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Idaho taxpayer costs so far for same-sex marriage appeal: $71K

Idaho taxpayers’ costs so far for continuing to challenge the federal court decision overturning the state’s ban on same-sex marriage: $71,477. In response to a request under the Idaho Public Records Law, Idaho Attorney General Lawrence Wasden’s office reported spending $2,569, for an appellate filing fee and for travel for two attorneys to the 9th Circuit arguments this week in San Francisco. Gov. Butch Otter’s office reported spending $68,899, including $66,920 for outside counsel.

Private attorney Monte Neil Stewart represented Otter both in the arguments in San Francisco, where he gave the state’s entire presentation of oral arguments; in the preparation of the briefs for that appeal; and in requesting an emergency stay of U.S. Magistrate Judge Candy Dale’s decision overturning the ban while the state appealed. Stewart charged the state $250 an hour, with a maximum charge of $50,000 for preparing the briefs and $7,000 for making the arguments; both those maximums were met.

The figures don’t include salary costs for state employees who did the work as part of their existing jobs, including attorneys in the Attorney General’s and governor’s offices, who handled the initial case at the U.S. District Court in Boise. Cally Younger, attorney for Otter, said the money for the additional expenses there came from the governor’s office general fund.

Reactions to today’s 9th Circuit arguments…

Here's a link to my full story at spokesman.com on today's arguments over Idaho's invalidated same-sex marriage ban at the 9th Circuit U.S. Court of Appeals. After today’s arguments, attorney Deborah Ferguson, who made the arguments on behalf of four Idaho couples who challenged the ban, issued this statement:

Today’s arguments reflected the Ninth Circuit panel’s thorough preparation and careful attention to the serious constitutional issues raised by Idaho’s discriminatory marriage laws. In the past few months, three other federal appeals courts have ruled that laws that deny same-sex couples the freedom to marry deprive their families of equal dignity in violation of the Fourteenth Amendment. We hope the Ninth Circuit will reach the same conclusion and strike down these unjust laws.”

Sue Latta, the lead plaintiff in the case, said, “Traci and I were thrilled to be able to watch our case being argued in one of our country’s most important courts. The judges clearly have studied the case very carefully, and we are hopeful the court will rule soon that the state must treat our family with the same respect as it treats other families.”

Jon Hanian, spokesman for Idaho Gov. Butch Otter, said, “We’re not going to have any comment beyond what was said in court.”

Deputy Idaho Attorney General Scott Zanzig said, “We’re glad to have the case submitted, and we’re appreciative of the fact that the 9th Circuit is going to consider our appeal. I think it’s always difficult to tell just from being at the arguments how things are going to go. … We’re looking forward to a decision.”

Asked why the state opted to yield all its time for arguments to Gov. Butch Otter’s private attorney, Monte Neil Stewart, rather than split the time between Otter’s and Attorney General Lawrence Wasden’s attorneys – including Zanzig, who was present at the counsel table for the arguments – Zanzig said he couldn’t go into detail on that point. “In the 9th Circuit, you get a very short time to argue, and breaking it up can be difficult on anyone being effective,” he said. “But in terms of why that choice was made … I can’t comment on pending cases.”

Carl Tobias, a law professor at the University of Richmond in Virginia who’s been tracking same-sex marriage cases around the country, said the arguments didn’t go well for the state. “I’m glad I wasn’t trying to make those arguments,” he said. “It’s tough when it’s that difficult an argument to make. I just don’t think that those judges were going to be persuaded, and I don’t think they were.”

The state’s arguments focused on how it believed the ban was better for Idaho children in the long run; when pressed by the judges, attorney Monte Stewart suggested that legalizing same-sex marriage would be worse for Idaho kids than the proliferation of divorce that followed no-fault divorce laws. Said Tobias, “That’s not a winning argument, I don’t think.”

Stewart, same lawyer who argued for Idaho, now arguing in favor of Nevada ban…

Monte Neil Stewart, the same attorney who argued Idaho’s case for its same-sex marriage ban at the 9th Circuit, is now defending Nevada’s ban as an intervenor on behalf of the “Coalition for the Protection of Marriage.” At one point in his arguments, he slipped and said “Idaho” instead of Nevada; Judge Stephen Reinhardt corrected him. Amid laughter, Stewart said, “I’m a fourth-generation Nevadan, I’m going to switch gears here.”

