IDAHO: Plaintiffs Oppose State's Demand That SCOTUS Hear Marriage Appeal

The National Center for Lesbian Rights today filed a motion which opposes Idaho Gov. Butch Otter's petition that SCOTUS hear an appeal of his state's same-sex marriage ruling. Equality Case Files has the motion:

The Court has already granted four petitions for writs of certiorari to decide the questions presented in this case. There is no cause to add yet more petitions, especially ones with vehicle problems. Nor should the Court hold these certiorari petitions pending its decision in the marriage cases from the Sixth Circuit. The Court has previously denied petitions for writs of certiorari by state officials seeking to block same-sex couples from marrying and to withhold recognition of such couples’ lawful marriages performed in other States. The Court should do the same here, notwithstanding the pendency of other marriage cases. Two of the respondent-couples have already married (as have many other residents of Idaho) in reliance on the injunction issued by the district court in this case, and their marriages should no longer be subject to the uncertainty created by ongoing litigation. The petitions should be denied.

The NCLR notes that the Ninth Circuit Court has already twice slapped Otter down.

IDAHO: Ninth Circuit Court Denies Gov. Butch Otter's Demand For En Banc Review

After referring the issue to the full roster of nonrecused judges, the Ninth Circuit Court has denied Idaho Gov. Butch Otter's demand for an en banc rehearing of his same-sex marriage appeal. The National Center For Lesbian Rights reacts:

“The Ninth Circuit correctly recognized that there is no need to reconsider the panel’s decision that Idaho’s marriage ban violates basic constitutional guarantees of equal protection. The Ninth Circuit’s decision striking down the Idaho marriage ban is consistent with the rulings of three other federal appeals courts, which have rightly concluded that our Constitution cannot tolerate the profound harm that denying same-sex couples the freedom to marry inflicts those couples and their children.”

Three judges dissented from the majority. The dissenting opinion, which goes on and on for many pages, cites the 1970 Baker V Nelson ruling.

IDAHO: Governor & AG Ask SCOTUS To Stop All Those Icky Same-Sex Marriages

Via the Associated Press:

Idaho's governor and attorney general have filed separate petitions to the U.S. Supreme Court, fighting against gay marriage and arguing that the state's case has national consequences. Same-sex marriage has been legal in Idaho since an October ruling by the 9th U.S. Circuit Court of Appeals, which has struck down bans across the West. Attorney General Lawrence Wasden's filing Friday states that the issue is a matter of a state's right to define marriage without the federal government's involvement. "This case presents the Court with the opportunity to resolve a divisive split on a question of nationwide importance: Whether the United States Constitution now prohibits states from maintaining the traditional definition of civil marriage, i.e., between one man and one woman," Wasden said in the petition.

Last month the state was ordered to pay $400K to the lawyers for the plaintiffs who overturned Idaho's ban. (Tipped by JMG reader Rob)

IDAHO: State Ordered To Pay $400K To Lawyers For Marriage Equality Plantiffs

Via the Idaho Statesman:

Idaho must pay more than $400,000 to the team of lawyers who successfully fought to overturn the state's ban on gay marriage, a federal judge ruled. In her decision, U.S. Magistrate Judge Candy Dale awarded an amount that is about 10 percent less than what the six lawyers requested. "Simply put, the case was neither easy nor ordinary," Dale wrote. "It is therefore not surprising that plaintiffs employed a team of experienced attorneys to divvy up the many legal tasks." While Gov. Butch Otter and his legal team didn't dispute that the state should pay the lawyers' fees, they did argue that the lawyers took too much time communicating with one another and charged too much in hourly fees. State lawyers argued the amount, therefore, should be cut in half to $204,049. Dale disagreed, saying that the complexity of the case warranted frequent communication and extra time to prepare for court appearances.

The $400K judgment only covers work done through May. As we know, Gov. Butch Otter (seriously) has since given the plaintiffs' lawyers a lot more nonsense to respond to. (Tipped by JMG reader Alex)

IDAHO: Gov. Butch Otter Asks SCOTUS To Hear Same-Sex Marriage Appeal

Idaho Gov. Butch Otter today filed an amicus brief with the Supreme Court in which he demands that they hear the appeal from his state over any others.

If this Court is prepared to decide the constitutionality of state man-woman marriage laws - as amicus believes it should - it is important that the Court have before it at least one case in which state officials will vigorously defend those laws on the merits. Unless state representatives in one case are mounting such a defense — including an explanation of why the man-woman definition of marriage satisfies any form of heightened scrutiny — neither the Court nor the public can be assured that the ultimate decision will be the product of a fair contest between opponents who made the strongest possible arguments on both sides.

