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Idaho same-sex marriage ban struck down

LGBT Legal Cases Marriage equality Marriage Equality Trials

Updated to add link to opinion

UPDATE 1:50PM ET: The judge has just denied the stay. The order still won’t go into effect until Friday, but it will not be stayed. (More here.)

UPDATE 2 2:10PM ET: The order denying the stay is here. The court has also issued its formal judgment which is here.
————-
A federal magistrate judge struck down Idaho’s same-sex marriage ban yesterday in Latta v. Otter. The case was filed by the National Center for Lesbian Rights (NCLR) and a local law firm, representing four couples.

The magistrate judge found that Idaho’s ban violates the Equal Protection and Due Process Clauses of the federal Constitution:

After careful consideration, the Court finds Idaho’s Marriage Laws unconstitutional. This conclusion reaffirms a longstanding maxim underlying our system of government—a state’s broad authority to regulate matters of state concern does not include the power to violate an individual’s protected constitutional rights. See, e.g., id. at 2691 (“State laws defining and regulating marriage, of course, must respect the constitutional rights of persons. . . .”). 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.

The judge found that strict scrutiny should apply, because marriage is a fundamental right. However, the decision notes that the ban would fall under any level of scrutiny.

There’s no stay of the opinion, but there’s a delay: the order won’t take effect until 9:00AM MDT on Friday, May 16, 2014.

The state has filed a request for a stay in the district court. The request notes that, among other options under review, “Governor Otter may, after the appeal from the Adverse Order is lodged with the Ninth Circuit, timely and duly petition the United States Supreme Court for a writ of certiorari before judgment.” This would mean that the Supreme Court would get a petition to review the case even before the Ninth Circuit holds a hearing or issues a ruling. Cert-before-judgment is rarely granted, and a case wouldn’t be scheduled until after the new term opens in October, as arguments for this term are finished.

NCLR issued a press release after the decision, with comments from the couples:

The couples are Susan Latta and Traci Ehlers, and Lori and Sharene Watsen, who are legally married and asked Idaho to recognize their marriages, and Shelia Robertson and Andrea Altmayer, and Amber Beierle and Rachael Robertson, who seek to marry.

Said Ferguson: “Today’s decision affirms the fundamental principles of equality and fairness and the common humanity of gay and lesbian people. As the Court recognized, these families are part of Idaho’s community, and equal protection requires that they be given the same legal protections and respect as other families in this state. 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.”

Added Latta: “After living in Idaho for more than two decades, it means so much for a court to recognize our family and say that we must be treated equally. We love this state and want nothing more than to be treated as equal citizens who contribute to the community and help make Idaho an even better place for everyone who lives here. Today’s ruling means that we can finally have the same legal protections as other married couples and the security of knowing that our family is legally secure.”

Latta v. Otter would be appealed to the Ninth Circuit Court of Appeals, a circuit that recently decided that laws discriminating on the basis of sexual orientation warrant a heightened form of judicial scrutiny, and are no longer presumptively constitutional.

Thanks to Kathleen Perrin for these filings

For more information on Latta v. Otter from The Civil Rights Litigation Clearinghouse, click here.

126 Comments

  • 1. Eric Koszyk  |  May 14, 2014 at 8:09 am

    Does anyone know what time we can expect a ruling from Oregon?

    I know the campaign United For Marriage Oregon will send out a text when they have a ruling but I wonder if anyone has an idea of when the earliest a ruling might occur?

    For the text message text Love to 877877

  • 2. Scottie Thomaston  |  May 14, 2014 at 8:16 am

    I've been wondering that myself. I suppose it's possible the judge could rule from the bench on NOM's motion. But I'm not sure if that means he'd also issue his decision on the merits today. I hope he does, though.

  • 3. grod  |  May 14, 2014 at 8:33 am

    How matters are expected to proceed: http://www.oregonlive.com/mapes/index.ssf/2014/05

  • 4. Eric Koszyk  |  May 14, 2014 at 8:48 am

    Thanks. Is there an actual scheduled time when all parties are supposed to be in court? Or does his ruling just come out on some court website?

  • 5. Eric Koszyk  |  May 14, 2014 at 8:50 am

    I see that there are oral arguments. Just wonder what time they're scheduled.

  • 6. Eric Koszyk  |  May 14, 2014 at 8:50 am

    Thanks

  • 7. Chad  |  May 14, 2014 at 9:13 am

    the hearing is scheduled for 9am PST. so now :)

  • 8. Michael Grabow  |  May 14, 2014 at 9:40 am

    Jeff will be in Eugene for Wednesday's 9 a.m. hearing, so come back to oregonlive.com/politics for updates. Reporting is not allowed from the courtroom – or from a courtroom in Portland where people can watch a video feed – but we'll have stories shortly after the session ends, expected to be about 10:30 a.m.
    http://www.oregonlive.com/politics/index.ssf/2014

  • 9. Zack12  |  May 14, 2014 at 10:07 am

    This is another source you can follow updates on. https://twitter.com/search?f=realtime&q=%23OR

  • 10. DrHeimlich  |  May 14, 2014 at 10:21 am

    According to that source, NOM's motion to intervene has been DENIED.