A few minutes later, he did it again. Judge Ronald Gould said, “Counsel when you say Idaho, do you mean Nevada?” Amid a quick murmur of laughter again, Stewart said, “This is a lesson to all counsel not to do back-to-back arguments.”

9th Circuit arguments on Idaho marriage law wrap up with reference to future Supreme Court decision…

As the arguments in the 9th Circuit today on Idaho’s same-sex marriage ban wrapped up, Idaho attorney Monte Stewart made a reference to a position taken by U.S. Supreme Court Justice Anthony Kennedy. Judge Stephen Reinhardt interrupted him, saying, “I think you’re going to have an opportunity to find out what Justice Kennedy thinks.” That drew laughter – the U.S. Supreme Court is expected to take up the same-sex marriage issue, likely in other states’ cases, in the coming year.

Reinhardt announced, “This argument will be submitted.”

Of crystal balls and messages…

Monte Stewart, now up for his final five minutes of argument, told the 9th Circuit Court of Appeals that if it’s a question of who has the best crystal ball, Idaho’s crystal ball is even better than the court’s – because it reflects “its collective wisdom” as expressed through the Democratic process, the voters’ approval of a constitutional amendment passed by two-thirds of the state Legislature.

“This is a contest between two different messages,” Stewart told the court. “The message of man-woman marriage is men, you’re valuable and important in the upbringing of the children you bring into this world. Women, you’re valuable and important in the upbringing of the children you bring into this world. Genderless marriage does not send that message. Indeed, it undermines it.”

9th Circuit Judge Marsha Berzon asked Stewart to compare his reference to Idaho’s “crystal ball” in knowing what its people support, through their vote for the constitutional ban on same-sex marriage, to the Loving vs. Virginia case, in which the court overruled bans on interracial marriage. “There were competing crystal balls” in Loving, Berzon said.

Stewart objected. “I suggest there were no crystal balls, because the state never advanced a legitimate interest,” he said. Berzon responded, “It’s one that doesn’t sound very legitimate to us now, but they thought there were legitimate interests.” People objected to mixing of races and thought it would harm society, she noted. Stewart said he hoped she wasn’t comparing that to Idaho’s interest in “preventing fatherlessness and motherlessness.”

Ferguson: ‘You’re imposing a very great harm, for no benefit’

Judge Stephen Reinhardt asked Boise attorney Deborah Ferguson if she thought marriage laws have any effect on “bonding between a mother and a father and a child, and that structure being a better structure for society?” He was referring to earlier arguments from attorney Monte Stewart on behalf the state of Idaho. “I don’t think it has any effect on that,” Ferguson responded.

“I don’t see the marriage of opposite sex and same-sex couples as these different regimes that are being portrayed by the state. My clients are looking for the opportunity to participate in traditional marriage, to marry and have that very intimate adult bond and protect their children in that fashion. And I don’t think that opposite-sex couples are looking to see what same-sex couples are doing, and saying that somehow if same-sex couples are allowed to celebrate and have those very personal bonds, that it’s going to serve as a disincentive for them to marry or to have children or to stay together with their children. … You’re imposing a very great harm, for no benefit.”

Ferguson: Discrimination that ‘stretches beyond the grave’

Deborah Ferguson, attorney for four Idaho couples who successfully sued to overturn the state’s ban on same-sex marriage, said the harms the ban imposes on her clients and those like them are many. “The law imposes a cradle-to-grave discrimination on same-sex couples in Idaho. It pushes them outside,” she said. “Children of gay and lesbian parents in Idaho, unless they have second-parent adoption … don’t have two legal parents to protect them.”

That does send a message in Idaho, Ferguson said, echoing an earlier argument from opposing attorney Monte Stewart about how Idaho's marriage laws send a message. “It tells those children that their parents’ marriages are not worthy of … respect,” she said, “a very harsh message.” She added, “It stretches beyond the grave,” noting that the Idaho State Veterans Cemetery refuses to bury the remains of veterans who are same-sex spouses together.

