Live Blog: Supreme Court Lifts Hold On Same-Sex Weddings In Idaho, 9th Wants To Hear From State

Oct 7, 2014

This post was updated at 9:16 p.m.

The 9th U.S. Circuit Court of Appeals has now given the state of Idaho until 1 p.m. MDT Monday to respond to this evening's motion from the plaintiffs in the case.  The plaintiffs have until 6 p.m. MDT Monday to reply to that response.

Plaintiffs have filed a motion to dissolve the stay pending appeal, issued by this court on May 20, 2014, of the district court’s judgment and injunction. Defendants shall file a response by noon PDT on Monday, October 13, 2014. Plaintiffs may file a reply by 5:00 p.m. PDT that same day. - 9th U.S. Circuit Court of Appeals

This post was updated at 8:45 p.m.

Attorneys representing the women suing Idaho over its ban on same-sex marriages have now asked the 9th U.S. Circuit Court of Appeals to allow gay couples to get married as soon as possible. The Supreme Court Friday afternoon denied the state of Idaho's request to stay Tuesday's decision from the appeals court that said Idaho's ban on gay marriage is unconstitutional. 

In the filing, available here, the plaintiffs try to convince the San Francisco court to dissolve the stay it issued in May, shortly after a federal magistrate in Boise struck down Idaho's ban. It's viewed as the last legal hurdle same-sex couples face before they're issued marriage licenses in Idaho. 

Several of the arguments attorneys make in the motion are similar to those the lawyers made to the Supreme Court Thursday afternoon.  

This post was updated at 6:22 p.m.

Gov. C.L. "Butch" Otter has issued a statement on today's U.S. Supreme Court action clearing the way for same-sex marriages to begin in Idaho.

“The Supreme Court’s order lifting Justice Kennedy’s stay effectively allows same-sex marriage in Idaho as soon as the 9th Circuit directs compliance with its decision. I disagree with the court’s conclusion, which negates the 2006 vote of the people of Idaho, is contrary to the values of most Idahoans, and undermines fundamental states’ rights.  But we are a nation of laws. Idaho now should proceed with civility and in an orderly manner to comply with any forthcoming order from the 9th Circuit.” - Gov. Otter

Before those unions can start, the 9th U.S. Circuit Court of Appeals must make its Tuesday ruling effective. It's not yet clear when the 9th Circuit will act.

This post was updated at 5:54 p.m.

The Latah County Clerk has now issued four same-sex marriage licenses on the advice of the deputy prosecuting attorney.

Susan Petersen says by the time her office closes in the next five minutes, she will have issued "five or six" licenses to same-sex couples. "I haven't really been keeping track," she says.

This post was updated at 5:16 p.m.

The Spokesman-Review's Betsy Russell reports one same-sex marriage license has been issued in Latah County.

The Latah County Clerk has issued a marriage license to two females, signaling the start of same-sex marriage in Idaho – even before a final, formalizing order from the 9th Circuit. Latah County Clerk Susan Petersen said on the advice of the Latah County prosecutor she issued the license about 3:45 p.m. The two women came to her office in Moscow about 2:30 p.m. to get a license and had to wait while officials determined if they were allowed to start issuing licenses to same-sex couples, said Petersen, a Republican. - Eye on Boise blog

"It's not what I would probably have done," Peterson tells KBSX. "But I am not an attorney and I don't have the legal expertise to read all of the legal documents and documentation. I have to rely on my prosecuting attorney."

Two same-sex couples have now been issued marriage licenses since Tuesday. The first was issued to a gay couple in Twin Falls County on Tuesday.

This post was updated at 4:28 p.m.

Machelle Migneault and her partner embraced in line to get a marriage license Oct. 10, 2014.
Credit Adam Cotterell / Boise State Public Radio

Dozens of people have gathered inside the Ada County Courthouse seeking marriage licenses after the U.S. Supreme Court said same-sex marriages can move forward in Idaho.

But before those unions can start, the 9th U.S. Circuit Court of Appeals must make its Tuesday ruling effective.

Machelle Migneault and her partner were first in line at the Ada County Courthouse this afternoon.

"I'm excited," Migneault says. "I hope it happens today but we've had the rug pulled out from us so many times. But I won't be surprised if it doesn't happen."

It's still not clear if marriage licenses will be available to same-sex couples Friday.  Many county courthouses close at 5 p.m. and won't re-open until Tuesday because of the Columbus Day holiday Monday.

However, if the 9th Circuit acts, Ada County Recorder Chris Rich tells KBSX he will issue licenses after 5 p.m. to couples already inside the courthouse.

