BOISE, Idaho (AP) — 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.
Both Otter and Wasden said Wednesday they
would ask the 9th U.S. Circuit Court of Appeals for an emergency stay
while they fight the lower court’s ruling.
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.
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.