Judge: Do you care basis as long as you win? Answer: No

Judge Stephen Reinhardt asked attorney Deborah Ferguson, “Do you really care if we decide on fundamental right or equal protection as long as you win?” Amid laughter, she responded, “No.”

“I think the due process and the equal protection arguments are both very important,” Ferguson said, “and they’re very related. I think the Idaho case in front of the court presents both of them squarely to the court, so we would like to see the court decide it on both of those bases.”

Ferguson: Idaho has ‘most sweeping ban’ on same-sex marriage in 9th Circuit

Boise attorney Deborah Ferguson is now arguing the case for the four lesbian couples who successfully sued to overturn Idaho’s ban on same-sex marriage. Idaho has “the most sweeping” such ban in the 9th Circuit, she said. “It bars the possibility of any form of relationship recognition for its same-sex couples, relegating tem to a permanent second-class status,” she told the court.

Rejecting the state’s arguments that the ban is better for children, Ferguson said, “There is no logical nexus here. Allowing same same-sex couples to marry will benefit them and those children.”

Judge Marsha Berzon quickly interrupted her to quiz her about the appropriate level of scrutiny under which the court should consider the case. “I think that the law is unconstitutional on all three bases,” Ferguson said.

Stewart: Same-sex marriage would be worse for Idaho kids than divorce

After Idaho attorney Monte Stewart argued that legalizing same-sex marriage would send a message to society that promotes fatherlessness and motherlessness for Idaho children, Judge Stephen Reinhardt of the 9th Circuit Court of Appeals asked him, “Does Idaho prohibit divorce because it sends a bad message to people? … Doesn’t that do more damage to the ideal that you profess Idaho should be telling people, that they ought to be home with the mother and the father and the child?”

Stewart said no-fault divorce and the expansion of divorce has been bad for children in Idaho. “Pulling the man-woman meaning out of marriage and going with genderless marriage will be the coup de grace,” he said. “We think the effects will be much worse.”

Judge Marsha Berzon asked Stewart, “Is the assumption of your argument that children who are raised in a stable same-sex relationship from birth … (are worse off) than children who are raised in the 30 percent of the houses in Idaho in which by the age of six they are not withtheir biological parents?”

Stewart responded, “Everybody who loves children, and that includes Idaho … hopes sincerely, genuinely, that the conclusions of the no-differences study are valid. Because if they’re valid, then those children are going to be better off.” But Idaho, he said, is “skeptical.” “Idaho has concluded that the price is too high for switching to a radically different meaning at the core of marriage, one that Idaho … believes is going to result … in a higher level of fatherlessness,” he said.

Judge Berzon: ‘This train has left the station’

9th Circuit Judge Marsha Berzon asked Idaho attorney Monte Stewart the percentage of children who grow up in what he describes as the ideal environment – being reared by their married, biological mother and father. Stewart said in Idaho, it’s 68 percent up until age 6, and 58 percent up to age 17. That’s among the highest rates in the country, he said.

“What strikes me is that this train has left the station,” Berzon said, “in the sense that the change has occurred in American marriages before all this. … When women were not able to own property and had to do everything their husbands said and so on, you had a different institution, but that was the core of the heterosexual marriage tradition to begin with. Once all of that changed, yes the number of people who had children in marriage went down considerably, and that may be a bad thing, but it did not have anything to do with this.”

Private lawyer Monte Stewart making Idaho’s arguments to the 9th Circuit

Monte Stewart, a private attorney representing Idaho Gov. Butch Otter, is going to give the state’s arguments, speaking both for Otter and for Attorney General Lawrence Wasden, Stewart told the 9th Circuit. He’ll take up the full 30 minutes allotted to the state’s side.

“Idaho has a good reason that satisfies any level of scrutiny for its decision to preserve man-woman marriage and therefore a necessity to not include same-sex couples in marriage,” Steward told the court. “The good reason is this: The man-woman meaning at the core of the marriage institution generates and sustains the child’s bonding right, which is a social expectation, a strong social message, a social promise and norm that to the greatest extent possible a child will know and be reared by her mother and father, the two people who brought her into this world and whose family and biological heritage are an important part of her very being.”

