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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.

Couples file opposition brief in 9th Circuit, urging no stay on marriage ruling

The four couples who successfully sued to overturn Idaho’s ban on gay marriage have filed a 23-page brief in the 9th Circuit Court of Appeals objecting to the state’s motion for a stay that would block the decision from taking effect tomorrow morning. You can read their brief here.

While Gov. Butch Otter is arguing that a stay should be issued while the state appeals U.S. Magistrate Judge Candy Dale’s ruling, pointing to stays issued in other same-sex marriage cases including one issued by the U.S. Supreme Court in a Utah case, the plaintiffs say the Utah case was the first one to come up after the Windsor decision in which the U.S. Supreme Court overturned the federal Defense of Marriage Act, or DOMA. “The stay application had to be measured against a limited jurisprudence of a single case,” wrote Deborah Ferguson, lead attorney for the couples. Subsequent stays were issued citing that case, she wrote. “Since that decision, however, an unbroken wave of federal and state courts in every corner of the nation – including Arkansas, Illinois, Indiana, Kentucky, Michigan, New Mexico, New Jersey, Ohio, Oklahoma, Tennessee, Texas and Virginia – have come to the same conclusion: In the wake of Windsor, marriage equality is a constitutional imperative. Not a single court in the nation has found to the contrary.”

Ferguson argued that the state’s motions for an emergency stay, rather than deferring to the Utah decision, should be subject to a four-part test: 1, whether the state is likely to succeed on the merits; 2, whether the state would be “irreparably injured” if a stay isn’t issued; 3, whether issuing a stay would “substantially injure” same-sex couples; and 4, “where the public interest lies.”

She argued that the state’s motion for the stay fails all four points in the test. “Defendants are unable to articulate any concrete way in which permitting same-sex couples to marry or recognizing their existing marriages would be detrimental to the State or its residents, much less cause irreparable harm,” Ferguson wrote. “Moreover, the public is harmed when families and children are deprived of the benefits and stability that marriage provides.”

The plaintiffs asked that if the 9th Circuit does decide to issue a stay, it speed up its handling of the appeal from the usual timeframe, and hear arguments this summer.

Idaho GOP warns same-sex marriage will lead to ‘disintegration of our society,’ Ringo calls on Otter to accept ruling

Catching up on a couple of items from yesterday:

The Idaho Republican Party issued a statement decrying U.S. Magistrate Judge Candy Dale’s ruling overturning Idaho’s ban on same-sex marriage. In it, party Chairman Barry Peterson said, “The disintegration of marriage will lead to the disintegration of our society. Judge Dale is wrong. The State has a valid interest in promoting the optimal circumstance for every child - and that is being raised in a home with both a loving mother and father.” You can read the full statement here.

And longtime state Rep. Shirley Ringo, D-Moscow, who is running for Idaho’s 1st District congressional seat, sent out a statement calling on Gov. Butch Otter to “immediately accept the federal court ruling” and allow Navy veteran Madelynn Lee Taylor to be buried with her late wife, Jean Mixner, at the Idaho State Veterans Cemetery. “I know Gov. Otter is going to appeal this ruling – he has an election next week, after all – but I hope he’ll make a call to the cemetery’s administration and ask that they find a spot for Jean before he races to court,” Ringo said. “More importantly, I hope he’ll reconsider his position and embrace marriage equality here in Idaho.” You can read her full statement here.

Wasden files second emergency motion to 9th Circuit, seeking delay in marriage case

Idaho Attorney General Lawrence Wasden has now filed an emergency motion with the 9th Circuit Court of Appeals as well, seeking to delay the effective date of a federal judge’s order permitting same-sex marriage in Idaho starting Friday morning. Wasden argues that the couples who sued to overturn the ban would be the ones harmed if a stay isn’t granted, because they’d be allowed to marry, but then, if the ruling is subsequently overturned on appeal, their marriages could be legally undone. “None of the parties’ interests, nor those of non-party same-sex couples, are served by the manifold complications attendant to such ‘de-marriage,’ the Attorney General argues. “Absent a stay, marriages would be entered into under a cloud of potential impermanence that has quite significant practical consequences if the district court got it wrong.”

You can read the attorney general’s motion here.

