Idaho’s first same-sex marriages are expected to begin Friday morning after a federal judge denied Gov. C.L. "Butch" Otter's request to hold off on the unions while the state works through its appeal process.
In a historic ruling Tuesday, U.S. Magistrate Candy Dale said that Idaho’s gay marriage ban is unconstitutional and scheduled that decision to go into effect Friday. Wednesday, Dale denied a request from Gov. Otter's lawyers to stay the order. Now, Idaho’s Attorney General Lawrence Wasden and Gov. Otter are asking the 9th Circuit Court of Appeals to issue a stay, which would prevent same-sex marriages from taking place this week.
“If the 9th Circuit Court of Appeals denies our request for a stay, we will be making a motion before the United States Supreme Court for a stay pending appeal,” Wasden says.
He says it’s his duty as attorney general to fight the ruling as far as he can because Idaho voters approved a constitutional amendment defining marriage as between one man and one woman, banning gay marriage, in 2006.
University of Idaho law professor Shaakirrah Sanders says it’s unclear if the 9th Circuit Court will issue a stay. She says when Utah was in this same situation a few months ago, the 10th Circuit Court denied a stay but the Supreme Court granted it. Sanders says that Supreme Court decision could be very persuasive to the judges on the 9th Circuit.
“However, the 9th Circuit is one of the few circuits that have ruled that sexual orientation is a protected status,” Sanders says. “So that may be enough for the 9th Circuit judges to say they have to rule that the marriage ban is unconstitutional.”
If the 9th Circuit does deny Idaho's request for the stay, the Supreme Court could potentially act fast enough to issue one before Friday. But Idaho could also see a repeat of what happened in Utah. Several couples were married before the Supreme Court stepped in. Their legal status is now unclear while the 10th Circuit Court considers appeals.
Idaho’s Republican Party chairman Barry Peterson issued a statement Wednesday saying U.S. Magistrate Dale's decision striking down Idaho's same-sex marriage ban was wrong.
"Traditional marriage between a man and a woman is the foundation of society,” Peterson writes. “The disintegration of marriage will lead to the disintegration of our society."
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