This post was updated at 4:10 p.m.

Idaho's Attorney General Lawrence Wasden said in a response to the Supreme Court's action; "We've received and understand the order from the U.S. Supreme Court and Justice Kennedy. Now our attention turns to the 9th U.S. Circuit Court of Appeals. We'll wait and see how that court responds."

Wasden's office says they're communicating directly and often with counties and will continue to advise them on how to proceed.

This post was updated at 4:00 p.m.

Same-sex weddings cannot begin in Idaho until the 9th U.S. Circuit Court of Appeals takes one more action making effective its Tuesday ruling that upholds a lower court's decision striking down Idaho's same-sex marriage ban.

The head of Idaho's Association of Counties is asking county clerks to hold off on issuing same-sex marriage licenses.

Deborah Ferguson addressed the media Oct. 7, the day the 9th U.S. Circuit Court of Appeals upheld a lower court's ruling striking down Idaho's same-sex marriage ban.
Credit Frankie Barnhill / Boise State Public Radio

This post was updated at 3:33 p.m.

The Supreme Court says same-sex marriage can go ahead in Idaho.

The court issued an order Friday that appears to remove the last legal obstacle keeping gay and lesbian couples from getting married in the conservative state.

The federal appeals court in San Francisco on Tuesday declared gay marriage bans illegal in Idaho and Nevada.

Justice Anthony Kennedy temporarily blocked same-sex weddings in Idaho a day later after the state asked for a delay. Idaho officials said county clerks would be forced to issue marriage licenses to same-sex couples almost immediately without the high court's intervention.

Kennedy offered no explanation for his order, but indicated it would not be lasting. The court issued no explanation for its order Friday, either.

Read the order here.

This post was updated at 3:26 p.m.

The Associated Press is reporting the U.S. Supreme Court has lifted the hold on same-sex weddings in Idaho.

More details to come.

This post was updated Oct. 10 at 8:30 a.m.

All eyes are on the U.S. Supreme Court this morning waiting to see what action it'll take on the legal challenges over Idaho's same-sex marriage ban.

The state of Idaho has now filed a brief with the Supreme Court, again asking the justices to keep in place a stay that prevents gay couples from getting married in Idaho. 

The state's move completes the filing process. The Supreme Court may issue a decision on the stay sometime today.

You can read the state's latest brief, here.

This post was updated at 4:10 p.m.

Attorneys representing four lesbian couples who sued the state of Idaho last year over its 2006 voter-approved ban on same-sex marriage have asked the U.S. Supreme Court to deny a request for a stay on a lower court’s decision that said the ban is illegal.
 

The couples filed the response Thursday afternoon to meet a deadline set Wednesday by Supreme Court Justice Anthony Kennedy. He issued a temporary stay that prevented all Idaho couples but one from getting marriage licenses early Wednesday morning.

Kennedy asked attorneys representing the gay couples to address a request for a stay made Wednesday by attorneys representing Idaho Gov. C.L. “Butch” Otter and Ada County Recorder Chris Rich.

In Thursday’s 22-page response, the plaintiff's  attorneys made four main arguments for the court to deny the request. Attorneys argue the Supreme Court is not likely to review the Idaho case, considering the court’s Monday decision to turn back similar cases from other states. 

The couples’ attorneys say Idaho hasn't successfully differentiated their case from others the Supreme Court refuses to hear. They also refer to the fact that all decisions from U.S appeals courts on the issue have been unanimously in favor of same-sex couples.

The filing also says if the court reviews the Idaho case, the state is likely to lose. In this section of the response, the attorneys representing the plaintiffs attack the state’s argument that allowing gay marriage would hurt children in Idaho, a state that allows same-sex couples to adopt and raise children.

“Applicants…overlook the fact that same-sex couples will continue parenting children regardless of whether they are allowed to marry. Denying these families the right to define their relationships through marriage thus serves only to humiliate children now being raised by same-sex couples…”

The filing also says the Supreme Court should deny the stay request because the state and Ada County wouldn’t suffer irreparable harm if gay marriage is allowed to take place. It also adds that “numerous…same-sex couples in Idaho will face concrete, grievous, ongoing harm from a stay.”

How and when the nation’s high court reacts to the filing will be closely watched.  Some legal experts have said the court is most likely to address the response when justices gather in Washington Friday morning.

Read the entire response here.

This post was updated Oct. 9 at 3:30 p.m.

