dec. 19, so the longer the state waits, the more it’ll cost. Yesterday, the state Board of Examiners approved the claim and referred it to the council for consideration of payment.

Board of Examiners approves claim for marriage-case attorney fees

Idaho’s state Board of Examiners, which consists of the governor, the secretary of state, the attorney general and the state controller, has voted unanimously to approve the claim for $401,663 in attorney fees and costs in the state’s same-sex marriage litigation that a federal judge has order the state to pay the winning side in the case. Four Idaho couples sued, challenging Idaho’s ban on gay marriage as unconstitutional; they won their case in federal court last May. The state appealed unsuccessfully to the 9th Circuit U.S. Court of Appeals and is now pressing an appeal to the U.S. Supreme Court; same-sex marriage became legal in Idaho on Oct. 15.

The order for attorney fees and costs is just for the portion of the case in U.S. District Court in Idaho, not for the appeals. Board of Examiners members asked no questions about the matter at their meeting this morning, and approved the payment without comment. A memo from the state Division of Financial Management asked the board to approve the claim and refer it to the Constitutional Defense Council for consideration of payment. That council consists of the governor, the attorney general, the speaker of the House and the president pro-tem of the Senate.

The council can convene on the call of any member and can make payments from the state’s Constitutional Defense Fund by majority vote. That fund currently has a balance of nearly $1.7 million, after lawmakers agreed to transfer another $1 million into it last year from the state’s general fund. Gov. Butch Otter, asked by reporters yesterday whether he thought more money needed to be deposited into the fund as he continues his court fight against same-sex marriage, said no. “I believe … that there is plenty of money in the constitutional defense fund,” Otter said.

9th Circuit rejects Otter’s request to revisit gay marriage decision

In a somewhat anticlimactic ruling, the 9th Circuit U.S. Court of Appeals on Friday rejected motions for an en banc review – a reconsideration by a larger, 11-judge panel – of the October ruling overturning bans on same-sex marriage in Idaho and Nevada. Idaho already had appealed to the U.S. Supreme Court, saying the motion for reconsideration apparently wasn’t going to be granted; Idaho Gov. Butch Otter had requested it Oct. 21, but more than two months went by without any action.

Friday’s order said only, “The panel has voted to deny the petitions for rehearing en banc. The full court was advised of the petitions for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc reconsideration. The petitions for rehearing en banc are denied.”

9th Circuit Judge Diarmuid O’Scannlain of Portland, joined by Judges Johnnie B. Rawlinson of Las Vegas and Carlos Bea of San Francisco, penned a dissent, saying the en banc review should have been granted, noting that the 6th Circuit recently ruled against same-sex marriage.

“Thoughtful, dedicated jurists who strive to reach the correct outcome—including my colleagues on the panel here—have considered this issue and arrived at contrary results,” O’Scannlain wrote. “This makes clear that—regardless of one’s opinion on the merits of the politically charged and controversial issues raised by these cases—we are presented with a ‘question of exceptional importance’ that should have been reviewed by an en banc panel.” He further argued that a 1972 one-sentence ruling in a Minnesota case, Baker v. Nelson, still should be considered precedent on the marriage question; it found no federal question to be decided in a case where two men sued for the right to marry.

You can read the order and dissent here; the dissent also argued that states should be able to decide the marriage issue for themselves. The 9th Circuit has 29 judgeships; it’s so large that in the 9th Circuit, an en banc review involves an 11-judge panel, rather than convening the entire court, as in other circuits.

Wasden also files gay-marriage appeal to Supreme Court

Idaho Attorney General Lawrence Wasden has now also filed an appeal to the U.S. Supreme Court in Idaho’s same-sex marriage case, along with Gov. Butch Otter. “This case presents the Court with the opportunity to resolve a divisive split on a question of nationwide importance: Whether the United States Constitution now prohibits states from maintaining the traditional definition of civil marriage, i.e., between one man and one woman,” Wasden’s petition says.

Wasden’s petition, prepared by Deputy Attorney General Clay Smith and filed today, focuses on a states’ rights argument, saying, “The lower federal courts have rendered conflicting decisions whether the Constitution requires states to sanction same-sex marriage. This conflict has resulted in a Constitution that treats states unequally: It permits some to exercise the power they have always had to define civil marriage, but denies other states that same right.”