  • 11. LK2014  |  May 14, 2014 at 10:24 am

    NOM was SHUT DOWN!
    http://www.oregonlive.com/politics/index.ssf/2014

  • 12. Zack12  |  May 14, 2014 at 10:27 am

    Motion denied and rightfully so.
    You don't file at the last hour and make false claims in your brief and expect to be allowed to intervene.
    It was a stalling tactic and nothing more.

  • 13. Michael Grabow  |  May 14, 2014 at 10:28 am

    "Judge Michael J. McShane's decision, made from the bench following an hour of oral arguments, may still be appealed by the group."

    On what grounds?

  • 14. SeattleRobin  |  May 14, 2014 at 10:33 am

    You beat me. Now I'm waiting for details on how the hearing went. I love a NOM smackdown.

  • 15. davep  |  May 14, 2014 at 10:35 am

    Expected, and glad to hear this!

  • 16. Zack12  |  May 14, 2014 at 10:38 am

    It doesn't appear he'll be ruling on the ban today.
    Kinda stinks, I wanted the entire West Coast to have full equality.

  • 17. Retired_Lawyer  |  May 14, 2014 at 10:40 am

    Excellent! Nothing but blue skies from now on.

  • 18. SeattleRobin  |  May 14, 2014 at 10:41 am

    Well that Dana who is writing on the Oregonlive page isn't on top of things. He/she mentions a possible stay on marriages pending appeal. But with NOM shot down there's no one to file an appeal.

  • 19. grod  |  May 14, 2014 at 10:41 am

    NOM out: http://www.chron.com/news/article/Judge-Group-can

  • 20. Seth from Maryland  |  May 14, 2014 at 10:44 am

    Federal judge denies governor's motion to put Idaho MarriageEquality ruling on hold

  • 21. sfbob  |  May 14, 2014 at 10:44 am

    I won't be surprised if NOM uses the fact that McShane is gay as a basis to appeal. As though that would be a winning move.

  • 22. Rik  |  May 14, 2014 at 10:48 am

    That doesn't surprise me given the ferocity of her ruling and the fact that she stipulated a start time. Great news, though! Hopefully it won't be stayed from above (but it probably will :( )

  • 23. LK2014  |  May 14, 2014 at 10:48 am

    Yes! NO STAY IN IDAHO! We'll see what happens next, but Idaho same-sex couples can start planning to marry on Friday!
    http://www.idahostatesman.com/2014/05/13/3183291/

  • 24. BillinNO  |  May 14, 2014 at 10:51 am

    Is it that NOM can appeal the judge's ruling? (KNEW I should have gone to law school :-/)

  • 25. Seth from Maryland  |  May 14, 2014 at 10:52 am

    i don't think it will , the writting is on the wall , it's getting even hard for courts to issue stays now

  • 26. StraightDave  |  May 14, 2014 at 10:53 am

    Cue Butch's hissy fit.
    He's promised an appeal to the 9th, which may mean SCOTUS will get a chance to embarrass themselves once again. He won't stop. What does he care? He's not spending his own time or his own money

  • 27. Michael Grabow  |  May 14, 2014 at 10:55 am

    The Order:
    http://media.spokesman.com/documents/2014/05/hear

  • 28. SeattleRobin  |  May 14, 2014 at 11:00 am

    NOM was trying to intervene in the Oregon case mainly with the idea that they wanted to appeal McShane's inevitable ruling. But their motion to intervene was denied. It's extremely unlikely that even if it would have been granted that they would have had standing to appeal anyway.

  • 29. StraightDave  |  May 14, 2014 at 11:03 am

    Well, that was an exciting half hour!!
    OR is now just counting down the days and hours – hopefully real soon.

    ID on a knife edge. It's either now or in 13 months. I don't see much in between.

  • 30. StraightDave  |  May 14, 2014 at 11:08 am

    Procedural question: If the 9th refuses a stay in ID and Kennedy also refuses, on his own as Circuit Justice, can the rest of SCOTUS jump in and demand a full vote?

  • 31. LK2014  |  May 14, 2014 at 11:11 am

    Interesting rationale in the Idaho denial of the stay – there is acknowledgement that the State is suffering "an irreparable injury" because of the injunction (against continuing discrimination). I'm not really sure what the "injury" is, but it is acknowledged nevertheless.

    But it is judged to be less serious than the irreparable injury suffered by same-sex couples if they are kept from marriage any longer.

    An interesting weighing of the interests on both sides that I don't recall seeing before – so there, cry-baby states that feel you are "wounded" by this victory for justice and equality!
    http://media.spokesman.com/documents/2014/05/hear

    "… while the State of Idaho has suffered an irreparable injury due to the Court’s injunction, see Coalition for Econ. Equity v. Wilson, 122 F.3d 718, 719 (9th Cir. 1997), the State’s continued enforcement of its laws against same-sex marriage irreparably harms Plaintiffs and other same-sex couples. See Williams v. Zbaraz, 442 U.S. 1309, 1314 (1979) (“[I]f the
    judgment is stayed, the constitutional right . . . will for many be meaningless.”) Given the
    ongoing potential for irreparable injury to both sides, the equities do not sharply favor the
    Governor. Nor does the public interest favor preserving a status quo that deprives
    individuals of their constitutional rights. The Court finds a stay pending appeal is not warranted."

