The state has filed its responses with the 9th Circuit Court of Appeal on the stay in the same-sex marriage case, and Attorney General Lawrence Wasden has dropped his opposition to the stay – but Gov. Butch Otter has not. You can read my full story here at spokesman.com. Wasden, in his five-page filing, said he and his clients, Ada County Clerk Christopher Rich and the state of Idaho, “do not oppose” the motion to lift the stay. Wasden’s filing says he and his clients have concluded, “given the actions taken by the Supreme Court … that they cannot satisfy the stringent standards governing issuance of stays.” He notes, however, that that “should not be interpreted as a concession to the correctness of this court’s Oct. 7 decision.” Wasden’s filing leaves open the possibility of further appeals in the case, but concedes that same-sex marriages can legally start in Idaho now under the 9th Circuit's ruling.
Otter’s filing, by private attorney Gene Schaerr in Washington, D.C., takes umbrage at the idea that the stay would be lifted before “reasonable appellate options have been exhausted,” saying, “Granting that motion 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.”
It repeats the arguments made to the U.S. Supreme Court on Friday attempting unsuccessfully to get that court to continue to block gay marriage in Idaho: That Idaho is likely to succeed in appealing the case either at the 9th Circuit or the Supreme Court; that Idaho’s case is different because it involves a heightened standard of review adopted by the 9th Circuit; that allowing same-sex marriage is bad for children; and that it violates the state’s sovereignty, because Idaho voters approved a constitutional amendment banning same-sex marriage in 2006.
It also adds a new argument: 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 officer-holders?” Otter’s filing asks.
There’s also another new argument posed: That if the stay is lifted and same-sex couples are issued marriage licenses, they’ll claim a “vested right to the marital status they achieved as a result of this court’s decision and its vacatur of the current stay. And the only legal authority on this question indicates that those couples will be correct.”