Judge Marsha Berzon interrupted Stewart. “Your burden here, though, is to demonstrate why allowing other relationships than the ones you regard as optimum interferes with the ones you regard as optimum,” she told him. “I accept that burden your honor, and here is the answer,” Stewart replied. But as soon as he began, and made reference to heterosexual men and women marrying, Berzon interrupted him again. “The heterosexual men and women aren’t going to enter into same-sex marriages, so what’s the issue?” she asked.

Stewart responded, in part, “Because the only way a same-sex couple can be married … is for the state to withdraw its support for the man-woman marriage institution … and implement something new and different, and that is genderless marriage.”

Same-sex marriage arguments being streamed live online

You can watch the oral arguments in Idaho's appeal to the 9th Circuit Court of Appeals of the overturning of its ban on same-sex marriage online live here. There's more on the case, including the arguments laid out in hundreds of pages of legal briefs filed with the court, in my Sunday story here.

All 3 members of today’s 9th Circuit panel have previously ruled in favor of gay rights

As the 9th Circuit Court of Appeals prepares to take up arguments on Idaho's invalidated ban on same-sex marriage - the state has appealed the U.S. District Court decision to the 9th Circuit - the L.A. Times is reporting that all three judges on the 9th Circuit panel today - Judges Stephen Reinhardt, Marsha Berzon and Ronald Gould - have previously ruled in favor of gay rights. Reinhardt wrote the court's decision striking down California's Proposition 8. Berzon joined Reinhardt in a January decision, Smith-Kline, that held that gays can't be excluded from juries because of their sexual orientation. And Gould wrote a ruling in 2008 that reinstated a lawsuit by a military nurse who was fired under the nation's previous “don't ask, don't tell” policy for members of the military. L.A. Times reporter Maura Dolan's report is online here.

Idaho marriage law heads to appeals court

When lawyers for the state of Idaho and for four Idaho lesbian couples face off in a federal appeals courtroom in San Francisco on Monday, the fate of Idaho’s invalidated ban on same-sex marriage will hang in the balance. Idaho is pushing hard in its fight to overturn the May U.S. District Court decision that found its ban on same-sex marriage violates the U.S. Constitution’s guarantees of equal protection and due process. “I am firmly committed to upholding the will of the people and defending our constitution,” Idaho Gov. Butch Otter said after the district court ruled against Idaho.

A three-judge panel of the 9th Circuit U.S. Court of Appeals will hear the arguments on Monday afternoon in San Francisco, and it also will hear arguments in gay marriage cases from Hawaii and Nevada. But Hawaii already allows same-sex marriage, and Nevada officials have declined to defend their law. So most of the focus will be on Idaho.

Otter and Attorney General Lawrence Wasden have pledged to defend the state’s ban all the way to the nation’s highest court. But long before Idaho’s case reaches its final outcome, the U.S. Supreme Court likely will weigh in on other states’ marriage law cases and settle the issue. “The Idaho case is not going to get to the Supreme Court for quite a while, even if the 9th Circuit rules pretty quickly,” said Carl Tobias, a professor at the University of Richmond School of Law who’s been tracking gay marriage cases around the country. “And the Utah and Oklahoma ones are there and ready.”

In advance of Monday’s arguments, lawyers on both sides have filed hundreds of pages of briefs with the courts that will play heavily in the 9th Circuit’s decision; you can read my full story here from Sunday’s Spokesman-Review. They include arguments about what’s best for children, why people get married, polygamy, incest, discrimination, human dignity and more.

Nineteen states, including Washington, and the District of Columbia allow same-sex couples to marry. Thirty-one states, including Idaho, have laws or constitutional provisions banning same-sex marriage; nearly all are being challenged. All but one of the 23 federal court decisions on the issue thus far have found bans on same-sex marriage unconstitutional; the one exception came from a federal judge in Louisiana last Wednesday. A day later, federal courts overturned bans in Wisconsin and Indiana.

Click below for an overview from AP reporter Paul Elias in San Francisco.