Like Otter’s petition, Wasden’s argues that the 9th Circuit ruling should have been governed by a one-line decision in a 1971 case from Minnesota, Baker vs. Nelson, which found no federal question to review in a lawsuit from that state in which two men sued because they weren’t allowed the marry. The 9th Circuit, and other appeals courts around the country, have held that last year’s Windsor decision changed that precedent; Wasden disagrees.

“The Ninth Circuit panel opinion wrongly concluded that this Court’s cases had rendered Baker obsolete,” Wasden’s petition says. The Windsor case, it says, “did not mention Baker. It instead affirmed Baker’s point that states have the authority to define marriage.” The Windsor case was the one that overturned the federal Defense of Marriage Act, or DOMA; it involved a New York woman who was ordered by the IRS to pay hundreds of thousands in estate taxes upon the death of her wife, because DOMA ordered the federal government only to recognize marriages among opposite-sex partners. Under New York law, the inheritance from a spouse was exempt from estate tax.

Wasden’s petition also echoes some of the arguments in Otter’s, saying, “The state has defined marriage as a union between a man and a woman not based on a false stereotype or discriminatory assumption, but on irrefutable biological facts. It confers the benefits of civil marriage on opposite-sex couples because they are biologically able to procreate and responsible for virtually all children being raised in Idaho households, not because of their sexual orientation.” You can read it here.  The petition runs 31 pages; with the attached appendices, including the previous rulings in the case, the document runs a total of 193 pages.

Otter files appeal to U.S. Supreme Court in gay marriage case

Idaho Gov. Butch Otter has filed a petition appealing the legalization of same-sex marriage in Idaho to the U.S. Supreme Court, saying the state’s case is the “ideal vehicle” to resolve the issue for the nation; you can read my full story here at spokesman.com. “The time has come for this court to resolve a question of critical importance to the states, their citizens and especially their children: Whether the federal Constitution prohibits a state from maintaining the traditional understanding and definition of marriage as between a man and a woman,” Otter’s Washington, D.C. attorney, Gene Schaerr, wrote in the 41-page petition.

Otter argues that the high court should take up Idaho’s appeal either in addition to or instead of a 6th Circuit case already pending before the court with a similar petition. “It is important that at least one of the cases this court considers on the merits be a case in which the traditional definition of marriage has been defended with the most robust defense available,” Schaerr wrote. “This is that case.”

Same-sex marriage became legal in Idaho on Oct. 15, after the state lost its appeal in the 9th Circuit U.S. Court of Appeals. Four lesbian couples – two who wanted to marry, and two who wanted their home state to recognize their legal out-of-state marriages – sued in federal court, and won their case last May. Their attorney, Deborah Ferguson, already has pledged to defend the decision. “The 9th Circuit decided it correctly, and we will vigorously defend the decision,” she said today.

Most Idaho churches still oppose same-sex marriage

Same-sex marriage may be legal in Idaho, but the debate over the practice continues in local churches.

Some have long supported gay marriage, but most churches are still adamantly opposed. And those in the majority are the least likely to want to talk about it.

A survey by Idaho On Your Side asked 75 Idaho churches if they supported gay marriage. Perhaps not surprisingly, 65 percent of those who responded said "no."

The Mormon church, Catholic church and Nazarene church all oppose gay marriage. Read More. IdahoOnYourSide.com

Do you think this is likely to change in the foreseeable future?

Fund has more than enough to cover court-ordered legal fees in marriage case

Idaho Gov. Butch Otter said today that he’ll confer with the other members of the state’s Constitutional Defense Council – the speaker of the House, president pro-tem of the Senate, and Attorney General – before calling a meeting of the council to pay a new $401,663 judgment for attorney fees in Idaho’s thus-far unsuccessful bid to defend its ban on same-sex marriage. But Otter said he’s glad the Legislature last year, at his urging, deposited another $1 million in the fund, giving it a balance that can easily cover the payment with plenty left over.