Otter files stay request with 9th Circuit, says he’ll fight for ‘Idaho’s right to self-determination’

Idaho Gov. Butch Otter has filed a motion for an emergency stay with the 9th Circuit U.S. Court of Appeals, asking that a federal judge’s order declaring same-sex marriage legal in Idaho not take effect Friday morning as scheduled. You can read Otter’s 25-page brief here. He also issued this statement:

“My first and highest responsibility is to defend the Idaho Constitution and the will of the people of Idaho as expressed at the ballot box. Idaho voters decided this issue in 2006 by defining ‘marriage’ in our Constitution as a union between a man and a woman. As Governor, it is my duty to aggressively support that decision throughout the legal process. We did that before Judge Dale with arguments that go to the heart of Idaho’s values and respect for the family unit as it’s been embraced by society for millennia. But we have seen enough federal judges around the country ignoring the expressed will of voters and the constitutionally protected sovereignty of states that we know this issue will be finally decided by the United States Supreme Court.  My job now is to ensure our state’s voice is heard loud and clear on appeal, and that Idaho’s right to self-determination is not further undermined.”

Otter, Wasden file notices of appeal to 9th Circuit in marriage case, Otter brings in new lawyer

Both Idaho Gov. Butch Otter and Attorney General Lawrence Wasden have now filed notices of appeal to the 9th Circuit Court of Appeals, to challenge U.S. Magistrate Judge Candy Dale’s ruling overturning Idaho’s ban on same-sex marriage. Those brief notices just say they’re appealing to the higher court.

The governor also is bringing in an additional attorney, Monte N. Stewart, the founding president of the Utah-based Marriage Law Foundation and former U.S. Attorney for Nevada; Stewart now is a Boise attorney. Stewart has worked to defend bans on same-sex marriage in at least eight states, including Utah, where he was co-chairman of the group that campaigned for the ballot measure imposing Utah’s now-challenged constitutional ban; several of his writings were cited in Otter’s arguments in the Idaho case.

Also in the past two hours, Dale has issued a judgment, formalizing her decision in the case – allowing legal same-sex marriages to begin Friday morning at 9 – and ordering the clerk of the court to close the case.

Todd Dvorak, spokesman for Wasden, said the Attorney General had been planning to file a motion for a stay of Dale’s order with the district court in Idaho, but said, “That was really short-circuited by the judge’s denial of the governor’s motion. And then she filed a judgment, essentially ending things there.”

Now, he said, Wasden plans to file his motion for a stay of Dale’s ruling with the 9th Circuit before the end of the day today.

Otter issued this statement:

“Judge Dale’s denial of the State’s request for a stay of her decision on same-sex marriage is regrettable in light of the Supreme Court’s decision to stay a similar case, but not surprising. We will appeal to the 9th Circuit Court.” 

Court rejects Otter’s motion for stay, marriage ruling stands

U.S. Magistrate Judge Candy Dale has denied Gov. Butch Otter’s motion for an emergency hearing on his bid to stay her decision overturning Idaho’s ban on same-sex marriage – and she’s also denied the motion for a stay. “Having fully reviewed the record, the Court finds that the facts and legal arguments are adequate presented in the Governor’s motion, the briefs on the merits, and the record,” she wrote in an order issued just now. “Accordingly, in the interest of avoiding delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this matter will be decided on the record without oral argument.”

She then proceeded to decide it. “This case involves serious legal questions, but as the Court’s May 13 Order makes clear, Governor Otter is not likely to succeed on the merits,” the judge wrote. “The State’s continued enforcement of its laws against same-sex marriage irreparably harms Plaintiffs and other same-sex couples.”

She found that the “public interest” doesn’t favor “preserving a status quo that deprives individuals of their constitutional rights.” So her ruling stands: Unless a higher court intervenes, same-sex marriage will become legal in Idaho on Friday morning.

Here is our coverage of Tuesday night's initial ruling by Dale.   

No hearing this morning; Wasden working on second motion for stay

It does not appear that the U.S. Magistrate Judge Candy Dale plans to schedule a hearing by noon today, as requested by Gov. Butch Otter, on his motion to stay her decision overturning Idaho’s ban on same-sex marriage. The court referred inquiries to its docket, which shows nothing scheduled. Standard practice in U.S. District Court is for any hearings to be noticed on the court docket, with time for the parties to get to court and be prepared.