Idaho joins states calling for U.S. Supreme Court to take up Utah, Oklahoma gay marriage cases

Idaho has joined sixteen other states in two briefs to the U.S. Supreme Court, led by Colorado, urging the high court to take up the issue of same-sex marriage in cases from Utah and Oklahoma. The 17 states ask the Supreme Court to take those up to clear up a “morass” of lawsuits, but don't urge the court to rule one way or another in the briefs; you can see the briefs here and here. Meanwhile, 15 states that permit same-sex marriage, led by Massachusetts, also filed briefs with the high court urging it to take up the cases from Utah, Oklahoma and Virginia, and to overturn the bans. Massachusetts Attorney General Martha Coakley said, “Laws that bar same-sex couples from marrying are discriminatory and unconstitutional. The time has come for this critical issue to be resolved.”

Idaho's joining of the Colorado brief comes just days before Idaho's own same-sex marriage ban is up for oral arguments at the 9th Circuit Court of Appeals on Monday, after a U.S. District Court judge in Idaho overturned Idaho's ban as unconstitional in May. Kriss Bivens-Cloyd, spokeswoman for Idaho Attorney General Lawrence Wasden, said the office had no comment on why it'd joined in the multi-state brief regarding Utah and Oklahoma or how that plays into the state's continuing efforts to defend Idaho's ban. “We have an oral argument on Monday and we are not going to make any comment,” she said. Click below for a full report from the Associated Press in Boston on the multi-state filings to the U.S. Supreme Court.


9th Circuit rejects Otter’s bid for initial en banc review in gay marriage case

The 9th Circuit U.S. Court of Appeals has rejected, without comment, Gov. Butch Otter’s request for Idaho’s same-sex marriage case to go directly to a full 11-judge panel of the court, rather than the usual three-judge panel. Otter made the request in July, saying a full-court review by the appellate court rather than a smaller panel would enhance the “perception of the legitimacy of this court’s resolution.” It’s highly unusual for such a request to be granted.

Today, the 9th Circuit issued a 10-word order, saying only, “Appellant Otter’s petition for initial hearing en banc is denied.”

U.S. Magistrate Judge Candy Dale overturned the Idaho Constitution’s ban on same-sex marriage in May, saying it violated the U.S. Constitution’s guarantees of equal protection and due process. The state is now appealing her ruling to the 9th Circuit; the appeals court has set arguments for Sept. 8.

Victor becomes 8th Idaho city to ban discrimination against gays

Here’s a news item from the Associated Press: VICTOR, Idaho (AP) — A small eastern Idaho town near the border with Wyoming has passed an ordinance banning discrimination against a person because of sexual orientation or gender identity. Boise State Public Radio reports in a story on Thursday that Victor passed the law that offers employment, housing and public accommodation protections for gay, lesbian, bisexual and transgender people. Mayor Zach Smith says the city council unanimously approved the measure. About 2,000 people live in Victor, many making a living by working in nearby Jackson Hole, Wyoming. Smith says the ordinance takes effect Monday. Victor becomes the eighth Idaho city to approve a non-discrimination ordinance.

You can see Boise State Public Radio’s full report here.

Otter wants full-court review of decision overturning Idaho’s same-sex marriage ban

Idaho Gov. Butch Otter is asking the 9th Circuit U.S. Court of Appeals to send Idaho’s same-sex marriage case directly to a full, 11-judge panel of the court, rather than the usual three-judge panel. The request for an initial “en banc” hearing is highly unusual. Typically, a three-judge panel hears appeals, and parties can then request a re-hearing by the larger panel, though that step isn’t required – and they can also appeal a three-judge panel’s ruling directly to the U.S. Supreme Court.

In most circuits, an en banc hearing means all 15 of the circuit’s judges hear the case, rather than just a three-judge panel. But because the 9th Circuit is so large – it has 29 active judges – an en banc hearing means an 11-judge panel, consisting of the chief judge and 10 others selected by random draw.

Otter argued in his motion that the larger panel would give the court’s decision greater “perception of legitimacy,” saying, “A decision by an 11-judge panel stands far higher and stronger than does a decision by a three-judge panel, just as a decision by a three-judge panel stands far higher and stronger than does a decision by a single judge.”