Although the officials in the cases now before the Court have been well represented, none has demonstrated a willingness to mount such a defense. Perhaps they believe this Court will inevitably reject all the arguments for heightened scrutiny, thus making a defense under such a standard superfluous. Or perhaps some fear (incorrectly) that a vigorous defense will impugn the parenting skills of same-sex couples and thus be offensive to gays and lesbians. Whatever the reason, these officials’ presentations have left an important viewpoint unrepresented, and it is one that needs to be vigorously presented in this Court.

That is a main reason Governor Otter respectfully suggests that the Court ensure that the Idaho case Otter v. Latta, - in which the Governor is a named party - is among the cases the Court uses as “vehicles” for deciding the constitutionality of the man-woman definition. Unlike the laws now before the Court, Idaho’s definition has been vigorously defended, in part on the ground that it satisfies the heightened scrutiny that the Ninth Circuit held applies to such laws. And unlike those cases, the Ninth Circuit in Latta purported to address Idaho’s heightened-scrutiny defense. Moreover, Latta will likely be before the Court in a very few days: Unless the Ninth Circuit quickly grants the pending petition for rehearing en banc, amicus intends to seek this Court’s review by January 5, 2015.

Read the full brief at Equality Case Files.

IDAHO: Gov. Butch Otter Keeps Trying

Via Boise's NBC affiliate:

Gov. C.L. "Butch" Otter wants to file additional arguments in his attempt to have an 11-judge panel review the three-judge ruling that overturned Idaho's gay marriage ban. Otter argued in a motion filed Wednesday with the 9th U.S. Circuit Court of Appeals that another reply is needed because a separate federal court has since upheld same-sex marriage bans in other states. He added that the analysis in that case defending marriage between one-man and one-woman should also be included because the Idaho plaintiffs, the four lesbian couples who filed the original lawsuit nearly a year ago, claim fears of redefining marriage are unsubstantiated.

Several other states are also flailing about to keep their appeals active in the hopes of a SCOTUS ruling that would allow them to undo same-sex marriage.

IDAHO: "Add The Four Words" Activists Crash Gov. Otter's Halloween Party

Via Idaho's Fox affiliate:

Members of Idaho's "Add the Four Words" used the Halloween holiday to take their message to Governor Butch Otter. Several gay and lesbian couples and their supporters dressed in full holiday apparel went to the Capitol to trick-or-treat with the Governor. They carried treat bags that read "another Idaho family who supports A.J. Baulkoff governor." They even posed for a picture with the governor and his wife, saying "Idaho's new family" before snapping the shot -- something many thought they would never have the chance to say.

The "add the four words" campaign is now in its ninth year.

IDAHO: Otter Vows To Keep Fighting

Via the Huffington Post:

Idaho Gov. Butch Otter (R) vowed Thursday to keep fighting a U.S. Supreme Court ruling allowing same-sex marriage in his state, even as that effort costs Idaho tens of thousands of dollars. "I'm not ready to surrender to a few folks in black robes," Otter said during a gubernatorial debate. "I'm not ready to surrender the will of the people in the state of Idaho, as they expressed in 2006 in an overwhelming majority." A.J. Balukoff, the Democratic gubernatorial nominee, said Otter was fighting "a losing battle." "At this point, the ship has sailed," Balukoff said. "You're not going to win that battle in federal court. You might as well start arguing about interracial marriage."

Otter did say that if a bill to protect LGBT residents against housing and employment discrimination were to pass, he would sign it.

Matt Baume: Marriage News Watch

Clip recap: "The number of states with marriage has gone up yet again this week. Only a handful of states are still trying to defend their marriage bans, and they're quickly running out of ways to delay their inevitable loss. A straight couple in Kansas has filed a new anti-gay lawsuit, and it's nuts. A federal judge just ruled against the freedom to marry, but his decision has virtually no chance of being upheld. Plus, there's a powerful new lawsuit in Mississippi."

IDAHO: Gov. Butch Otter To File En Banc Marriage Appeal With Ninth Circuit CourtUPDATE: AG To Appeal To SCOTUS

Via the Spokesman-Review:

Idaho Gov. Butch Otter announced today that he's filing a petition with the 9th Circuit U.S. Court of Appeals for an en banc re-hearing of Idaho's same-sex marriage case. “I will continue defending Idahoans’ self determination and the will of Idaho voters who decided that traditional marriage is a core principle of our society,” Otter said in a statement. He said his office will file the petition later today. An en banc review at the 9th Circuit, because the circuit is so large, would mean that a larger 11-judge panel would re-hear the case, after a three-judge panel made the decision earlier. In smaller circuits, an en banc review is a rehearing by the full court. Otter and Idaho Attorney General Lawrence Wasden earlier requested that 9th Circuit assign a full 11-judge panel to hear Idaho's case in the first place, rather than a three-judge panel; that request was denied. Wasden is not joining with Otter in today's petition.

