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Eye On Boise

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

“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.


Dale heard oral arguments from both sides in the case on May 5, and promised a ruling soon. Deborah Ferguson, attorney for four lesbian couples who sued, argued that Idaho’s ban on same-sex marriage violates constitutional guarantees of equal protection and due process. Both Perry and Deputy Attorney General Scott Zanzig argued that Idaho’s voter-approved ban should stand because the state believes it’s better for children, and its voters should have the right to decide that. Several of the same-sex couples who sued are raising children, and said the ban harms them and their families. Perry, in his new filing, wrote, "The traditional definition of marriage exists to promote Idaho's child-centric marriage culture, rather than to oppress homosexuals."

The motion says that hundreds of same-sex couples wed in Utah between Dec. 23, 2013, when its ban was overturned, and Jan. 6, 2014, when the U.S. Supreme Court issued a stay, after both the district court there and the 10th Circuit Court of Appeals refused to stay the order. “The damage had already been done to the rule of law and the orderly resolution of the hugely important and consequential issue of the constitutionality of man-woman marriage,” Otter's motion says, resulting in “uncertainty, chaos, and confusion over the marital status of the same-sex couples who received marriage license in that state before the United States Supreme Court stepped in.”

Otter argues that the U.S. Supreme Court, by issuing the Utah stay, signaled that it wants to decide the matter itself, and “their intention that same-sex marriages not occur in contravention of state law during the months leading up to the Supreme Court’s authoritative ruling.” You can read the motion here. The court asked the lawyers for the couples to file their responses to Otter’s motion by June 5.

Betsy Z. Russell
Betsy Z. Russell joined The Spokesman-Review in 1991. She currently is a reporter in the Boise Bureau covering Idaho state government and politics, and other news from Idaho's state capital.

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