Carl Tobias, a professor at the University of Richmond School of Law, said the move wouldn’t necessarily fast-track the case. “Even if it’s granted, I don’t know how much faster it’s going to be,” he said. “It might even slow it down.” That’s because it could take longer to convene the larger panel, and for all 11 judges to decide on how to rule in their decision. “You’ve got 11 of them you’ve got to convince.” The 9th Circuit has set the appeal hearing in the case for the second week of September; you can read my full story here at spokesman.com.

Idaho gay marriage plaintiffs seek court costs

Here’s a news item from the Associated Press: BOISE, Idaho (AP) — Four couples who successfully sued Idaho Gov. C.L. “Butch” Otter over the state's gay marriage ban are now asking to be reimbursed for nearly half a million dollars of attorney fees and other court costs. The group filed a motion in Boise's U.S. District Court on Tuesday asking that the state be ordered to pay more than $467,000 for the expenses associated with bringing the lawsuit. U.S. District Magistrate Judge Candy Dale overturned Idaho's ban on same-sex marriage earlier this month, saying the ban unconstitutionally denies gay and lesbian residents of their constitutional right to marry. Otter and Idaho Attorney General Lawrence Wasden have appealed that ruling; the case is still pending before the 9th U.S. Circuit Court of Appeals.

In their court filings requesting the fees, attorneys for the four couples wrote, “This is a landmark decision that fully vindicated Plaintiffs’ critical constitutional rights, and it is in the vanguard of a wave of civil rights victories sweeping the country. Accordingly, Plaintiffs are entitled to fully recover the reasonable attorneys’ fees that have been requested.” Click below for a full report from AP reporter Rebecca Boone.

9th Circuit grants stay in marriage case

A three-judge panel of the 9th Circuit U.S. Court of Appeals has stayed the federal court decision legalizing same-sex marriage in Idaho while the decision is appealed to higher courts. You can read the 9th Circuit's four-page order here; and read my full story here at spokesman.com. While granting Idaho Gov. Butch Otter and Attorney General Lawrence Wasden's motion for a stay - preventing the change from taking effect while the case wends its way up on appeal - the 9th Circuit panel also granted the 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 opening briefs are due July 19, the answering briefs by July 18, with final replies 14 days later; no extensions will be granted; and the 9th Circuit will hear the arguments in the appeal the week of Sept. 8 in San Francisco.

The three-judge panel cited the Utah case in which the U.S. Supreme Court issued a stay 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.”

Shannon Minter, one of the attorneys for the four Idaho couples who successfully 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.”

Lori Watsen, who with her wife Sharene was among the couples bringing the case, said in a statement, “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.” 

Gay marriage backers rally with smiles, cake on courthouse steps

Close to 200 people gathered on the steps of the Ada County Courthouse today for what was originally planned as a celebration of the start of legal gay marriage in Idaho, but thanks to a 9th Circuit temporary stay, instead became a feel-good gathering supporting the progress toward that goal. Here, organizer Emily Walton cuts the donated wedding cake to feed the crowd; same-sex couples, supporters, friends and family members mixed happily, some saying the gathering felt more like a reunion.

“I think this is awesome,” said a smiling Sue Latta, the lead plaintiff in the successful lawsuit that overturned Idaho’s ban on same-sex marriage. “This is not just for us, this is for everybody, young, old, gay, straight. Here’s what I believe: If we voted on it today, the constitutional amendment would not pass.” Periodically, cars passing by on busy Front Street honked their horns, prompting those along the sidewalk to wave and cheer.

Off to one side, four protesters stood quietly with signs saying, “My vote should count” and “I support you Gov. Otter and Attorney General Wasden, Idaho voted, our vote should stand.”

Walton said, “We’ve tried to avoid any really political rally stuff. We want people to be happy – this is still a great crowd.”