  • 32. Steven  |  May 14, 2014 at 11:12 am

    It won't fly with the 9th Circuit.. They were smacked down by SCOTUS WITH STANDING issue with Prop 8 case,..

  • 33. davep  |  May 14, 2014 at 11:12 am

    Yeah. Because judges just love it when people make arguments implying that judges are unable to be professional and impartial. They always get a kick out of that : )

  • 34. Steven  |  May 14, 2014 at 11:13 am

    unless they want to get another smackdown

  • 35. Ragavendran  |  May 14, 2014 at 11:13 am

    What I learned about stay procedures from the Utah debacle is that if the Circuit Justice (Justice Kennedy here) refuses a stay, then the State can do one of two things:
    (1) keep asking other Justices of its choice, one by one, until either (a) one of the Justices grants the stay, or (b) five Justices decline the stay. During this process, any of the Justices could also ask the full Court to decide – this is what almost always happens, for efficiency reasons (and this is what Sotomayor did with Utah's request for a stay).
    (2) ask the entire Court for a stay

    If the Circuit Justice grants the stay, or if (1a) happens, the Plaintiffs can appeal that to the entire Court.

  • 36. DrHeimlich  |  May 14, 2014 at 11:15 am

    From what I recall when we were all waiting to hear on the Utah stay (in Justice Sotomayor's Circuit), if a stay is denied, the party seeking one can then go to a different Supreme Court Justice and ask for one.

    It seemed a bit silly to me at the time, because it seemed to be that so long as there was ONE Justice that would grant a stay, the lawyers could just play whack-a-mole with all nine until they found a sympathetic ear. Since we know in this case that they would find three or four (Scalia, Thomas, Alito, and quite probably Roberts), the stay seems inevitable.

    Which may be why Sotomayor just referred the Utah stay request to the full Court to begin with. And I'd be shocked if Kennedy didn't do the same if the situation came up. Pleasantly shocked, but shocked.

  • 37. Ragavendran  |  May 14, 2014 at 11:17 am

    I may be wrong, but I do believe that NOM would be entitled to appeal McShane's denial of their Motion to Intervene to the Ninth Circuit. (I'm pretty sure they'll try to, regardless.)

  • 38. StraightDave  |  May 14, 2014 at 11:17 am

    I think that acknowledgement makes her decision stronger, for having touched on both sides. It's a balancing act, but very heavily weighted toward one side. It removes the arguments that the state's interests are being ignored. Liberty holds up her scales and says, "Yep, here they are, no contest".

  • 39. sfbob  |  May 14, 2014 at 11:18 am

    Indeed dave. That always goes over really well. Of course the irony would be lost on NOM.

  • 40. Ragavendran  |  May 14, 2014 at 11:19 am

    I think what it means is that NOM would likely be entitled to appeal McShane's decision regarding its motion to intervene. Not the final order issued on the merits of the case. Regardless, I'm sure they'll try.

  • 41. sfbob  |  May 14, 2014 at 11:20 am

    Of course it won't. But just as with their attempt to intervene, I doubt their motivation would be to actually change the decision; it would simply be an attempt to slow down the inevitable, which really is all they have left at this point. At some point they're gonna end up in Orly Taitz territory.

  • 42. LK2014  |  May 14, 2014 at 11:21 am

    Absolutely. It is fascinating to read how each Judge's decision addresses different aspects of this fundamental constitutional issue. I find it uplifting that they take their roles so seriously, and that so many of them are knowledgeable about the rapidly growing body of decisions.

  • 43. sfbob  |  May 14, 2014 at 11:23 am

    They can't go to every last justice; after five turn them down they have no more options.

  • 44. davep  |  May 14, 2014 at 11:23 am

    I wasn't sure how this would go, and I'm happy to see this. Of course now there will be 48 hours of drama and suspense to see if anything new develops that will change this before Friday morning, and that uncertainty is just more injustice for the couples in Idaho waiting to marry. Here's hoping there will be lots of marriages happening Friday morning in Idaho!

  • 45. DrHeimlich  |  May 14, 2014 at 11:24 am

    That does make a bit more sense. Still, if they get to pick the Justice, you KNOW they'll go straight to Scalia and get the stay they're looking for.

  • 46. sfbob  |  May 14, 2014 at 11:26 am

    They can try. But they would surely be turned down due to lack of Article III standing. As you'll no doubt recall, when the folks behind Prop 8 appealed Judge Walker's ruling, the Ninth Circuit asked the CA Supreme Court to rule on whether state law granted ballot measure proponents the right to appeal an adverse ruling if the state refused to do so and were given the go-ahead. The problem for NOM here is that they were NOT directly a party to the Oregon ballot measure so they won't even get that far with the Ninth Circuit. They have nothing. At some point they are going to find themselves being punished for filing frivolous motions.

  • 47. sfbob  |  May 14, 2014 at 11:29 am

    I would presume that the "injury" inflcted on the state consists of having one of its laws overturned. If I understand correctly that actually does count. But the court has to balance the harm to the state versus the harm to the plaintiffs and the result is as you have quoted.