The attorneys representing the four lesbian couples who sued the state of Idaho over its ban on gay marriage have filed their formal opposition to a request for an emergency stay filed earlier this week with the U.S. Supreme Court by Gov. C.L. "Butch" Otter and Ada County Recorder Chris Rich.  The couples sent a 22 page document to the court around 3 p.m. Thursday.  They hope to convince the court to lift a temporary stay and allow gay marriages to take place in Idaho.

We'll have more details on the couples' response shortly.

This post was updated at 3:05 p.m.

Idaho's Attorney General Lawrence Wasden is praising U.S. Supreme Court Justice Anthony Kennedy for issuing a temporary stay blocking same-sex marriages from beginning in Idaho.

“I appreciate the fact that Associate Justice Kennedy has given the state of Idaho time to digest the decision of the appeals court and plot a clear, legal strategy forward,” Attorney General Wasden said in a press release. “I continue to take seriously my responsibility of defending the Idaho Constitution and the policy choices made by voters on the question of marriage.”

The attorney general's office is also in the process of filing a motion that will ask an 11-judge panel of the 9th U.S. Circuit Court of Appeals to weigh in.

Idaho requested an en banc hearing from the 9th Circuit back in June. It was denied.

Wasden and his legal staff will be working with Gov. Otter's staff to respond to any objections that are filed in response to the Supreme Court's temporary stay.

This post was updated at 11:25 a.m.

The Boise Democrat campaigning to unseat Idaho's two-term governor, Butch Otter, has released a statement supporting the efforts by the same-sex couples in Idaho to strike down the state's gay marriage ban.

A.J. Balukoff says as anticipated, this issue will be decided by the courts.

"This ruling recognizes that, in America, we do not have the right to impose our beliefs and practices on other people, and that discrimination is wrong. We must treat all people equally, with kindness and respect. I'm proud of the courage shown by these people who challenged a law that violates the United States Constitution." - A.J. Balukoff

This post was updated at 11:00 a.m.

It is still unclear when same-sex marriages will begin in Idaho. University of Idaho School of Law professor Shaakirrah Sanders says marriages could begin as soon as Friday, but adds, they may not begin until June.

“Justice Kennedy could get all the briefings on the stay and decide to deny the stay and marriages may begin as soon as Friday," Sanders says. "Or it could be that the State of Idaho files for a petition for review before the U.S. Supreme Court. The U.S. Supreme Court takes months to decide whether to grant that petition. And if they grant it, then it has to get calendared and all that. So it’s very unclear right now how long it could all take."

Don Moline and Clint Newlan were able to get a marriage license Wednesday before Justice Kennedy issued a temporary stay.
Credit Drew Nash / Times-News

This post was updated at 10:25 a.m.

Don Moline and Clint Newlan may be the only same-sex couple to have received a marriage license this morning before U.S. Supreme Court Justice Anthony Kennedy granted a temporary stay halting the 9th U.S. Circuit Court of Appeals decision that upheld a lower court ruling striking down Idaho's gay marriage ban.

A celebratory mood quickly turned sour as word spread that the Supreme Court blocked same-sex marriages from beginning in Idaho this morning.
Credit Frankie Barnhill / Boise State Public Radio

The Times-News reports Moline and Newlan have been waiting eight years to wed. The couple had been on a waiting list to get married.

"They showed up Wednesday morning wearing matching red T-shirts, light khaki shorts and black sandals and belts.

"When we're going to the store, we always buy matching clothes," said Moline.

Another couple was also waiting outside the clerk's office before the doors opened -- Ashley Owens and Brittany Dickerson. They have been engaged for about a year and planed to drive to Utah Friday to marry there, since the U.S. Supreme Court legalized gay marriage there Monday by declining to take up the state's appeal.

"We honestly thought we were going to get rejected," said Owens, as she chatted with Moline and Newlan in the hallway waiting for the doors to open.

While Moline and Newlan filled out their paperwork, Dickerson realized she had forgotten her Social Security card and went to get it. By the time she got back and the two went upstairs, word of the stay had reached the clerk's office." - Times-News, magicvalley.com

In Ada County, celebration quickly turned to disappointment as word spread that no same-sex marriage licenses would be issued.

One of Idaho's Add the Words leaders, the group trying to get LGBT protects added to Idaho's human rights law, was denied a marriage license at the Ada County Courthouse.

Mistie Tolman and Karen McMillin had a marriage celebration three weeks ago, but it wasn't legal. The couple had hoped to change that today.

"I know we’re going to get it – it will come," Tolman says. "It is crushing. To wake up and think that it’s the day that you get to have your love recognized and you get all the same rights and privileges as your heterosexual counterparts. It will give me another excuse to wear my wedding shoes another day. But I wish for all the people here – and us – that it would have been today.”

