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Same sex marriage (SSM) in Idaho

2014-MAY: Part 2:
District Court ruling on SSM (Continued).
Reactions to the ruling by Idaho officials.

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thumb up image2014-MAY-13: District Court ruling on SSM (Continued):

In her 57 page ruling, some of Judge Dale key thoughts were:

  • "Idaho's Marriage Laws withhold from them a profound and personal choice, one that most [adults] can take for granted."

  • "By doing so, 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."

  • The defendants offered no evidence that same-sex marriage would adversely affect opposite-sex marriages or the well-being of children. Without proof, the defendants' justifications echo the unsubstantiated fears that could not prop up the anti-miscegenation laws and rigid gender roles of days past."

  • "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 facts are clear and the law teaches that marriage is a fundamental right of all citizens, which neither tradition nor the majority can deny." 1

  • "The Plaintiffs are entitled to extraordinary remedies because of their extraordinary injuries." 2

  • "If Idaho's marriage laws are indeed designed to improve child welfare, they are both grossly over-inclusive – because they give protections and resources to couples who can't or won't procreate -- and dramatically under-inclusive -- because they deny protections and resources to children of homosexual parents." 3

  • "Idaho's Marriage Laws deny its gay and lesbian citizens the fundamental right to marry and relegate their families to a stigmatized, second-class status without sufficient reason for doing so. These laws do not withstand any applicable level of constitutional scrutiny." 4

  • She interpreted past Supreme Court decisions on the rights of same-sex couples as implying that:

"... not only ... [do] gay and lesbian individuals enjoy the same fundamental rights to make intimate personal choices as heterosexual individuals enjoy, but that judicial attempts to parse those rights out of existence will be met with a harsh rebuke." 4

She ruled that marriages will begin on Friday, MAY-16 at 9 AM. Keeping up with a new tradition among some judges, she did not issue a stay of her ruling. She apparently felt that:

  • Marriages by same-sex couples would not adversely affect existing or new opposite-sex marriages in any way.

  • Same-sex couples are guaranteed access to marriage as a civil right, due to the 14th Amendment, and

  • Establishing a stay would needlessly continue the unfairness that denial of access to marriage causes to same-sex couples.

The Plaintiffs' lawyer, Deborah Ferguson, said that:

"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." 5

She also said that the ruling adds families led by same-sex couples into the Idaho community. 2

Greg Botelho of CNN commented on Judge Dale's ruling:

" 'Idaho's marriage laws fail to advance the state's interest because they withhold legal, financial and social benefits from the very group they purportedly protect -- children,' Dale wrote."

Judge Dale also described the state's contention that gay marriage should be banned in the name of 'religious liberty' to be 'myopic.'

She said:

"No doubt many faiths around the world and in Idaho have longstanding traditions of man-woman marriage rooted in scripture. But not all religions share the view that opposite-sex marriage is a theological imperative." 6

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thumb down image 2014-MAY-14: Reactions to the District Court ruling by officials of the Idaho government:

Governor C.L. "Butch" Otter (R) filed a motion with Judge Dale asking her to stay her ruling. He requested an emergency hearing before noon on MAY-14 to discuss his motion. He asked asked that no marriages be allowed until "completion of all appeals." Judge Dale denied both requests.

Governor Otter said:

"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 ..."

"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." 4

Apparently overlooked by Governor Otter is his oath of office which requires him to defend both the state and federal Constitution. A long series of District Court judges and one County judge since mid-2013 have determined that a ban on same-sex marriages violates the due process and equal equal protection clauses of the 14th Amendment of the U.S. Constitution.

Attorney General Lawrence Wasden prepared a second request for a stay and also prepared an appeal to the U.S. 9th Circuit Court of Appeals.