  • 48. StraightDave  |  May 14, 2014 at 11:30 am

    It sounds like the full court will be involved one way another. In that case, I would expect SCOTUS to follow it's own foolish precedent over the cliff. They're kind of locked into that now. As much as they hate having their hands tied, they've done it to themselves

  • 49. Ragavendran  |  May 14, 2014 at 11:31 am

    No, of course they won't have standing to appeal any final decision of McShane on the merits of the case, due to Hollingsworth. But they might still be entitled to appeal *just the order denying their motion to intervene at the district court* to the Ninth Circuit. This is a different matter, one that wasn't addressed in Hollingsworth, because there the district court allowed the Prop 8 backers to intervene. They'll be sure to cite that in their appeal to the Ninth Circuit: "Since Prop 8 backers were allowed to intervene in district court back then, NOM should be allowed to intervene in district court now too." But I doubt that will work.

  • 50. Bruno71  |  May 14, 2014 at 11:32 am

    But appealing the denial of this motion is different than appealing the upcoming ruling. They would have standing to appeal just this motion, is the presumption Ragavendran's making, and I would think that might be correct.

  • 51. SeattleRobin  |  May 14, 2014 at 11:37 am

    Yeah, I'm sure they have a right to appeal the denial of their motion. But like sfbob says, I can't imagine any scenario in which they get anywhere with that. Even without the Prop 8 standing precedent, it is all weak sauce with no named parties, etc.

  • 52. Bruno71  |  May 14, 2014 at 11:39 am

    They won't get anywhere with that, however, it could delay things more if the district judge wants to wait for that to play out before he releases his ruling.

  • 53. SeattleRobin  |  May 14, 2014 at 11:40 am

    Yeah, that.

  • 54. SeattleRobin  |  May 14, 2014 at 11:44 am

    I'd imagine that can't all happen before Friday morning though. Meaning, at least some couples will get married and at least have some federal benefits before a stay can be put in place.

  • 55. Bruno71  |  May 14, 2014 at 11:48 am

    That would be assuming the 9th doesn't step in by Friday morning. Unfortunately, I think they will, and a stay will be enforced. If the situation with Kitchen hadn't happened, I'd say otherwise, but at this point they know how SCOTUS wants them to handle this.

  • 56. Ragavendran  |  May 14, 2014 at 11:49 am

    I agree. At the very least, they would pull a Sixth and issue a temporary stay to allow time for proper briefing, but then grant the stay anyway at the end of it, regardless of the arguments in the brief.

  • 57. StraightDave  |  May 14, 2014 at 12:13 pm

    Correction: It's not Lady Liberty holding up the scales of justice, but "Lady Justice" – derived from the Greek and Roman Goddesses Themis and Iustitia. They tend to appear in some of the same neighborhoods, though :)

  • 58. nightshayde  |  May 14, 2014 at 12:35 pm

    I'm starting to think they enjoy their regular smackdowns & don't quite know how to function without them.

  • 59. sfbob  |  May 14, 2014 at 12:41 pm

    Yes, that makes sense. (responding both to you, Bruno, and to Ragavendran)).

  • 60. BillinNO  |  May 14, 2014 at 12:46 pm

    Quite Right.

  • 61. KarlS  |  May 14, 2014 at 12:52 pm

    It occurs to me that an otter is practically the same thing as a weasel…

  • 62. KarlS  |  May 14, 2014 at 12:56 pm

    Um, didn't you mean to say "…do NOT believe that…."? Or maybe "…NOM would NOT be"?

  • 63. Lee  |  May 14, 2014 at 1:04 pm

    Scalia's dissents in prior SCOTUS rulings are coming back to haunt him:

    Another Federal Judge Trolls Scalia While Striking Down Gay Marriage Ban: “In declaring Idaho's same-sex marriage ban unconstitutional on Tuesday, U.S. Magistrate Judge Candy Dale name-checked Scalia's dissent in the 2003 decision Lawrence v. Texas, which struck down an anti-sodomy law. Scalia at the time was trying to warn that the court's decision against an anti-sodomy law would call into question laws based on moral choices, like same-sex marriage (and, he wrote, bigamy, adult incest and prostitution). He wrote that "'preserving the traditional institution of marriage’ is just a kinder way of describing the State’s moral disapproval of same-sex couples." Another Federal Judge Trolls Scalia While Striking Down Gay Marriage Ban http://www.huffingtonpost.com/2014/05/13/scalia-g

  • 64. Ragavendran  |  May 14, 2014 at 1:06 pm

    No, as I explained above in response to sfbob, I do believe they will be entitled to appeal just the *order denying district court intervention* to the Ninth Circuit. (Obviously they have no standing to appeal any final yet-to-be-issued order on the merits of the case (due to the Hollingsworth precedent), even if they were a party to the case.) That said, I don't think they will prevail with this appeal at the 9th or SCOTUS.

  • 65. KarlS  |  May 14, 2014 at 1:06 pm

    Seems to me the fact they waited until the very last minute, almost, to try this stunt…violating a 'timely" standard requirement is more than enough to deny the motion…and they lied too, claiming to have "just learned about the issue recently" IIRC.