This post was updated at 8:41 a.m.

Gov. C.L. "Butch" Otter has issued a statement this morning on U.S. Supreme Court Justice Anthony Kennedy's temporary halt of same-sex marriages beginning in Idaho.

“I’m pleased that Justice Kennedy has given us the opportunity to make our case in a way that helps avoid the confusion some other states have faced. We also asked the 9th Circuit for the same relief, but I’m grateful that Justice Kennedy acted so promptly. I intend to be faithful to my oath of office and keep working to protect the Idaho Constitution and the mandate of Idaho voters in support of traditional marriage.” - Gov. Otter

This post was updated at 8:34 a.m.

According to a reporter in Twin Falls County, one couple was able to get a marriage license before the Supreme Court issued its temporary ruling blocking same-sex marriages.

This post was updated at 8:10 a.m.

Supreme Court Justice Anthony Kennedy has temporarily blocked an appeals court ruling that declared gay marriage legal in Idaho and Nevada.

The order came minutes after Idaho on Wednesday filed an emergency request for an immediate stay. The state's request said that without a stay, state and county officials would have been required to begin issuing marriage licenses to same-sex couples at 10 a.m. EDT.

Kennedy's order requested a response from the plaintiffs involved in Idaho's gay marriage lawsuit by the end of day Thursday.

The 9th U.S. Circuit Court of Appeals declared gay marriage legal in Idaho and Nevada on Tuesday, a day after the U.S. Supreme Court effectively legalized same-sex marriage in 30 other states.

You can read Idaho's emergency request for a stay, and Justice Kennedy's response here.

This post was updated Oct. 8 at 7:45 a.m.

Gov. C.L. "Butch" Otter has issued an emergency stay to stop same-sex marriages from beginning in counties across Idaho this morning. That's according to the Idaho Statesman.

Meanwhile, people have started gathering at the Ada County Courthouse hoping to get their own marriage licenses beginning at 8 a.m.

Mayor David Bieter's office has issued a press statement saying if same-sex marriage licenses become available this morning, two of the plaintiffs in Idaho's case to legalize gay marriage, Amber and Rachael Beierle, will be married this morning by Bieter in City Hall.

This post was updated at 7:30 p.m.

Idaho's Attorney General Lawrence Wasden has issued a statement in response to the 9th U.S. Circuit Court of Appeals five-word statement legalizing same-sex marriage.

"We are still reviewing the decisions and orders issued today by the 9th U.S. Circuit Court of Appeals," Attorney General Lawrence Wasden said. "It's still too early to know fully what the decision and orders mean for Idaho and how the state will proceed."

This post was updated at 6:40 p.m.

The 9th U.S. Circuit Court of Appeals has filed a five-word statement paving the way for same-sex marriages to begin in Idaho.

"The mandate shall issue forthwith."

As Betsy Russell reports, the statement means "there's no seven-day delay before Idaho's ban on same-sex marriage is overturned - the decision takes effect immediately, and same-sex couples can now legally marry in Idaho."

This post was updated at 4:52 p.m.

Content on page 91 of the 9th U.S. Circuit Court of Appeals is why Idaho leaders say gay marriages cannot yet begin.

Here's reporting from Spokesman-Review reporter Betsy Russell:

On Page 91 of the ruling, in the “Information Regarding Judgment and Post-Judgment Proceedings” that follows the ruling itself, the court notes: “The mandate will issue 7 days after the expiration of the time for filing a petition for rehearing or 7 days from the denial of a petition for rehearing, unless the Court directs otherwise.”

“The net effect is that we’ve got 7 days,” said Jon Hanian, Otter’s press secretary. - Betsy Russell

This post was updated at 4:37 p.m.

Here is Gov. C.L. "Butch" Otter's statement on today's 9th U.S. Circuit Court of Appeals decision upholding a lower court’s ruling striking down the state’s gay marriage ban.

“Today’s decision by the 9th Circuit is disappointing, but not unexpected. I will carefully evaluate the opinion, along with yesterday’s surprising decision by the U.S. Supreme Court, and talk with legislative leaders and the Attorney General before determining our path forward. The stay on same-sex marriage in Idaho remains in effect until we are directed otherwise by the 9th Circuit.”  - Gov. Butch Otter

This post was updated at 4:30 p.m.

While Boise State Public Radio has not received an official statement from Gov. C.L. "Butch" Otter on today's 9th U.S. Circuit Court of Appeals decision upholding a lower court’s ruling that strikes down the state’s gay marriage ban, a Times-News reporter has tweeted this:

Ada County still doesn't know if it will be issuing marriage licenses to same-sex couples today or first thing tomorrow, but the Chief Deputy Clerk Phil McGrane says "We are now prepared for whatever comes." McGrane anticipates there will be a "surge" first thing tomorrow morning, but hasn't been told whether same-sex couples can get marriage licenses. 