The current status of the case, according to the court docket, is that the ban has been permanently enjoined as unconstitutional, with the injunction taking effect Friday at 9 a.m. Boise time.

Todd Dvorak, spokesman for Idaho Attorney General Lawrence Wasden, said, “We have not heard anything. We are in the process of filing a motion for a stay.” That’s like to be filed later today, he said. “We are not asking for an emergency hearing when we file our motion to stay,” Dvorak said. “We will be gently asking the judge to expedite the process if possible.”

Otter requests emergency hearing on stay in gay-marriage case by noon today; no response yet from court

Idaho Gov. Butch Otter has requested an emergency hearing from the U.S. District Court by noon today on his motion for a stay in the decision overturning Idaho’s ban on same-sex marriage, but that’s just two hours away and the court hasn’t responded. Jon Hanian, Otter’s press secretary said, “The injunction as we understand it would go into effect on Friday. And so we filed a motion for a stay until this question is decided by a higher court. We’re appealing, and so we believe that we want to avoid what Utah went through and the confusion and chaos that that created.”

Attorney General Lawrence Wasden also is working on a motion for a stay, though nothing’s been filed yet. Hanian said, “There are some other legal options and we’re looking at all of them. We’re hopeful we’ll hear something soon on our request for emergency hearing.”

The governor’s emergency request for hearing says if he doesn’t get a hearing or “some other appropriate relief” by noon today, “he will have no choice but to file a Notice of Appeal … and seek in unseemly haste a Ninth Circuit stay, and if necessary, a stay from Circuit Justice Kennedy.” You can read the governor’s latest filing here.

 

Idaho becomes 11th state to see gay marriage ban overturned in federal court

Here's a link to my updated full story at spokesman.com on today's federal court ruling overturning Idaho's ban on same-sex marriage. Unless a higher court intervenes, same-sex couples in Idaho can legally marry starting Friday morning. Just a day earlier, Idaho Gov. Butch Otter had filed a pre-emptive motion asking U.S. Magistrate Judge Candy Dale to stay her decision - blocking it from taking immediate effect - if she ruled against Idaho’s ban, to avoid the “chaos, confusion, conflict and uncertainty” that would ensue if same-sex couples in Idaho were allowed to marry, but then subsequent appeals halted such marriages. Dale declined.

Idaho now becomes the 11th state in which federal courts have overturned a state ban on same-sex marriage, all in the past half-year; plus, a state court invalidated Arkansas' ban last week, and state courts in New Jersey and New Mexico have overturned their states' bans. Deborah Ferguson, lead attorney for the Idaho couples who sued, said, “When we filed this case in November, there hadn't been a single federal decision issued.” Most of those cases are on appeal. “These cases are happening simultaneously around the country,” Ferguson said. With the state vowing to appeal, it’s possible that Idaho’s case could be the one that arrives first at the U.S. Supreme Court. Said Ferguson, “We will vigorously defend this judgment.”

What the judge said…

Here are some of U.S. Magistrate Judge Candy Dale’s comments in her 57-page decision today overturning Idaho’s ban on same-sex marriage as unconstitutional:

“After careful consideration, the Court finds Idaho’s Marriage Laws unconstitutional. This conclusion reaffirms a longstanding maxim underlying our system of government—a state’s broad authority to regulate matters of state concern does not include the power to violate an individual’s protected constitutional rights. … Idaho’s Marriage Laws deny its gay and lesbian citizens the fundamental right to marry and relegate their families to a stigmatized, second-class status without sufficient reason for doing so. These laws do not withstand any applicable level of constitutional scrutiny.”

In her conclusion, the judge wrote:

“The Plaintiffs are entitled to extraordinary remedies because of their extraordinary injuries. Idaho’s Marriage Laws withhold from them a profound and personal choice, one that most can take for granted. By doing so, Idaho’s Marriage Laws deny same-sex couples the economic, practical, emotional, and spiritual benefits of marriage, relegating each couple to a stigmatized, second-class status. Plaintiffs suffer these injuries not because they are unqualified to marry, start a family, or grow old together, but because of who they are and whom they love.”