  • 66. StraightDave  |  May 14, 2014 at 1:14 pm

    That's Scalia defining animus for us. But we already knew that. I wish he'd read his own writing sometimes. And then he usually goes on to say, yep, let's do that.

    "… the State’s moral disapproval of same-sex couples."

  • 67. TKinSC  |  May 14, 2014 at 1:57 pm

    This is moving too fast for me.

  • 68. ebohlman  |  May 14, 2014 at 2:28 pm

    A rather colorful Canadian character posting to Usenet back in the late 90s summed it up thus: "Lady Justice must not be required to take off her blindfold and peer down the pants of couples applying for marriage licenses."

  • 69. Valquiria  |  May 14, 2014 at 2:31 pm

    Good. That makes it sweeter.

  • 70. Steve  |  May 14, 2014 at 2:31 pm

    Nobody gives a shit about you, darling.

  • 71. FYoung  |  May 14, 2014 at 2:39 pm

    So, if NOM has a right to appeal the denial of intervention to the 9th and then try for the SCOTUS, there is no way that the final Oregon decision on the merits can be published before the May 24ish deadline for resuming the Oregon initiative campaign to repeal its same-sex marriage ban this fall.

    The initiative campaign will need to resume and the question will need to go to the people in November 2014.

  • 72. Rik  |  May 14, 2014 at 2:47 pm

    wanna make out?

  • 73. sfbob  |  May 14, 2014 at 2:57 pm

    But otters have a good reputation while weasels do not. Otters–the four-legged variety at least–are considered cute and cuddly if not downright iconic. As a type of furry guy I'm an otter myself, or so I have been told. I hope I'm not a weasel. :)

  • 74. sfbob  |  May 14, 2014 at 3:03 pm

    I kind of like this quote from Good As You:

    "NOM is planning to appeal to the 9th Circuit. Which is kind of like saying the National Org. For Pigs plans to plead to the Federal Aviation Administration for flight clearance."

  • 75. Ragavendran  |  May 14, 2014 at 3:07 pm

    Not necessarily. Judge McShane could still issue a ruling any day now. If NOM succeeds at the 9th or SCOTUS (and I seriously doubt they will), then his order might be vacated and he would have to hold a new hearing, but I doubt the outcome would change.

  • 76. Kevin  |  May 14, 2014 at 3:22 pm

    Yes.

  • 77. FYoung  |  May 14, 2014 at 3:40 pm

    If the decision could be vacated later, then it is not really final. So, even if the decision was not stayed, wouldn't the initiative campaign have to resume and go for a vote in November 2014?

    I am wondering whether it might have been better to let NOM intervene. It would have delayed the process two or three weeks, but would have resulted in a decision that they clearly would have no right to appeal due to Hollingsworth, and no right to ask for a stay.

  • 78. Ragavendran  |  May 14, 2014 at 3:44 pm

    From this article, it looks like they are pushing back the May deadline to early July on whether to go ahead with the ballot measure:

    Officials from Oregon United for Marriage, which has collected signatures for a ballot measure that would overturn Oregon's ban, have previously said they would drop their initiative if the judge ruled by May 23. After Wednesday's hearing, officials backed off that date and said they may wait as late as July 3 — the deadline for submitting signatures to qualify for the November ballot — before deciding whether to go ahead with their measure.

  • 79. Margo Schulter  |  May 14, 2014 at 3:49 pm

    One extra bit of good news in Oregon is that Oregon United for Marriage might be able file the signatures for a ballot measure restoring marriage equality as late as July 3 to make the November ballot, if necessary. So allows a bit of time for NOM’s appeal on intervenor status to the Ninth Circuit. If, or very likely when, Judge McShane comes down with his ruling to overturn the marriage ban, no one will have Article III standing to appeal, so there would/will be no more stays and no need for that ballot initiative.

  • 80. KarlS  |  May 14, 2014 at 4:57 pm

    Ah…okay I misunderstood your post, I thought your use of "regardless" was implying "even though" instead of "in any case". I am becoming more linguistically anal as I age, apparently.

  • 81. KarlS  |  May 14, 2014 at 5:04 pm

    True enough. I've often been disturbed by the pejorative implication of the word 'snake' which is a big mistake…snakes are an important link in the ecosystem and can not possibly be 'bad' even if they occasionally exert deadly force in defense or necessary predation. Same for weasels…and I don't think you are one anyway. So there. haha

  • 82. KarlS  |  May 14, 2014 at 5:07 pm

    A snail with polio would be too fast for you, skippy.

  • 83. palerobber  |  May 14, 2014 at 5:31 pm

    i liked this part:

    "This “new right” argument attempts to narrowly parse a right that the Supreme
    Court has framed in remarkably broad terms. Loving was no more about the “right to
    interracial marriage” than Turner was about the “prisoner’s right to marry” or Zablocki
    was about the “dead-beat dad’s right to marry.” Even in cases with such vastly different
    facts, the Supreme Court has consistently upheld the right to marry, as opposed to a subright
    tied to the facts of the case."

  • 84. TKinSC  |  May 14, 2014 at 7:45 pm

    So let me get this straight:

    If a party loses a case, they have shown that they are unlikely to succeed on the merits, and therefore do not deserve a stay. Of course, the winning side doesn't need a stay. It is for this reason that courts never ever stay their own decisions, and that longstanding, unalterable rule will not be altered for the first time ever by this court.

