Judge denies Otter's request; same-sex marriages in Idaho can start Friday

csewell@idahostatesman.comMay 13, 2014 

— U.S. Magistrate Judge Candy W. Dale has denied Gov. Butch Otter's motion for a stay on her decision overturning Idaho's ban on same-sex marriages.

After Dale's ruling on Tuesday, Otter requested that an emergency hearing before Judge Dale take place before noon Wednesday on his request for a stay. Otter asked that no marriages be permitted until "completion of all appeals."

Dale denied both of Otter's requests.

“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,” said Otter.

Otter said today he will file motions for an emergency hearing and a stay with the 9th Circuit Court.

Attorney General Lawrence Wasden is preparing his own request for a stay, which should be filed today. Wasden is also preparing to file an appeal with the 9th Circuit Court of Appeals.

Gay couples could flood courthouses Friday morning, seeking to exercise a newly declared right to marry in Idaho.

A Tuesday evening ruling by U.S. Magistrate Judge Candy Dale striking down Idaho's 2006 constitutional amendment prohibiting same-sex marriages will take effect at 9 a.m. Friday.

Can anything change those plans?

The courts. Even before Dale ruled, Gov. Butch Otter filed a pre-emptive motion asking the federal court for an immediate stay in case the state's ban was overturned. Otter asked that no marriages be permitted until "completion of all appeals." His motion is pending; it's not clear when the court will take it up.

READ Otter's motion here

Why did Otter file the motion?

He pointed out that Utah had an "unmitigated disaster" after its ban was repealed Dec. 20 and before marriages were halted Jan. 6, pending that state's appeal: "Utah, its administrative agencies, its same-sex couples and its citizens generally have been plunged into uncertainty, chaos and confusion over the marital status of the same-sex-couples who received marriage licenses in that state before the United States Supreme Court stepped in."

What other legal action is taking place?

State Attorney General Lawrence Wasden said he would file his own request for a stay Wednesday.

Otter said he plans to appeal to the 9th Circuit Court of Appeals, and if the state loses there, to the U.S Supreme Court.

"In 2006, the people of Idaho exercised their fundamental right, reaffirming that marriage is the union of a man and a woman. 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."

Why did Dale rule Idaho's ban unconstitutional?

"This case asks a basic and enduring question about the essence of American government: Whether the will of the majority, based as it often is on sincere beliefs and democratic consensus, may trump the rights of a minority," the judge wrote in a 57-page decision.

"... 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," Dale wrote.

READ Dale's complete ruling here

Who brought the lawsuit?

Four lesbian couples challenged the ban as unconstitutional in federal court. Susan Latta and Traci Ehlers, and Lori and Sharene Watsen, asked Idaho to recognize their marriages. The other two couples, Shelia Robertson and Andrea Altmayer, and Amber Beierle and Rachael Robertson, seek to marry.

Latta and Ehlers married in 2008 in California, and the Watsens married in 2011 in New York. Both couples have children and say Idaho wrongly treats Ehlers as a legal stranger to her grandchildren and requires Lori Watsen to obtain a new power of attorney every six months so she can have legal authority to consent to medical treatment for her son.

How did the plaintiffs react?

"After living in Idaho for more than two decades, it means so much for a court to recognize our family and say that we must be treated equally," Latta said in a news release. "We love this state and want nothing more than to be treated as equal citizens who contribute to the community and help make Idaho an even better place for everyone who lives here. Today's ruling means that we can finally have the same legal protections as other married couples and (know) that our family is legally secure."

Boise attorney Deborah Ferguson, who represents the couples, said: "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."

Does Dale's ruling affect Idaho couples already married in other states?

Yes. Her ruling requires the state to recognize those same-sex marriages.

What will county clerks do Friday?

Ada County Clerk Chris Rich said that unless the court grants a stay or something else changes, his office will issue marriage licenses to same-sex couples starting Friday morning. "I will the follow the judge's directive," he said.

Do couples have to wait to get married after getting their Idaho license?

No. No appointment is necessary and there is no waiting period. Blood tests are not required.

What are the requirements for getting a wedding license?

Licenses are $30 (cash only). Both parties must appear together and provide Social Security numbers. Each applicant must provide proof of identity and age; applicants 16 or 17 years of age must be accompanied by a parent or guardian.

Where else have courts struck down gay marriage bans?

Dale's decision is the 12th since last summer's U.S. Supreme Court decision invalidating the federal Defense of Marriage Act. Others were in Utah, Ohio, Oklahoma, Kentucky, Illinois, Indiana, Michigan, Tennessee, Texas, Virginia and Arkansas.

The AP contributed.

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