Via press release from Otter's office.

“I have repeatedly pointed out to the courts that unaccountable judges imposing their perception of social change on the law – rather than public policy being changed through the democratic process – undoubtedly will lead to increased religious strife and restrictions on private property,” Governor Otter said. “For these important reasons, I will continue defending Idahoans’ self-determination and the will of Idaho voters who decided that traditional marriage is a core principle of our society.” Along with defending the critical definition of marriage in Idaho’s Constitution, Governor Otter also highlights in his request for rehearing that letting the three-judge panel’s decision stand will accelerate conflicts with First Amendment religious liberties and pose serious challenges to other portions of Idaho law. The Governor also said he continues to monitor same-sex marriage cases in other jurisdictions and the potential for the issue to be accepted for review by the U.S. Supreme Court.

It's interesting that the attorney general isn't joining in.

UPDATE: The Spokesman-Review has added one line to the above story: "Wasden is not joining with Otter in today's petition. However, his spokesman, Todd Dvorak, said today that Wasden does plan to file an appeal to the U.S. Supreme Court in the coming weeks."

Seen In Idaho

An Idaho family is ever so pissed about gay marriage and has painted slogans on their cars.

The family has stamped statements that read "God isn't dead," "Just say no to same-sex marriage," and "Homosexuality is a sin" among other things on their car windows. "This is kind our little way of protesting the homosexual extremist movement," Justin said. The family says they are now being ridiculed for their beliefs, even though they have a right to freedom of expression. "We've had a few homosexual extremists who cuss us out and get very angry with us and threaten us," Justin said. But the Sease family says they're standing up for what is right, and are speaking out for others who are afraid to do the same. "If nobody else is going to do it, why not start doing it," Melanie said. "Hopefully, other people will join us and follow us and do what we're doing."

Note the Butch Otter sticker.

Quote Of The Day: Idaho Gov. Butch Otter

"The 9th U.S. Circuit Court of Appeals has issued its mandate for enforcement of decisions overturning the Idaho Constitution’s prohibition on same-sex marriage effective at 10 a.m. MDT, 9 a.m. PDT on Wednesday, October 15. I continue to believe that the federal courts are mistaken in abandoning the sanctity of traditional marriage and in undermining the will of Idaho voters and each state’s right to define marriage. But we are civil society that respects the rule of law. We have done all we can through the courts for now to defend traditional marriage in Idaho." - Gov. Butch Otter.

NOTE: Yesterday I reported that Otter said he was considering an appeal to SCOTUS or an en banc review from the Ninth Circuit. His use of "for now" in today's statement seems to indicate that one of those options is still on the table. At any rate, we get a new Wikipedia map in the morning.

IDAHO: Gov. Otter Isn't Surrendering On Same-Sex Marriage After All

On Friday night, Idaho Gov. Butch Otter seemed like he was surrendering the fight against same-sex marriage, saying, "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." Today we hear differently.

The 9th Circuit asked the state to respond to the plaintiffs' motion by 1 p.m. Monday. Otter and Attorney General Lawrence Wasden are pursuing separate legal tracks, so each filed a response. In his response to the plaintiffs' motion to lift the stay, Otter asked the 9th Circuit to leave the District Court stay in place so he can request a full 9th Circuit Court hearing or seek a stay from or file a petition with the Supreme Court. Wasden responded the state is not opposed to lifting the District Court stay because given the actions taken by the Supreme Court on Oct. 6 in which it rejected seven petitions from other states requesting review along with Idaho's failed request for a Supreme Court stay, the state "cannot satisfy the stringent standards governing issuance of stays," Wasden wrote. But Wasden said that does not mean the state will not pursue further legal action. The state's non-opposition to the stay "does not reflect reconsideration of their position concerning validity of Idaho's marriage laws or the strength of their legal position. Nor does it reflect a determination not to pursue further review of the October 7 opinion," in which the 9th Circuit shot down Idaho’s gay-marriage ban.

(Tipped by JMG reader Bob)

IDAHO: Gov. Butch Otter Surrenders, Marriage Licenses Issued In One County

"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. Butch Otter.