The judge dismissed the state’s main argument, writing,

“The Defendants offered no evidence that same-sex marriage would adversely affect opposite-sex marriages or the well-being of children. Without proof, the Defendants’ justifications echo the unsubstantiated fears that could not prop up the anti-miscegenation laws and rigid gender roles of days long past. Then as now, it is the duty of the courts to apply the law to the facts in evidence. Here, the facts are clear and the law teaches that marriage is a fundamental right of all citizens, which neither tradition nor the majority can deny.” 

Plaintiffs, attorneys in same-sex marriage case: ‘An enormously important decision’

Outside the federal courthouse in Boise this evening, attorneys and the four couples who sued successfully to overturn Idaho’s same-sex marriage ban were jubilant. Unless a higher court intervenes – the 9th Circuit Court of Appeals or the U.S. Supreme Court – same-sex couples in Idaho will be able to marry, starting Friday morning at 9. “If there’s no stay, we’re going to be first in line Friday morning,” said a tearful Shelia Robertson, who has been with partner Andrea Altmayer for 16 years; the two are raising a four-year-old son.

“My little boy can grow up in a family just like anybody else’s little boy, and know that his mothers are connected and protected,” she said. “Friday morning I’ll be at the courthouse requesting a license, and then we’ll file for a step-parent adoption.” Added Altmayer, “It means the world.”

Sue Latta, with wife Traci Ehlers – the two were legally married in California in 2008 – said, “We’re ecstatic – there couldn’t have been a better ruling. We had a valid legal argument.”

Deborah Ferguson, lead attorney in the case, said, “This is a historic day for Idaho and Idaho’s families. We are absolutely thrilled with this decision.” She complimented the four couples for their courage in coming forward to bring the case.

U.S. Magistrate Judge Candy Dale, in her 57-page decision, found that Idaho’s ban on same-sex marriage, enacted as a constitutional amendment by voters in 2006, violates the couples’ constitutional rights to equal protection and due process, and found that there’s a “fundamental right” to marry under the U.S. Constitution. The judge struck down Idaho’s law both under the “heightened scrutiny” called for in a January 9th Circuit decision, and under the lesser “rational basis” standard for which the state argued.

“It’s an enormously important decision,” Ferguson said.

 

Court overturns Idaho’s same-sex marriage ban

U.S. District Judge Candy Dale has ruled Idaho’s ban on same-sex marriage unconstitutional, overturning it. The court’s order takes effect at 9 a.m. on May 16; you can read the judge’s 57-page decision here. “The court’s ruling is a victory not only for the courageous couples who brought this case, but for everyone who cares about freedom and fairness,” said Deborah Ferguson, attorney for the four same-sex couples who sued.

Idaho Gov. Butch Otter, who defended the ban, vowed to appeal. “In 2006, the people of Idaho exercised their fundamental right, reaffirming that marriage is the union of a man and a woman,” Otter said. “Today’s decision, while disappointing, is a small setback in a long-term battle that will end at the U.S. Supreme Court.  I am firmly committed to upholding the will of the people and defending our Constitution.”

Otter wants immediate stay on same-sex marriage ruling, if it goes against state

Idaho Gov. Butch Otter has filed a “contingent motion to stay pending appeal” in the same-sex marriage case in federal court, asking that if U.S. Magistrate Judge Candy Dale overturns Idaho’s ban on same-sex marriage, she immediately stay her ruling to allow for appeals, including to the U.S. Supreme Court. The governor contends that “chaos” and “confusion” would reign without a stay; you can read my full story here at spokesman.com.

“In the event of an adverse order, Gov. Otter will timely and duly appeal it to the Ninth Circuit Court of Appeals,” the governor’s motion says, and if the 9th Circuit agrees with the lower court, to the U.S. Supreme Court. The motion also raises the possibility that Otter would appeal to the U.S. Supreme Court even before the 9th Circuit had ruled.

Arguing for the stay, Otter’s attorney, Thomas Perry, wrote that without it, “There is likely to be a repetition in Idaho of the chaos, confusion, conflict, uncertainty and spawn of further litigation and administrative actions seen in Utah and, to a lesser extent, in Michigan.” Those are both states in which courts have struck down same-sex marriage bans as unconstitutional, prompting gay couples to begin marrying; and then the court orders have been stayed pending appeal, halting the marriages. Click below for more on this.

