Both Gov. Butch Otter and Attorney General Lawrence Wasden have filed emergency motions with the 9th Circuit this morning asking the appeals court to withdraw its mandate, preventing its ruling on Idaho’s same-sex marriage ban from taking effect immediately. Neither of those motions is expected to be successful, however; county clerks around the state have been advised to begin issuing marriage licenses to same-sex couples when their courthouses open today. U.S. Magistrate Judge Candy Dale already issued an injunction blocking Idaho's ban from being enforced when she overturned it as unconstitutional in May; that decision was stayed by the 9th Circuit while it considered Idaho's appeal, but the appeals court ended the stay last night.
Otter’s motion says the court should halt its ruling to “avoid irreparable harm.” His lawyers wrote, “Absent the stay requested by Gov. Otter’s emergency motion, Idaho will experience the same chaos, confusion, conflict and uncertainty seen in Utah and Virginia, which resulted when those district court decisions were not stayed pending appeal.” Otter’s motion also argues the state should be able to determine its own marriage laws, and says, “Every single marriage performed between persons of the same sex as a result of the district court’s injunction—and in defiance of Idaho law—is thus an affront to the sovereignty of the State and its people.”
It says, “The stay is being sought so that Gov. Otter can seek further review of the panel’s decision, first by the en banc Court, and if that fails, by the Supreme Court.” On Monday, the Supreme Court rejected seven appeals from five states seeking to ban same-sex marriage, effectively legalizing gay marriage in 30 states and the District of Columbia. The 9th Circuit’s ruling against bans in both Idaho and Nevada came the next day.