Amber Beierle and Rachael Beierle are two of the plaintiffs who sued Idaho over its gay marriage ban. The two celebrated at the federal courthouse in Boise this afternoon.
Credit Frankie Barnhill / Boise State Public Radio

This post was updated at 4:05 p.m.

A press conference with the lawyer representing four Idaho couples who sued the state over its gay marriage ban, and some of those plaintiffs, just wrapped up in front of the federal courthouse in Boise.

"There were a lot of hugs and high-fives even,” reporter Frankie Barnhill says. "One particular plaintiff, Amber Beierle, she started getting tearful as she started describing her feelings today."

It's not yet clear when same-sex marriages will begin in Idaho now that the 9th U.S. Circuit Court of Appeals has upheld a lower court’s ruling striking down the state’s gay marriage ban.

As NPR's Two-Way blog reports, the 9th Circuit is now one of three other appellate courts striking down gay marriage bans across the country. 

"We hold that the Idaho and Nevada laws at issue violate the Equal Protection Clause of the Fourteenth Amendment," Judge Stephen Reinhardt wrote for the court.

In his decision, Reinhardt arrives at his conclusion in much the same way other courts had. He drew a line from Supreme Court decisions in Romer v. Evans, which struck down a Colorado constitutional amendment that denied homosexuals equal protection, to Lawrence v. Texas, which invalidated anti-sodomy laws, to the court's decision in Windsor, which invalidated the federal Defense of Marriage Act.

Reinhardt concludes:

"Idaho and Nevada's same-sex marriage proscriptions are sex based, and these bans do serve to preserve 'invidious, archaic, and overbroad stereotypes' concerning gender roles. The bans therefore must fail as impermissible gender discrimination." - NPR Two-Way Blog

This post was updated at 3:50 p.m.

Idaho's attorney general will not be available for interviews today after the 9th U.S. Circuit Court of Appeals upheld a lower court’s ruling striking down the state’s gay marriage ban.

“We are reviewing the decision by the court and assessing all of Idaho’s legal options in this case,” Attorney General Lawrence Wasden said in a written statement.

Wasden's spokesman Todd Dvorak also added "It is also our belief the stay issued by the 9th U.S. Circuit Court of Appeals remains in place."

This post was updated at 3:32 p.m.

The attorney representing the four Idaho couples who sued to overturn Idaho's same-sex marriage ban is scheduled to answer reporter questions outside the federal courthouse in Boise this afternoon.

Some of Deborah Ferguson's clients are expected to join her. The group gathered at the same location in May when a federal magistrate in Boise declared Idaho's ban on gay marriage illegal.

Gov. C.L. "Butch" Otter and Attorney General Lawrence Wasden have yet to formally react to the news. They were the primary defenders of Idaho's ban. They're likely to issue statements. We'll post their reactions here once they're issued.

This post was updated at 3:25 p.m.

The Associated Press' Rebecca Boone reports Gov. C.L. "Butch" Otter isn't available for comment on the 9th U.S. Circuit Court of Appeals ruling striking down Idaho's same-sex marriage ban.

This photos is from a May 16 rally in Boise the week a district court judge first struck down Idaho's gay marriage ban.
Credit Courtesy Idaho Statesman

This post was updated at 3:11 p.m.

Idaho’s most populated county doesn’t yet know if it can begin issuing same-sex marriage licenses after the 9th U.S. Circuit Court of Appeals upheld a lower court’s ruling striking down the state’s gay marriage ban.

Less than an hour after the ruling, Ada County had already gotten about dozen calls from people asking for same-sex marriage licenses.

Ada County doesn’t anticipate they’ll be issuing licenses today, however, Ada County is still in talks with the state attorney general’s office about what will happen next. 

This post was created at 2:24 p.m. Oct. 7, 2014

A federal appeals court has struck down gay marriage bans in Idaho and Nevada.

The 9th U.S. Circuit Court of Appeals in San Francisco made the ruling Tuesday. It did not decide on a similar case in Hawaii, which legalized gay marriage in December.

State and federal court judges have been striking down bans at a rapid rate since a landmark U.S. Supreme Court ruling last year.

The 9th Circuit ruling comes a day after the Supreme Court effectively legalized gay marriage in 11 more states, for a total of 30, when it rejected a set of appeals.

Here is the ruling from the 9th Circuit Court: