Idaho Scrambling Over Same-Sex Marriage Ban Ruling

A federal judge's decision to allow same-sex marriages in Idaho starting Friday has attorneys for the state scrambling to appeal and gay rights advocates planning their next steps.

U.S. District Magistrate Judge Candy Dale overturned Idaho's ban on same-sex marriages Tuesday, and on Wednesday she refused to put pending marriages on hold while Gov. C.L. "Butch" Otter and Attorney General Lawrence Wasden appeal.

Otter and Wasden both asked the 9th U.S. Circuit Court of Appeals for an emergency stay while they fight the lower court's ruling.

"My job now is to ensure our state's voice is heard loud and clear on appeal, and that Idaho's right to self-determination is not further undermined," Otter said in a prepared statement.

Matrimonial law expert Seymour J. Reisman said the appellate court is likely to issue the stay, and the U.S. Supreme Court is almost certain to take up the matter.

But with several other states appealing rulings similar to the one handed down in Idaho, it's anyone's guess which state's case the high court will consider, said Reisman, a partner in the New York law firm Reisman Peirez Reisman and Capobianco LLP.

"You can't just have different states having different laws all over the place," he said. "Nobody knows where they can live, what they can do."

After the ruling, the Idaho Republican Party issued a statement reaffirming the organization's stance against same-sex marriage, and contending that the Tenth Amendment gives states the power to regulate and define marriage.

"The disintegration of marriage will lead to the disintegration of our society," Idaho GOP Chairman Barry Peterson said in a prepared statement.

Gay couples who choose to get Idaho marriage licenses Friday are still open to housing and employment discrimination, noted former state Sen. Nicole LeFavour, Idaho's first openly gay lawmaker and a leader of the "Add the Words" campaign.

"Add the Words" has become the catchphrase for amending Idaho's Human Rights Act to include protection from discrimination based on sexual orientation and gender identity. The amendment change has been proposed for the past several years but has never received a full committee hearing in the Legislature.

"On Friday, if people go out and get married and their announcement is in the paper, there is a chance they'll get fired or lose their housing," LeFavour said. "For some people, they can't take that risk, so they won't be able to take advantage of this new opportunity."

She said state lawmakers previously denied giving the campaign a hearing because they feared it would be a "slippery slope" toward allowing gay marriage in Idaho. Now that a federal judge has cleared that hurdle, legislators can no longer use that as an excuse, she said.

Senate President Pro Tem Brent Hill said it was too early to determine if Dale's ruling would lead to a hearing on amending the state's Human Rights Act.

"I just think there are a lot of things that will transpire between now and then that could certainly affect legislative attitudes," Hill said. "For some, maybe it means they dig their heels in deeper. For others, it wasn't about housing or employment. It was about same-sex marriage. Now that that's settled, it may be no big deal."

Reisman said the federal judge's decision to toss out Idaho's gay marriage ban could make it easier for people to bring a lawsuit over the Idaho Human Rights Act. A plaintiff could claim lawmakers' failure to include protections for gay or transgender people in the act is a violation of the 14th Amendment's equal protection clause, he said.

The nation's highest court last year found that the 1996 Defense of Marriage Act, which barred the federal government from recognizing same-sex marriage, deprived gay couples of due process.

Gay rights activists have since won multiple lower-court cases, and many legal observers say they expect the Supreme Court eventually will rule that gays can marry in every state. So far, gay marriage is legal in 17 states and the District of Columbia.

Dale's ruling ending the ban came in response to a lawsuit against the governor and Ada County Clerk Chris Rich brought by four same-sex couples. The judge said the ban unconstitutionally denies gay and lesbian couples their fundamental right to marry, and wrongly stigmatizes their families.

Also Wednesday, a federal judge ruled a national group cannot defend Oregon's same-sex marriage ban after the state's attorney general refused to do so. U.S. District Judge Michael McShane denied the motion to intervene from the National Organization for Marriage.

The decision paves the way for a ruling on the constitutionality of Oregon's same-sex marriage ban, which could come at any time.