Where it stands: Idaho same-sex marriage ruling put on temporary hold by appeals court

Here’s a link to my full story at spokesman.com on the delay in what otherwise was looking to be a historic moment tomorrow – the beginning of legal same-sex marriages in Idaho. Idaho’s gay marriage ban was overturned Tuesday when U.S. Magistrate Judge Candy Dale ruled it unconstitutional. Dale said Idaho must begin issuing marriage licenses to same-sex couples starting Friday morning at 9, but the state filed emergency motions seeking a delay while it appealed the ruling.

On Thursday afternoon, the 9th Circuit U.S. Court of Appeals issued a temporary stay, putting a hold on gay marriages in Idaho while it considers the state’s motions. The court didn’t signal how long it would take; for now, everything’s on hold. Deborah Ferguson, lead attorney for the four couples who successfully sued to overturn Idaho’s ban, noted that the 9th Circuit hasn’t decided whether Dale’s order should be stayed while it’s appealed to higher courts. It’s just given itself more time to consider the motions for such a stay and the couples’ objections to it.

Wasden files brief, says state would be harmed if marriage ruling wasn’t stayed, then was overturned on appeal

Idaho Attorney General Lawrence Wasden has filed a response brief with the 9th Circuit Court of Appeals, pressing for his motion to stay the change in Idaho’s marriage laws until appeals have been completed. Wasden responds to arguments from lawyers for four same-sex couples who urged the 9th Circuit not to stay the ruling. U.S. Magistrate Judge Candy Dale issued the ruling Tuesday, declaring Idaho’s ban on same-sex marriage unconstitutional and ordering the state to permit same-sex marriages starting Friday at 9 a.m. The 9th Circuit has now issued a temporary stay, delaying that, while it considers motions from Wasden and Gov. Butch Otter to hold off on the change while the federal court decision is appealed.

Wasden argues that the U.S. Supreme Court’s order staying the effect of a decision overturning Utah’s same-sex marriage ban was “an unmistakable signal by the Supreme Court that lower federal courts should not disrupt the status quo through intrusive injunctive relief.” He also argues that there are ways the state could be harmed if there’s no stay, but the decision later is overturned on appeal, because the state would process everything from tax returns to worker’s compensation spousal benefits under the ruling, and then would have to figure out how to undo those things. All those take “significant public resources to administer,” he argued. You can read the 7-page brief here.

Lead plaintiff: ‘Burden is on the state to prove that our marriages are detrimental to anyone, and they can’t’

“As hard and as heart wrenching as this ‘temporary stay’ is for all those people who were planning to finally get married tomorrow, this may be the best thing that the court could have done,” Sue Latta, the lead plaintiff in Idaho’s same-sex marriage court case, told Eye on Boise this afternoon. “If they had had a knee-jerk reaction, we probably would have gotten a ‘stay pending appeal,’ which will take many months, but they didn't do that. They are going to take a hard look at all the new case law that has been generated … and whether it seems like the state will ultimately be successful, and I believe that they are going to deny the stay. In my heart I believe it because we are on the right side of this.”

Noted Latta, “The burden is on the state to prove that our marriages are detrimental to anyone, and they can't. We are going to win because all we are asking for is to be treated like everyone else, and that is not an unreasonable thing to ask for.”

Latta and her wife Traci Ehlers, of Boise, have been together for 10 years, and were legally married in California in 2008. They are one of four couples who successfully sued to overturn Idaho’s constitutional ban on same-sex marriage; U.S. Magistrate Judge Candy Dale ruled the ban unconstitutional on Tuesday. The state is appealing to the 9th Circuit Court of Appeals.

Idaho county clerks prepare for marriage law changes

The Idaho Association of Counties convened county clerks from across the state in a webinar this afternoon to go over procedures to comply with the federal court decision this week legalizing same-sex marriage in the state. Just before the session started, the news came that the 9th Circuit Court of Appeals had issued a temporary stay, delaying the change, which had been scheduled to take effect Friday morning at 9. “They were pretty well ready,” said Dan Chadwick, IAC executive director. “Now we’ve been given a little bit of breathing room and we can fine-tune it a little bit more.”

The main change needed is to forms for marriage licenses, which now identify “bride” and “groom.” “The question is do you use bride-bride, groom-groom, spouse, person – there are a number of different opinions out there, and all of them are correct,” Chadwick said. “Part of the discussion was to make sure that the marriage license itself ends up in a format that is a family keepsake, because it is.”