“I always anticipated that we would try to keep a million dollars in that fund, so it would suggest to those who want to bring a constitutional question to us that we’d be prepared at a moment’s notice to take it on,” Otter said today. In 2012, the balance in the fund was down to just a bit over $300,000; lawmakers that year put in another half-million. This year’s million-dollar addition brought the fund up to nearly $1.7 million, well in excess of the current bill, which started accruing interest on Friday.

Here are the past expenditures Idaho’s Constitutional Defense Council has made from the state’s Constitutional Defense Fund – all for attorney fees:

  • $190,547 to Elam & Burke in 1995-96 for attorney fees in case involving nuclear waste shipments to Idaho National Laboratory
  • $47,606 for attorney fees awarded in the Idaho Coalition United for Bears v. Cenarrussa case, regarding ballot initiatives, in 2004
  • $380,526 for attorney fees awarded to Planned Parenthood in 2006 for case involving anti-abortion legislation that was found unconstitutional
  • $66,000 for attorney fees awarded to Planned Parenthood in 2008 for another case involving anti-abortion legislation that was found unconstitutional
  • $75,000 for attorney fees awarded to the Pocatello Education Association in 2009 for a case involving unconstitutional legislation related to donations to unions
  • $54,350 for attorney fees awarded in Daien v. Ysursa in 2011, a case involving ballot access for independent presidential candidates

Lawmakers have deposited $2.5 million in the fund since its inception in 1995.

9th Circuit lets Otter file reply, but not 57-page amicus brief

The 9th Circuit U.S. Court of Appeals today granted Idaho Gov. Butch Otter’s motion to submit additional arguments in the state’s same-sex marriage case, but rejected without comment his bid to submit a copy of a 57-page amicus brief from a Louisiana case that Otter argued presents “a gold mine of scholarship regarding the practical, real-world impact of redefining marriage.” Otter wants an en banc review, by an 11-judge panel, of the earlier 9th Circuit decision overturning Idaho’s ban on same-sex marriage as unconstitutional, which was made by a three-judge panel. Same-sex marriage has been legal in Idaho since Oct. 15; you can read the court's latest order here.

Otter files additional arguments to 9th Circuit in marriage case

Idaho Gov. Butch Otter has filed a motion with the 9th Circuit Court of Appeals asking that the state be allowed to file additional arguments in its motion for an en banc review, a reconsideration by an 11-judge panel of the earlier three-judge panel’s rejection of Idaho’s ban on same-sex marriage as unconstitutional. “Since the Governor submitted his petition, the Sixth Circuit has issued an opinion counter to this Court’s ruling in the case, requiring a reply by the Governor regarding this new circuit split,” Otter’s attorneys wrote. They also cited an amicus brief filed in the Fifth Circuit same-sex marriage case in Louisiana, and submitted a copy, saying it has presented “a gold mine of scholarship regarding the practical, real-world impact of redefining marriage.”

“Plaintiffs … have no answer to Gov. Otter’s showing that by its ‘explicit terms’ Idaho’s marriage laws discriminate facially, not on the basis of sexual orientation, but on the basis of biological complementarity,” the lawyers wrote. “Removing the man-woman definition threatens serious harm to the institution of marriage, and, thus, to the children of heterosexual couples.” You can read Otter's brief here.

Change coming to committee chairmanships, some leadership posts in Legislature

When the Idaho Legislature convenes it organizational session on Dec. 4, six committee chairmanships and two leadership posts will be up for grabs, due to election outcomes, retirements and other moves. The chairmanships: Senate Education, Senate Resources, House Business, House Local Government, House Resources, and House Ways & Means. The leadership posts are Senate majority caucus chair and House assistant minority leader. You can read my full Sunday column here; it also includes a report on the recently filed arguments in Idaho’s same-sex marriage case, in which Gov. Butch Otter is seeking an en banc re-hearing from the 9th Circuit Court of Appeals; and a state budget update.

Idaho officials heartened by 6th Circuit ruling against gay marriage, say they’ll press appeal to U.S. Supreme Court

Idaho officials say they have new hope that their state’s same-sex marriage case could be taken up by the U.S. Supreme Court, after Thursday’s 6th District ruling upholding bans on gay marriage in four states – the first federal appeals court to rule that way, after a string of rulings unanimously going the opposite direction. Those have included Idaho’s case; the 9th Circuit U.S. Court of Appeals rejected Idaho’s appeal and overturned the state’s ban on same-sex marriage last month. Gay couples have been legally able to marry in the state since Oct. 15, and the state now recognizes marriages of same-sex couples that took place legally in other states.

Thursday’s ruling, which upheld same-sex marriage bans in Kentucky, Michigan, Ohio and Tennessee, is “significant because it establishes a conflict among the circuits, and creates a situation in which the Supreme Court is likely going to have to resolve the issue,” said Todd Dvorak, spokesman for Idaho Attorney General Lawrence Wasden. “Because of that, we are moving forward with our plans to file a petition for a writ of certiorari with the U.S. Supreme Court.” That’s the process for asking the high court to take up an appeal. Dvorak said the state has until Jan. 5 to file that petition.

Idaho Gov. Butch Otter, who already has a petition pending with the 9th Circuit asking that court to reconsider its ruling, welcomed the 6th District ruling. “This decision reinforces many of the same points I have made in federal court here and in the 9th Circuit – that defining marriage is a states’ rights issue under the Tenth Amendment,” Otter said in a statement. Otter has continued to press the case, even forcefully speaking out against same-sex marriage in his election-night victory speech to GOP supporters late on Tuesday night. “I’m going to continue that fight as long as I possibly can,” he declared to cheers and applause.  You can read my full story here at spokesman.com, and watch video of the governor’s election-night comments here.

Idaho’s legal bill for same-sex marriage appeals tops $90,000

Idaho is paying another $10,000 to outside attorneys for its continued appeals of the federal court decision overturning the state’s ban on same-sex marriage as unconstitutional. According to records obtained pursuant to a public records request, Gov. Butch Otter’s office has agreed to pay Washington, D.C. attorney Gene Schaerr $10,000 for filing a petition to the 9th Circuit Court of Appeals asking the court to have a larger, 11-judge panel re-hear Idaho’s case in an “en banc” review.

The flat fee of $10,000 is just for the petition; the agreement leaves open the possibility of Otter hiring Schaerr to do additional, related work. You can read it here.

That brings the state’s legal bill to challenge U.S. Magistrate Judge Candy Dale’s May 2014 decision overturning the state’s ban on same-sex marriage to $91,477 so far, including $86,920 for private attorneys hired to represent Otter. The figure also includes some costs incurred by Attorney General Lawrence Wasden’s office in the original appeal to the 9th Circuit, but Wasden used staff attorneys, so the expenses were small.

The state also could be on the hook for the plaintiffs’ attorney fees and costs for the original federal lawsuit, since the state lost; a pending motion asks the U.S. District Court to order Idaho to pay nearly half a million dollars. The state also could be asked to pay the plaintiffs’ fees and costs for the state’s unsuccessful appeals.

State’s legal bill for same-sex marriage appeals tops $80,000, still growing

Idaho’s legal bill for challenging a federal judge’s decision overturning the state’s ban on gay marriage has now topped $80,000, and that was before Gov. Butch Otter’s latest appeal to the 9th Circuit. In response to a public records request, Otter’s office has released an Oct. 7 agreement with Washington, D.C. attorney Gene Schaerr to pay a flat fee of $10,000 for two specific legal briefs: One appealing to the 9th Circuit Court of Appeals for a stay, to keep its decision legalizing same-sex marriage in Idaho from taking effect; and another appealing to the U.S. Supreme Court for the same thing.

Both were filed, and both were unsuccessful; same-sex marriage became legal in Idaho on Oct. 15.

Prior to that, Idaho had spent $71,477 to challenge U.S. Magistrate Judge Candy Dale’s May 2014 decision overturning the state’s ban on same-sex marriage, $66,920 of that for outside lawyers hired to represent Otter. The bills for the stay requests bumped the total up to $81,477, including $76,920 for private attorneys.

Since then, Otter has filed a petition with the 9th Circuit requesting an en banc review, a review by a larger, 11-judge panel, of that court’s earlier ruling by a three-judge panel. Otter also filed a motion for permission to exceed the 15-page limit on such petitions; the court granted the motion and allowed Schaerr to file a 35-page brief on behalf of Otter. The 9th Circuit has now asked the plaintiffs in Idaho’s same-sex marriage case to file a response to Otter’s petition within 21 days.

The governor’s office has not yet responded to requests for information on costs for that legal action. Earlier, in the state’s appeal to the 9th Circuit, Otter was represented by private attorney Monte Stewart, who charged the state $250 an hour. Stewart has withdrawn from representing Idaho; Otter replaced him with Schaerr.

Idaho Attorney General Lawrence Wasden also participated in the original appeal to the 9th Circuit, but did so using staff attorneys, so there were no outside legal bills. Wasden has announced he’s planning to file an additional appeal to the U.S. Supreme Court in the coming weeks.

The state also could be on the hook for the plaintiffs' attorney fees and costs for the original federal case, since the state lost; a pending motion asks the U.S. District Court to order Idaho to pay nearly half a million dollars.

ACLU: Hitching Post falls under religious exemption, no challenge planned

Here’s a news item from the Associated Press: BOISE, Idaho (AP) — The American Civil Liberties Union of Idaho says it will not challenge a northern Idaho wedding chapel's refusal to conduct gay marriages because the chapel falls under a religious exemption. Interim Executive Director Leo Morales said in a news conference Thursday that the Hitching Post became a religious corporation in Idaho nearly a month ago. Morales says the ACLU believes that under that exemption, the chapel does not have to comply with the city of Coeur d'Alene's ordinance banning discrimination based on sexual orientation because the chapel only provides religious services. A Christian religious rights legal organization filed a federal lawsuit last week against the city contending the chapel could be compelled to perform gay marriages under the city's anti-discrimination ordinance. Gay marriage became legal in Idaho on Oct. 15.

Capitol footage in Otter campaign ad came from ‘Add the Words’ documentary

The Lewiston Tribune reports today that part of the footage in one of Gov. Butch Otter’s campaign ads came from an unlikely source – out-takes from the “Add the Words” documentary. Tribune reporter Joel Mills writes that the footage is an interior view of the state capitol dome that appears in Otter’s “Business Testimonial” ad. “I rewound it and said, ‘Oh my God, that’s my shot,’” filmmaker Michael Gough told the Tribune.

The feature-length documentary film told the story of protesters at the 2014 Idaho Legislature who called for a hearing on legislation to amend the Idaho Human Rights Act by adding the words “sexual orientation” and “gender identity,” to prohibit discrimination on those bases. No hearing was granted, and hundreds of protesters were arrested.

Gough told the Tribune he put some of the unused, generic shots from the project on a stock footage website, where anyone can purchase them. About a month ago, he got word that someone had bought a five-second clip of the dome for $75; Gough didn’t know who until he spotted the footage in the Otter ad. “I was excited because somebody actually paid $75 for it,” he said.

Otter said recently in a political debate that he expects a hearing to be granted on the anti-discrimination bill next year, and blamed the “antics” of protesters for lawmakers’ refusal to grant a hearing this year. Otter also has been an outspoken opponent of allowing same-sex couples to marry in Idaho, though federal courts have thrown out Idaho’s ban on gay marriage as unconstitutional; this week, Otter asked the 9th Circuit Court of Appeals to rehear Idaho’s case. The Tribune’s report is online here, though a subscription is needed to see the full story. You can see Otter's campaign ad online here; the dome footage is at the 12-second mark.

Otter’s other late-night filing to 9th Circuit: Motion to file 35-page, rather than 15-page, en banc petition

Well, here’s the answer about the over-length petition Idaho Gov. Butch Otter filed to the 9th Circuit late last night: He also filed a motion, which was unopposed by the plaintiffs, for permission to file an over-length brief of up to 35 pages, though court rules limit en banc petitions to 15 pages; you can read the motion here. Otter’s reasoning? “The panel misunderstood, and for the most part ignored, Governor Otter’s fundamental argument regarding how the panel’s redefinition of an institution thousands of years old into a genderless union will negatively impact that institution, and with it Idaho and its citizens, especially children of heterosexuals. This needs to be carefully explained.”

Otter petition to 9th Circuit: ‘Policy-making masquerading as law’

It’s been a long day, but now, a bit after 10 p.m. Boise time, Gov. Butch Otter’s petition for an en banc review of the 9th Circuit Court of Appeals ruling in Idaho’s same-sex marriage case finally has been filed. You can read it here. Its conclusion says, “The panel’s decision appears to be judicial policymaking masquerading as law. But it is bad law, conflicting with numerous decisions of this Court, other circuits and the Supreme Court. And it is even worse policy, creating enormous risks to Idaho’s present and future children—including serious risks of increased fatherlessness, reduced parental financial and emotional support, increased crime, and greater psychological problems—with their attendant costs to Idaho and its citizens. For all these reasons, the panel decision merits en banc review.”

Otter had an outside attorney to help with the 83-page filing, Gene Schaerr of Washington, D.C. The argument itself, outside of all tables of content, attachments and so forth, runs 25 pages. Here’s the odd thing: The 9th Circuit’s rules about en banc petitions are very specific, according to its guide to practice for attorneys, which is posted on the 9th Circuit’s website here. The deadline is 14 days after the decision; because the decision was issued Oct. 7, today is the deadline. And, the practice guide says, on Page 79, “Length. A petition for rehearing is limited to 15 pages. Fed. R. App. P. 35(b)(2).”

Does that matter? Might Otter’s petition be disqualified because it exceeds the limit? I don’t know the answers to these questions and it’s too late to ask anyone. But I’ll be interested to find out in the morning.

Monte Stewart no longer represents Otter in same-sex marriage case

A check of the 9th Circuit docket for Idaho’s same-sex marriage case doesn’t show Gov. Butch Otter’s petition for an en banc review yet, but it does show another filing: Attorney Monte Neil Stewart has withdrawn from representing Otter in the case. Stewart, who argued both Idaho’s and Nevada’s cases at the 9th Circuit, filed a controversial petition for rehearing in Nevada’s case last week claiming that the three-judge panel that heard both states’ cases was intentionally stacked with judges sympathetic to the plaintiffs. The charges, which question the integrity both of the judges who heard the case and the entire 9th Circuit administration for how it assigns judges to cases, raised eyebrows around the country and were highly unusual; the court hasn’t yet acted on Stewart’s petition.

When Stewart filed his petition, Otter’s office had no comment on it.

Idaho updates marriage license certificates in wake of same-sex marriage court ruling

The Idaho Board of Health & Welfare met today, and unanimously approved updates to the state’s marriage license certificates, including giving both applicants for a license the option to identify themselves as “bride,” “groom” or “partner.” The form also collects information on the gender of each applicant.

“Costs to implement the change are minimal,” the board said in a news release today. “The forms are generated through automated systems by the county clerks and do not require forms to be printed and provided by the state.” Today’s action came in response to the recent court ruling legalizing same-sex marriages in Idaho. You can see the new form here.

Otter says he’ll file petition for en banc review of 9th Circuit ruling in Idaho’s gay marriage case

Idaho Gov. Butch Otter announced today that he's filing a petition with the 9th Circuit U.S. Court of Appeals for an en banc re-hearing of Idaho's same-sex marriage case; you can read my full story here at spokesman.com. "I will continue defending Idahoans’ self-determination and the will of Idaho voters who decided that traditional marriage is a core principle of our society,” Otter said in a statement; click below for his full statement. He said his office will file the petition later today.

An en banc review at the 9th Circuit, because the circuit is so large, would mean that a larger 11-judge panel would re-hear the case, after a three-judge panel made the decision earlier. In smaller circuits, an en banc review is a rehearing by the full court. Otter and Idaho Attorney General Lawrence Wasden earlier requested that 9th Circuit assign a full 11-judge panel to hear Idaho's case in the first place, rather than a three-judge panel; that request was denied. Wasden is not joining with Otter in today's petition. However, his spokesman, Todd Dvorak, said today that Wasden does plan to file an appeal to the U.S. Supreme Court in the coming weeks.

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 spokesman.com 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….