    Does this about sum up the Dictator of Ida…er, honorable judge's reasoning?

  • 85. Ryan K.  |  May 14, 2014 at 7:48 pm

    Request for stay has been made to the 9th Circuit: http://www.scotusblog.com/2014/05/idaho-same-sex-

    And if they deny, request for a temporary stay while the Governor appeals to the Circuit Justice.

  • 86. TKinSC  |  May 14, 2014 at 7:53 pm

    Of course, even if they do get "married", these couples will still be shrouded in uncertainty until the Supreme Court makes a final ruling. But I guess the administrative burden of recognizing and then unwinding those "marriages" after the "marriage" ban is ultimately upheld (or a stay is issued before then) is just not as important as being able to say "Hey look, an Idaho marriage license with Adam and Steve's names on it!!"

  • 87. TKinSC  |  May 14, 2014 at 7:57 pm

    Of course, the "honorable" district court judge also knew how SCOTUS wanted her to handle it, and didn't really feel like going along.

  • 88. Swifty819  |  May 14, 2014 at 8:01 pm

    Poor poor TK, what will your pretty little head do when SCOTUS strikes down gay marriage bans as unconstitutional? Declare yourself God?

  • 89. TKinSC  |  May 14, 2014 at 8:02 pm

    I dunno, I think Kennedy would be more inclined to grant the stay on his own than Sotomayor. But I agree with you in that I hope he does grant it.

  • 90. StraightDave  |  May 14, 2014 at 8:23 pm

    The longer this drags on, the less rational these stays become. It just occurred to me that SCOTUS has a bit of a fig leaf with ID if they choose to use it. They could lean on the 9th's recent heightened scrutiny standard as improving the likelihood an appeal will fail, and then use that to justify not imposing a stay in this case. That gets them out of the predicament of feeling obligated to follow their Kitchen precedent all the way to hell and back, while not making it look like they changed their mind. (circumstances in the 9th were different)

    But they'll probably do something stupid, instead :(

  • 91. Margo Schulter  |  May 14, 2014 at 9:10 pm

    StraightDave, I concur that the Ninth Circuit’s SmithKline precedent for heightened scrutiny could make a difference in terms of the (un)likelihood of success, as opposed to Kitchen, where Price-Cornelison has been seen in the Tenth Circuit as applying rational-basis review to sexual orientation.

    That kind of approach to Idaho might be saying, “As the wording of our Kitchen stay might suggest, we didn’t want to have thousands and thousands of marriages on our hands in various states based on district court rulings before any of the circuits had a chance to weigh in post-Windsor.” Here, SmithKline may have effectively been the Ninth’s weighing-in; and even if en banc review is granted, it seems that the heightened scrutiny standard isn’t contested by any party.

  • 92. TKinSC  |  May 14, 2014 at 10:06 pm

    Were they to do that (and based on the Windsor and more recent Schuette decision they almost surely won't any time soon), then I might not expect lower courts to stay similar decisions. Until then, based on the clear balance of harms — and if that weren't enough, explicit SCOTUS action in an identical case — I do.

    And the fact that some courts aren't doing that is obliterating their credibility, and calling in question that of every court that rules likewise, even when they do issue a stay.

    On the bright side, activist judges such as Candy Dale deserve to have her credibility obliterated, and what better way to do that than for her to directly violate SCOTUS precedent?

    So yeah, on second thought, I hope they keep it up. They'll just end up with more deserved egg on their face when the inevitable stay comes (not to mention the highly likely final order upholding the bans).

  • 93. TKinSC  |  May 14, 2014 at 10:09 pm

    Or they'll just follow the precedent they already set because they currently intend to overturn the lower courts.

  • 94. TKinSC  |  May 14, 2014 at 10:18 pm

    Yes, but in every such case the marriage in question was between a man and a woman. When given the opportunity in Baker to extend the principle to same-sex "marriages", it didn't take them long to say "Nope, not gonna happen."

    Candy Dale is just one more "mailroom" judge who thinks she has a penthouse office on the Supreme Court. She'll eat her words soon enough.

  • 95. Margo Schulter  |  May 14, 2014 at 10:25 pm

    A general comment on Judge Doyle’s ruling: like some others, I give it the highest of ratings. It has its own poetry, maybe not so lofty as some of the other decisions, but very moving and “down home,” as it were. And the treatment of the Schuette case is absolutely brilliant (p. 54 of her opinion). She reads the case to say that voters can end a State’s policy of using racial classifications. “That principle has no application in a case, like this one, where voters imposed a purposefully discriminatory policy that undermines a fundamental right.” That’s worthy of quoting in lots of places.

  • 96. Margo Schulter  |  May 14, 2014 at 10:26 pm

    Sorry, that should be Judge Dale!

  • 97. TKinSC  |  May 14, 2014 at 10:26 pm

    Were they to do that (and based on the Windsor and more recent Schuette decision they almost surely won't any time soon), then I might not expect lower courts to stay similar decisions. Until then, based on the clear balance of harms — and if that weren't enough, explicit SCOTUS action in an identical case — I do.