The Spokesman Review reports that one Idaho county has issued marriage licenses without waiting for the formal order from the Ninth Circuit.

Latah County has now issued three marriage licenses to same-sex couples, and three more are waiting; the clerk’s office there closes in 11 minutes. “I think there’s going to be six when we finish,” said county Clerk Susan Petersen. She said she believes Latah is the only county that decided to issue licenses this afternoon. “We were given a directive to wait for the written mandate from the 9th Circuit and to keep in contact with our prosecuting attorneys,” she said, “and our prosecuting attorney’s office gave me the opinion that I needed to proceed with the marriage licenses.” She said her office attracted a crowd this afternoon, and she described the mood among the crowd as “very jubilant.”

Latah County is home to the University of Idaho.

NEVADA: Anti-Gay Group Joins Idaho's Petition For En Banc Review By NinthUPDATE: Marriages Are Back On In Nevada

The Coalition For The Protection Of Marriage, who defended Nevada's marriage ban after the governor and attorney general dropped their appeals, has joined Idaho Gov. Butch Otter's request for an emergency stay until an en banc rehearing by the Ninth Circuit Court.

Early this morning Supreme Court Justice Anthony Kennedy issued a stay order that some media outlets are reporting as applying to both Idaho and Nevada. There is considerable chatter among the legal eagles as to whether that was Kennedy's intent, but in the meantime no marriages will take place today in Nevada.

Officials at Lambda Legal, the gay rights advocacy organization that argued the Nevada case on behalf of eight same-sex couples, noted that only Idaho sought the stay. Jon Davidson, the group's legal director, called for the nation's highest court to clarify whether Nevada can issue marriage licenses. He argued the Nevada and Idaho cases had been consolidated only for purposes of Tuesday's decision, and that Nevada's inclusion in the stay may have been a mistake. "Nothing prevents clerks in Nevada from proceeding to issue licenses today," he said. Nevada didn't seek a stay. Gov. Brian Sandoval and state Attorney General Catherine Cortez Masto issued a joint statement late Tuesday saying the state would take no further action. Sandoval, a Republican former federal district judge, said he determined the state had no way to defend its position after an appeals court ruling in another case in February.

Nevada marriages will go on late today or tomorrow if Kennedy indicates that his order only applies to Idaho. That won't likely happen, however, if the above petition is granted.

UPDATE: Go get your hair did, Nevada.

IDAHO: Gov. Butch Otter Requests Marriage Stay Pending En Banc ReviewUPDATE: Justice Kennedy Issues Stay

Via the Idaho Statesman:

Earlier this morning, Idaho Gov. Butch Otter filed a motion with the 9th Circuit Court of Appeals seeking a stay pending appeal of the court's ruling Tuesday that Idaho's law banning gay marriage is unconstitutional be stayed pending an appeal. Without the stay, county clerks throughout Idaho will be compelled to begin issuing mariage licenses to same-sex couples beginning at 8 a.m. Wednesday. "Each same-sex marriage performed will be contrary to the interests of the state and its citizens in being able to define marriage through ordinary democratic channels," wrote Thomas C. Perry, counsel for the governor, in one of three filings this morning. A stay would allow the state to seek a review by the entire 9th Circuit Court of Appeals of Tuesday's ruling by a three-member panel. Perry wrote the state is also prepared to press the matter before the United States Supreme Court.

Idaho's Ada County Clerk Chris Rich plans to begin issuing same-sex marriage licenses at 8AM today local time and says he will do so until he "hears otherwise." Ada County is Idaho's most populous and is home to Boise, the state capital.

UDPATE: Supreme Court Justice Anthony Kennedy, who has jurisdiction over the Ninth Circuit, has issued the stay.

FUN FACT: Marriage defender Gov. Butch Otter's first wife of 28 years was named Gay. Her name was Gay Otter. Seriously. Her maiden name was Gay Simplot and she's one of the heirs to a multi-billion dollar potato fortune. Seriously. These days Gov. Otter is married to a former Miss Idaho, who is 25 years younger than the former Gay Otter.

BONUS FUN FACT: When Butch Otter was busted for DUI in 1992, he told the cops that he'd failed the Breathalyzer test because his chewing tobacco was soaked in Jack Daniels. Seriously. He was convicted and ordered to rehab. The scandal brought down his bid for governor that year.

IDAHO: Governor Asks Ninth Circuit Court For En Banc Marriage Overturn Review

Idaho Gov. Butch Otter (seriously) has filed a motion to have his state's marriage equality case heard by the full Ninth Circuit Court rather than the usual three-judge panel.

