The legal arguments that Gov. Butch Otter submitted to the 9th Circuit today in his unsuccessful bid to continue a stay on same-sex marriage in Idaho included some unusual ones, including his contention that if the 9th Circuit were to lift the stay, it would “improperly treat the sovereign State of Idaho as an ordinary litigant, entitled to no more respect than a fly-by-night payday loan business or massage parlor.” Asked about that, Deborah Ferguson, attorney for the plaintiffs in Idaho’s same-sex marriage case, said, “It’s rare to see language like that. … I thought it was inappropriate. Truly, I thought it was bizarre.” She added, “I don’t think it added anything to their brief or their argument, and clearly, the court wasn’t swayed by it.”
Otter’s new legal arguments today also included a contention that allowing gay marriage to start in Idaho would dissuade people from voting in the upcoming election. “If laws passed by state legislatures can be overturned without the state having an opportunity for full appellate review before the law loses its force, why should ordinary citizens bother to vote for state office-holders?” Otter’s filing asked. Ferguson called that argument “completely without merit” and “a desperate sort of argument.”
Otter also contended today that if the 9th Circuit doesn’t prevent Idaho same-sex couples from getting legal marriage licenses, the case will essentially be over – once some have wed, they’ll have a “vested right” to having the state continue to recognize their marriages. “If the state ultimately prevails, the couples so married will undoubtedly claim – as they did in Utah – that they now have a ‘vested right’ to the marital status they achieved as a result of this court’s decision,” wrote Gene Schaerr, attorney for Otter. “And the only legal authority on this question indicates that those couples will be correct.”
Said Ferguson: “I think he’s right.” You can read my full, updated story online here.