Idaho judge strikes down state’s same-sex marriage ban (update)

Lyle Denniston at SCOTUSblog.com reports, Idaho same-sex marriage ban nullified:

A federal judge in Boise, ordering Idaho state and local officials to begin allowing same-sex couples to get married on Friday morning, struck down all laws in the state that permit or recognize only man-woman marriages.  A string of modern Supreme Court rulings, Chief Magistrate Judge Candy W. Dale said in a fifty-seven page ruling (.pdf), sent a message that was “unmistakable — all individuals have a fundamental right to marry.”

The judge said nothing in the ruling about a newly filed state request that she put on hold a ruling against the state ban.  (That request is discussed in an earlier post.)  Whether her ruling goes into effect on Friday at 9 a.m. local time (11 a.m. Eastern) may depend on the steps state officials now attempt to get it blocked — either by the U.S. Court of Appeals for the Ninth Circuit or by the Supreme Court.

Judge Dale (who is not a regular federal district judge but who had the consent of all parties to decide the case) flatly rejected the argument by Idaho Governor C.L. “Butch” Otter and other state officials that same-sex couples were seeking a new constitutional right to marry, exclusively for gays and lesbians.

Over and over, the Supreme Court, the judge said, has treated a right to marry as “fundamental” under the Constitution.  The only thing at issue before her, she wrote, was whether that right could be denied to couples solely because of their sexual orientation.  Such a denial, she found, violated the constitutional rights to both due process and equal legal treatment.

Supreme Court decisions on gay rights, the judge declared, instruct “not only that 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.”

Judge Dale’s ruling was the eleventh by a federal trial judge to nullify a state ban on same-sex marriage.  And, like the others, she relied to a considerable degree on the reasoning of the Supreme Court last June in United States v. Windsor, striking down a part of the federal Defense of Marriage Act.

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As a trial-level judge, [Judge Dale] had to follow a January ruling [in SmithKline Beecham Corp. v. Abbott Labs] by the Ninth Circuit interpreting the Windsor decision as embracing a “heightened scrutiny” constitutional standard for such cases.  (Idaho is a part of the Ninth Circuit’s region.)

The Idaho judge used that test in finding a denial of equal protection for same-sex couples seeking to marry or to have their existing out-of-state marriages formally recognized by the state.  But Judge Dale said the Idaho ban would have failed any constitutional test, because the state had not offered valid reasons to justify it.

She went over the history of Idaho’s passage of various laws in the past quarter-century to make sure that marriage was allowed only for man-woman couples, and concluded that each of those laws had the specific aim of excluding gays and lesbians solely because of their sexual orientation.

It was in her analysis of the claim by same-sex couples that Idaho’s ban violated their right to due process that Judge Dale spelled out most fully her finding that marriage is a fundamental right that is enjoyed by individuals as they make their own choices in a life partner.

The Supreme Court has dealt with the marriage right in several major decisions, the judge noted, demonstrating “that the right to marry is an individual right, belonging to all.”

In Arkansas, the state Supreme Court has not ruled on a request for a stay of the trial court order striking down that state’s same-sex marriage ban last Friday. Arkansas Attorney General Dustin McDaniel in his reply to the Plaintiff’s motion to dismiss his notice of appeal again requested today asking for a stay to halt the same-sex marriages that are occurring in Arkansas. McDaniel again asks for stay of gay-marriage ruling:

McDaniel’s office on Wednesday told the Arkansas Supreme Court that the stay of Pulaski County Circuit Judge Chris Piazza’s ruling against the gay marriage ban is needed because some clerks have been issuing marriage licenses to same-sex couples.

“Other clerks have concluded that Amendment 83 continues to prohibit the issuance of same-sex marriage licenses,” Assistant Attorney General Colin R. Jorgensen wrote in the response from McDaniel’s office. “Confusion is pervasive, and this Court should exercise its superintending authority over circuit courts to issue a stay.”

About 400 licenses have been issued so far, mostly in Pulaski and Washington counties.

McDaniel was responding to a motion to dismiss his appeal of Piazza’s Friday ruling. Lawyers challenging the ban said the appeal is premature because no final order has been filed.

McDaniel said he wouldn’t object to dismissing the appeal on those grounds if a stay is issued.

 Meanwhile, same-sex weddings resumed Wednesday in Pulaski County Circuit Court, where several couples tied the knot ahead of a possible stay that could halt the practice. Gay couples marry, wary ruling might be frozen.

UPDATE: The Idaho Statesman reports that Judge Dale has denied the state’s request for a stay. Judge denies Otter’s request; same-sex marriages in Idaho can start Friday:

U.S. Magistrate Judge Candy W. Dale has denied Gov. Butch Otter’s motion for a stay on her decision overturning Idaho’s ban on same-sex marriages.

After Dale’s ruling on Tuesday, Otter requested that an emergency hearing before Judge Dale take place before noon Wednesday on his request for a stay. Otter asked that no marriages be permitted until “completion of all appeals.”

Dale denied both of Otter’s requests.

“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,” said Otter.

Otter said today he will file motions for an emergency hearing and a stay with the 9th Circuit Court.

Attorney General Lawrence Wasden is preparing his own request for a stay, which should be filed today. Wasden is also preparing to file an appeal with the 9th Circuit Court of Appeals.

Even before Judge Dale ruled, Gov. Butch Otter filed a pre-emptive motion asking the federal court for an immediate stay in case the state’s ban was overturned. Otter asked that no marriages be permitted until “completion of all appeals.” That motion is pending; it’s not clear when the court will take it up.