“Because the marriage issue is so passionately contested and so divisive among the citizenry, the perception of the legitimacy of this court’s resolution of it must be of paramount concern,” attorneys for the governor argue in their motion. “A decision by an 11-judge panel stands far higher and stronger than does a decision by a three-judge panel, just as a decision by a three-judge panel stands far higher and stronger than does a decision by a single judge.” U.S. Magistrate Judge Candy Dale last month overturned Idaho’s constitutional ban on same-sex marriage, saying it violated the U.S. Constitution’s guarantees of equal protection and due process; four Idaho couples had sued, saying their constitutional rights were violated by the state not allowing them to marry or not recognizing their legal marriages from other states.

In addition to the marriage case, Otter wants the Ninth Circuit to clarify its application of "heightened scrutiny" in an earlier ruling involving two pharmaceutical giants. (Tipped by JMG reader Matthew)

NOTE: Because the Ninth Circuit Court of Appeals has so many judges, an en banc review does not involve the entire 29-seat bench. Instead the case is heard by the head judge and ten others selected at random.

IDAHO: NCLR Files Stay Opposition Brief With Ninth Circuit Court Of Appeals

The National Center for Lesbian Rights has filed their motion in opposition to the stay demand made yesterday to the Ninth Circuit Court of Appeals by Idaho Gov. Butch Otter (seriously.) View the full ruling at my Scribd account and pull out the best parts.

FUN FACT: Marriage defender Gov. Butch Otter's first wife of 28 years was named Gay. Her name was Gay Otter. Seriously. Her maiden name was Gay Simplot and she's one of the heirs to a multi-billion dollar potato fortune. Seriously. These days Gov. Otter is married to a former Miss Idaho, who is 25 years younger than the former Gay Otter.

BONUS FUN FACT: When Butch Otter was busted for DUI in 1992, he told the cops that he'd failed the Breathalyzer test because his chewing tobacco was soaked in Jack Daniels. Seriously. He was convicted and ordered to rehab. The scandal brought down his bid for governor that year.

IDAHO: We're Getting Ready, Just In Case

Idaho county clerks say they are preparing for a rush of gay couples seeking marriage licenses tomorrow in the event that Gov. Butch Otter (seriously) doesn't get his stay from the Ninth Circuit Court of Appeals.

Ada County Clerk Chris Rich said his staff also is preparing for a media onslaught. "They are more apprehensive about the media focus and possible protesters than the change," Rich said. The Ada office has one full-time person handling marriage licenses, who on a busy day can process about 30 at 10 to 15 minutes per license. Rich is not sure how many gay couples to expect Friday, so he's bringing in six additional staffers. "We are going to put all our resources out there," he said. Canyon County Clerk Chris Yamamoto is also preparing for a busy Friday. "We will be open for business and we will handle business," he said. Idaho's county clerks will get a crash course Thursday on how to comply with Judge Dale's ruling via an online training session, said Idaho Association of Counties Executive Director Dan Chadwick. "If there is no stay, then we are going to provide tools for the clerks to implement the court's ruling," said Chadwick. "We want to make sure everyone is on the same page."

Idaho has no waiting period to be married after the license is issued, but court watchers say there is little chance that the Ninth Circuit won't issue the stay.

IDAHO: Governor Asks Ninth Circuit Court To Stop Friday's Same-Sex Marriages

Having been rejected today by the district court that overturned Idaho's marriage ban, Gov. Butch Otter (seriously) tonight took his stay demand to the Ninth Circuit Court. Same-sex marriages are due to commence Friday morning. Chris Geidner reports at Buzzfeed:

“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,” lawyers for Otter wrote. Specifically, Otter pointed to the U.S. Supreme Court’s decision to issue a stay during the appeal of the case challenging Utah’s marriage ban as a reason to grant the stay.

In issuing the stay in the Utah case, the lawyers for Otter wrote that “the United States Supreme Court made clear that it will decide the constitutionality of man-woman marriage and until that time no lower court decision holding against man-woman marriage should operate to allow same-sex couples to marry or have their marriages recognized contrary to the law of their particular States.” The brief is signed by Otter’s new outside counsel as of Wednesday, Monte Stewart. Stewart is one of the outside lawyers helping Utah in its defense of its marriage ban, as well.

Tonight's filing by Otter says if the Ninth Circuit refuses his request for a stay pending appeal, they should at least delay Friday's start of same-sex marriages until he has time to appeal to SCOTUS.

CORRECTION: In the first draft of this post I wrongly stated that Idaho's marriages are due to start tomorrow. The correct start time is Friday morning. Hey, I've been blogging since 7AM!