Working through his lawyers, Otter filed an emergency motion with the 9th U.S. Circuit Court of Appeals, asking them to impose a stay to prevent same-sex couples from marrying in Idaho, starting on MAY-16. He also filed notice that he would appeal the District Court's ruling. That is a tough Court of Appeals to which he plans to appeal the case. It is generally regarded as the most liberal federal Court of Appeals in the U.S. Also, they have already decided in a California lawsuit -- Hollingsworth v. Perry -- that the state's Proposition 8 to ban SSMs was unconstitutional and that same-sex couples have a right to marry,

His lawyers wrote:

"Absent the stay requested by Governor Otter’s emergency motion, there will be a repetition in Idaho of the unseemly chaos, confusion, conflict, uncertainty, and spawn of further litigation and administrative actions seen in Utah and, to a lesser extent, in Michigan. ... Every marriage performed under that cloud of uncertainty and before final resolution by the United States Supreme Court would be an affront to the sovereignty of Idaho and to the democratically expressed will of the people of Idaho." 7

In Utah, some 1,300 same-sex couples were able to marry immediately after a ruling by a District Court in that state. This was terminated by a stay imposed by the U.S. Supreme Court. These marriages are currently recognized by the federal government but not by the state government. Their future status is uncertain. Each of the couples decided independently at the time that they would prefer to live with the uncertainty than remain unmarried.

The lawyer's brief continues:

"Idaho’s marriage laws satisfy … any other level of judicial scrutiny exactly because the vital man-woman marriage institution, unless suppressed by judicial decisions such as the Injunction and replaced with a genderless marriage regime, will continue to provide compellingly valuable social benefits. ..." 8

It is not clear to many observers how allowing same-sex couples to marry would "suppress" or impact in any way on opposite-sex marriages. This is a key finding of many District Court rulings.

It is also not clear to some what a "genderless marriage" is. Where both same-sex and opposite-sex couples can marry, all parents still have a gender. The vast majority of families will be headed by one male and one female, a few percent by two females, and a few percent by two males. A more appropriate phrase would be "one-gender marriage" and "two gender marriage," or as we use "same-sex marriage" and "opposite-sex marriage." We suspect that, over time, all of these terms and "natural marriage" will be replaced by simply "marriage."

The brief suggests a backup plan: If the Court of Appeals will not grant a stay that would be effective until the higher court issues its ruling, that they at least issue a stay:

"... for a reasonable period to allow the governor to seek in a fair and orderly way a stay from the Circuit Justice and/or full Supreme Court." 8

The "Circuit Justice" in this case is one of the nine members of the U.S. Supreme Court who is responsible for some requests from the 9th Circuit Court of Appeals, like a request for a stay. 5,7


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This topic continues in the next essay

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. District Court Judge Candy Wagahoff Dale, ruling, 2014-MAY-13. Download PDF file at:
  2. "Judge strikes down Idaho's same-sex marriage ban," Yahoo!, 2014-MAY-14, at:
  3. "US federal judge strikes down Idaho's same-sex marriage ban," The Guardian (UK), 2014-MAY-14, at:
  4. Sara Morrison, "Say Good-Bye To Idaho's Gay Marriage Ban," The Wire, 2014-MAY-13, at:
  5. Cynthia Sewell & Kristin Rodine, "Judge denies Otter's request; same-sex marriages in Idaho can start Friday," Idaho Statesman, 2014-MAY-14, at:
  6. Greg Botelho, "Federal judge declares Idaho's gay marriage ban unconstitutional," CNN Justice, 2014-MAY-14, at:
  7. Chris Geidner, "Idaho Governor Asks Federal Appeals Court To Stop Same-Sex Marriages From Starting Friday," BuzzFeed Politics, 2014-MAY-14, at:
  8. "Brian," "Idaho Governor Asks Federal Appeals Court To Stop Same-Sex Marriages From Starting Friday," The Daily Brian, 2012-MAY-16, at:

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Copyright © 2014 by Ontario Consultants on Religious Tolerance
Initial posting: 2014-MAY-15
Latest update: 2014-MAY-16
Author: B.A. Robinson

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