He said, “We have given ourselves a deadline of Tuesday of next week to finalize the forms, because we don’t know what the courts are going to do. What we want to do is be ready if the stay is lifted and the injunction goes into effect, and we’re pretty close.”

The county clerks conferred with Idaho Attorney General Lawrence Wasden and representatives of the state’s bureau of vital statistics at the webinar, Chadwick said. “We had over 50 participants on the webinar. My guess is we had pretty close to every county participating.”

Said Chadwick, “If the injunction goes into effect, the counties are ready to perform their duty.”

Minister ‘sad’ at cancelling plans to perform free same-sex weddings at Kootenai courthouse tomorrow

North Idaho Unitarian Universalist Fellowship minister Tracy Springberry had planned to be at the Kootenai County Courthouse in the morning to perform same-sex marriages for free for anyone who wanted them, and was disappointed to hear this afternoon of the temporary stay from the 9th Circuit, delaying the change in Idaho’s marriage laws. “That makes me mad,” she said. “I was so hopeful that would not happen. … I guess we won’t do that.”

Springberry said Unitarian Universalists have been performing same-sex marriage ceremonies since the ‘70s. “We really believe, in my tradition, that people who are in committed, loving relationships need to have those recognized by their communities and their societies and have legal protections, and that everyone should be treated equally and respectfully,” she said. “The status of things in our country at this point sometimes means I cannot live out my faith – for me, it’s a very important religious issue.”

Springberry said she’d put the word out that she’d be at the courthouse, following the lead of other Unitarian Universalists in other states when their states legalized same-sex marriage. “I’m sad,” she said. “But I kind of feel like this is sort of the way this goes. It’ll be a bumpy ride. I think it’ll probably pass eventually.”

Wedding reception-style party still on at courthouse in the morning, despite stay…

A party at the Ada County courthouse featuring wedding cake for 300 is still on, says organizer Emily Walton, even though the 9th Circuit Court of Appeals has issued a temporary stay of the ruling overturning Idaho’s ban on same-sex marriage. The ruling otherwise would have taken effect at 9 a.m. on Friday.

“We knew all along a stay could be issued at any time,” Walton said. “I know it won’t be as fun at all, but I think it’s really good to get together and show support.” Now, instead of celebrating same-sex couples getting married, she said, “It’s about couples who can’t get married now.”

The cake has been ordered from – and largely donated by – Pastry Perfection, and will feature white frosting, rainbow sprinkles and rainbow ribbon, Walton said.  Flying M has donated coffee for the party. “We really wanted it to be just like a wedding reception,” she said. “I know eventually gay people in Idaho will be able to get married, just maybe not tomorrow.”

Otter says he ‘appreciates’ the 9th Circuit’s temporary stay on marriage ruling, avoids ‘chaos and confusion’

Gov. Butch Otter issued the following statement on the temporary stay issued this afternoon by the 9th Circuit Court of Appeals, blocking legal same-sex marriage from beginning tomorrow morning at 9:

“I appreciate the 9th U.S. Circuit Court of Appeals stepping in to ensure Idaho will not have to endure the same kind of chaos and confusion that Utah faced after a similar lower-court decision. Today’s ruling stays the federal magistrate’s order and maintains the status of marriage as defined by the Idaho Constitution – between one man and one woman. Meanwhile, I am proceeding with an aggressive challenge in the appellate court. I’m hopeful for a better outcome, but in any event I am committed to defending our Constitution and the will of Idaho voters.” 

9th Circuit issues temporary stay, blocks same-sex marriages from starting tomorrow in Idaho

The 9th Circuit Court of Appeals has just issued a stay, temporarily halting U.S. Magistrate Judge Candy Dale’s order permitting same-sex marriage in Idaho from taking effect as scheduled Friday morning. The appeals court’s brief order says Dale’s decision “is temporarily stayed pending this court’s disposition of appellants’ emergency motions for a stay pending appeal.”

The court didn’t signal how long it would take to consider those motions. For now, everything’s on hold.