 

Idaho argues same-sex marriage ban benefits children

Lawyers for the state of Idaho argued today that federal courts in 10 other states were wrong when they overturned state bans on same-sex marriage as unconstitutional, and they urged a federal judge to uphold Idaho’s ban, saying it benefits the state’s children. “Idaho has sufficiently good reasons for maintaining the man-woman marriage institution,” Thomas Perry, attorney for Gov. Butch Otter, told the court. “When you look at benefits, what more compelling interest does the state of Idaho have than securing an ideal child-rearing environment for future generations?”

U.S. Magistrate Judge Candy Dale questioned that argument, noting repeatedly that when couples get marriage licenses in Idaho, “They don’t have to submit anything to prove that they intend to have children.”

Deborah Ferguson, attorney for four same-sex Idaho couples, several of whom are raising children, who sued to overturn the ban, argued, “The state can’t select a preferred group of Idaho families for special preference and recognition. … The legal interest is for all of Idaho’s families, and all of Idaho’s children.” You can read my full story here at spokesman.com.

The judge took the arguments under advisement, and said she’ll rule “in the relatively near future,” adding, “It will be soon.” Whichever way the decision comes down, the losing side is expected to appeal it.

The courtroom was full for today’s arguments, with close to 60 people in the audience. Among them was Madelynn Lee Taylor, a U.S. Navy veteran who’s made headlines after the state refused to allow her same-sex partner, Jean Mixner, to be buried with her at the Idaho State Veterans Cemetery. Shortly after the arguments ended, Taylor said, “I don’t know what to think right now, to tell you the truth. The kids that I’ve known that have grown up in gay families have turned out OK. … I just sent a package off to a young man who’s in Bosnia – his two mothers did a good job with him.”

Arguments set today in challenge of Idaho’s ban on same-sex marriage

Both sides in the case in which Idaho’s ban on same-sex marriage is being challenged in federal court have filed motions for summary judgment, and oral arguments are set for this morning in U.S. District Court in Idaho. Four same-sex Idaho couples, two of whom legally married in other states and two of whom unsuccessfully sought marriage licenses in Ada County, sued the state, saying the current ban violates their rights under the U.S. Constitution. Gov. Butch Otter, Ada County Clerk Chris Rich and Attorney General Lawrence Wasden are defending the state’s ban, which voters enacted in 2006. Also being challenged is the 1996 law that bans Idaho from recognizing legal same-sex marriages from other states.

Otter, in legal documents filed with the court, maintains that if Idaho had to recognize same-sex marriages, it would “abandon the man-woman definition of marriage” that “the State and its people believe best advances the interests of children.” The four couples who sued, all women, include several who are raising children. “Preventing same-sex couples from marrying,” they argue, “does nothing to advance these goals, but serves only to penalize and inflict gratuitous injury on same-sex couples and the children they are already raising.”

This is, of course, an extremely hot issue nationally. Since the U.S. Supreme Court last summer struck down the federal “Defense of Marriage Act,” or DOMA, saying it violated constitutional guarantees of equal protection and due process, federal courts in 10 states have ruled in favor of same-sex marriage. You can read the state’s brief here, and the plaintiffs’ brief here. After today’s arguments, federal Magistrate Judge Candy Dale likely will take the issue under advisement and rule in the coming weeks.

Idaho veterans’ cemetery won’t bury gay spouse

Here’s a news item from the Associated Press: BOISE, Idaho (AP) — A 74-year-old Boise woman wants to overturn a constitutional amendment that says Idaho doesn't recognize same-sex marriage after learning the Idaho State Veterans Cemetery won't allow her to be buried with her partner's ashes. Madelynn Taylor served in the U.S. Navy for six years. She says after her spouse Jean Mixner died in 2012 she went to the veteran's cemetery to make arrangements for them to be buried together, but cemetery rules require a valid marriage certificate. The state of Idaho does not recognize their 2008 marriage in California. Taylor keeps Mixner's ashes in her closet. She says if she dies without both being accepted into the state veteran's cemetery, someone will keep their ashes together until they are allowed to be buried in that cemetery. Click below for a full report.