    And the fact that some courts aren't doing that is obliterating their credibility, and calling in question that of every court that rules likewise, even when they do issue a stay.

    On the bright side, activist judges such as Candy Dale deserve to have her credibility obliterated, and what better way to do that than for her to directly violate SCOTUS precedent?

    So yeah, on second thought, I hope they keep it up. They'll just end up with more deserved egg on their face when the inevitable stay comes (not to mention the highly likely final order upholding the bans).

  • 98. TKinSC  |  May 14, 2014 at 10:26 pm

    Yes, but in every such case the marriage in question was between a man and a woman. When given the opportunity in Baker to extend the principle to same-sex "marriages", it didn't take them long to say "Nope, not gonna happen."

    Candy Dale is just one more "mailroom" judge who thinks she has a penthouse office on the Supreme Court. She'll eat her words soon enough.

  • 99. TKinSC  |  May 14, 2014 at 10:28 pm

    Reposting – Pay attention to me!

    Or they'll just follow the precedent they already set because they currently intend to overturn the lower courts.

  • 100. davep  |  May 14, 2014 at 10:31 pm

    Ah, there's that child-like wide-eyed wonder again.

    Keep reaching for the stars and dreaming big, TK.

  • 101. Biffy  |  May 14, 2014 at 10:38 pm

    He has special connections at the SC and knows what they're going to do even if it's the opposite of what every other court is doing. He's got the stuff.

  • 102. TKinSC  |  May 14, 2014 at 10:56 pm

    You're too slow for this.

  • 103. TKinSC  |  May 14, 2014 at 10:57 pm

    Can't wait to see when I'm going to eat all my words. All 400000 of them.

  • 104. TKinSC  |  May 14, 2014 at 10:58 pm

    No, on second thought, I got it gay.

  • 105. TKinSC  |  May 14, 2014 at 10:58 pm

    Looks like I have a twin!

  • 106. TKinSC  |  May 14, 2014 at 10:59 pm

    Or they'll just follow the precedent they already set because they currently intend to feed trolls like me.

  • 107. TKinSC  |  May 14, 2014 at 11:00 pm

    Reposting – don't pay attention to me!

    Or they'll just follow the precedent they already set because they currently intend to feed trolls like me.

  • 108. TKinSC  |  May 14, 2014 at 11:06 pm

    I'm getting dizzy.

  • 109. bythesea  |  May 14, 2014 at 11:14 pm

    Oh just fucking go the hell away.

  • 110. Swifty819  |  May 14, 2014 at 11:17 pm

    The Supreme Court imposing a stay DOES NOT mean they intend to overturn the lower courts. If they had wanted to do that, they could've granted cert from the district court and overturned it with a summary reversal, which they refused to do. SCOTUS staying a case simply means they think it will reach them. And, once a case reaches them, only 4 judges have to listen. To wit, they voted not to overturn a stay in Windsor, which they ended up affirming. Based on that alone, your argument that "stay means overturned" is flawed.

  • 111. Swifty819  |  May 14, 2014 at 11:18 pm

    Troll or not, feeding this one is mildly fun, seeing there are 3 of them

  • 112. TKinSC  |  May 14, 2014 at 11:22 pm

    http://www.usatoday.com/story/news/nation/2014/05

  • 113. TKinSC  |  May 14, 2014 at 11:57 pm

    I posted this to show how, by inserting religion into something that's clearly a civil matter, this will backfire and end up helping the marriage equality side. Their shrill voices are helping much more now than even 10 years ago. Especially now that pro-marriage equality religions are speaking up and the antis aren't monopolizing the voices of religion.

  • 114. Margo Schulter  |  May 15, 2014 at 3:06 am

    Just a general comment, since Baker v. Nelson comes up in these cases and threads, that it’s rather comical to think of state marriage bans today as not being “a substantial federal question.” Certainly the summary dismissal of Baker was precedent in 1972, when it was decided — but the 42 years since makes it almost like ancient history. As the Court stated in Hicks v. Miranda (1975), quoting an earlier case, “unless and until the Supreme Court should instruct otherwise, inferior federal courts had best adhere to the view that if the Court has branded a question as unsubstantial, it remains so except when doctrinal developments indicate otherwise,” see 422 U.S. 332, 344 (1975).

    Here, as Justice Ginsburg noted during the argument of the 2013 marriage cases, those doctrinal developments include both heightened scrutiny for gender discrimination, and the line of Romer, Lawrence — and, of course, now also Windsor.

    What very notable is that Justice Scalia in his Windsor dissent might have argued that at least Baker was still governing precedent, so that lower federal courts should not even consider entertaining any challenges to state marriage bans unless or until SCOTUS gave them permission in some future case — but no, he lamented that challenges to state bans were now well armed with the reasoning of Windsor. One can infer that Justice Scalia, who certainly wasn’t looking forward to nationwide marriage equality as a good thing from his point of view, evidently didn’t see the powerful case for it post-Windsor as failing “for want of a substantial federal question.”

  • 115. TKinSC  |  May 15, 2014 at 5:04 am

    Totally! Then again, on second thought, I understand now how a notion that was illegal in every single state (including BarneyFrankachusetts) as recently as 10 years ago, and still remains illegal in 34 states today (I count California, because their Constitution still says marriage is only between a man and a woman) couldn't possibly be required by a constutitional provision rarified 150 years ago. I mean that's just dumb, and I don't know what I was thinking. But I see the light now and am swayed. I suppose i should just stick to my Cafe Press hobby and leave the posting on complex legal issues to the big kids and grownups.

  • 116. Guest  |  May 15, 2014 at 7:15 am

    Nobody cares.

  • 117. Swifty819  |  May 15, 2014 at 7:29 am

    The reason she didn't stay the ruling is because in EVERY OTHER CIRCUIT, rational basis currently applies,because they've never evaluated anything gay after Windsor. However, the Ninth has already said that heightened scrutiny applies to anything gay and so the ban won't last. When SCOTUS issued the stay, half of their reasoning was essentially "Hold on, you can't be sure the tenth circuit will agree with you", which is why they stayed the ruling not until THEY heard the case, but until the CIRCUIT ruled. In Kitchen, once the Circuit court rules on the case, the stay is gone. This is because Kennedy in particular detests when someone is given something in the law, only to have it taken away. He also detests any form of discrimination, such as affirmative action, hence his ruling in Schuette. In there, he essentially said that voters have the right to force the state to end discrimination. Kennedy also CLEARLY views gays as a protected class (See Romer, Lawrence, and Windsor.), and based on that alone, Kennedy would not want to see something happen where "Look, the district court let 50k people get married. Oops, the appeals court struck it down. Now what happens to the 50k people who got married using the district court". It's just smoother to say "Nobody do anything unless you know what the appeals court will say"

  • 118. Swifty819  |  May 15, 2014 at 7:35 am

    By the way, the same is true of Arkansas. The Arkansas Supreme Court has already unanimously said that heightened scrutiny applies to laws involving gays when the Court ruled 7-0 that banning gay adoption is unconstitutional. And pretty much everyone, even the most conservative folks, thinks that if heightened scrutiny applies, marriage bans are gone.

  • 119. grod  |  May 15, 2014 at 8:10 am

    While the request for a stay to the 9th Circuit covers all the criteria, I was surprise by its assertion regarding the January 6 six line stay order issued by the US Supreme Court. With the descriptors social institution of marriage, genderless marriage regime I should have recognized the language of Monte N. Stewart. The same Monte Stewart, who as Counsel of Record for Utah, made the Dec 20 submission to the US Supreme Court.

  • 120. Margo Schulter  |  May 15, 2014 at 9:55 am

    Swifty819, I agree that heightened scrutiny under Ninth Circuit precedent is key here.

    It’s curious how the emergency motion for a stay pending appeal alleges that Judge Dale’s following of circuit law should be trumped by the supposed new constitutional maxim of “Gay means stay.”

    As for Baker v. Nelson, I’m not surprised that advocates of gender and sexual orientation discrimination in such a last ditch position would grasp for any possible precedent.

    However, unlike Betts v. Brady or Bowers v. Hardwick, this was a summary disposition, obviously issued at the time because the Court was required to decide the case and didn’t have the option of denying cert.

    The best term for what’s happened over the last 42 years is likely “erosion.”

  • 121. Margo Schulter  |  May 15, 2014 at 10:03 am

    A bit of minutia is that Washington v. Glucksburg (1997) (no fundamental right under Fourteenth Amendment to assisted suicide) is stated in the emergency motion for a stay as having been decided in 1992 (p. 9). As one who recently got wrong the name of California Attorney General Kamala Harris, a zealous and very effective advocate of marriage equality speedily implement in all 58 counties of our State, maybe I should be more attentive to my own mistakes.

  • 122. Equality On TrialIdaho sa&hellip  |  May 15, 2014 at 2:08 pm

    […] same-sex marriage ban, is now in the Ninth Circuit Court of Appeals. A federal magistrate judge struck down the ban this week and denied the state’s request for a stay. The ruling didn’t go into […]

  • 123. Rik  |  May 15, 2014 at 2:40 pm

    Oh I thought it stood for South Carolina. I was picturing a dumb but pretty country boy

  • 124. Rik  |  May 15, 2014 at 2:43 pm

    I'm really confused… are you schizophrenic? There's help out there for people with your problems, my friend. Don't be afraid to seek it.

  • 125. bayareajohn  |  May 15, 2014 at 9:23 pm

    I'm not sure if you are a jester or a thug. But delay costs money, family, and lives. You think delaying is fine because you already know it's all you have left. When I didn't act in time before the PROP 8 undid my right to marry my intended, I had to wait years to get the chance again. During which I lost many thousands of dollars in marriage benefits that my courts agreed were mine. If I had died in that interim, my evil family would have legally looted the home my partner (now husband) and I built over the years.

    Tell prisoners, slaves, girls in Nigeria, that they should just keep waiting.

    Now tell the KOCH cartel that they should wait for something that benefits them. Which one will TK and FAUX NEWS declare is tyranny?

  • 126. Equality On TrialNinth Ci&hellip  |  May 20, 2014 at 5:04 pm

    […] judge ruled that the ban is unconstitutional last week, and when the decision wasn’t stayed, the state asked the Ninth Circuit to halt […]

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