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The Marriage Equality Ruling in Idaho: A Legal Summary and Analysis

BY ARI EZRA WALDMAN

Last last night, a federal magistrate judge in Idaho declared that state's ban on same-sex marriage unconstitutional.

DaleJudge Candy Wagahoff Dale wrote as follows:

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. 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.

Latta v. Otter, slip op. at 3.

This conclusion should sound familiar to regular Towleroad readers. The key takeaway points: The right to marry is fundamental, in line with many Supreme Court cases; bans on gays marrying stigmatize gays and gay relationships as less than equal and relegate us to second-class status (remember Justice Ginsburg's "skim milk marriages" comment?); and, the exact level of scrutiny demanded by antigay discrimination is irrelevant because the ban is so irrational that it fails even under the lowest form of review.

A decision like this has become the new normal, especially in the post-Windsor world.

CONTINUED, AFTER THE JUMP...

Continue reading "The Marriage Equality Ruling in Idaho: A Legal Summary and Analysis" »


Wednesday Speed Read: Virginia, Idaho, Equality Act of '74, Matt Foreman, ENDA, Alaska

BY LISA KEEN / Keen News Service

NiemeyerFOURTH CIRCUIT SLUGFEST:

Oral arguments Tuesday before the Fourth Circuit U.S. Court of Appeals over Virginia’s ban on same-sex marriage suggest the vote will almost certainly be 2 to 1 vote. The only question is which way it will go. Sharp comments and fierce questioning by two of the three judges left little room for doubt on how their votes will split. Republican appointee Paul Niemeyer, 73, said allowing gays to marry could set the stage for a man to marry “six wives or his daughter.” He suggested same-sex couples could have a “parallel” type relationship “with less attributes.” Democratic appointee Judge Roger Gregory, 62, derided arguments by attorneys who said marriage laws are for heterosexual couples to “protect the children.” Gregory said that sounded like a “totalitarian system where people are baby makers and you get married for the interest of the state.” Full story tomorrow.

DaleTHE ‘SLOW’ MARCH IN IDAHO:

Just eight days after hearing arguments, a U.S. magistrate judge on Tuesday struck down Idaho’s ban on same-sex marriage and ordered the state begin issuing licenses Friday. Chief U.S. Magistrate Judge Candy Dale’s 57-page memorandum order in Latta v. Otter, a case brought by the National Center for Lesbian Rights, says the ban on same-sex couple marrying violates the U.S. Constitution’s guarantees to equal protection and due process.  “Slow as the march toward equality may seem, it is never in vain,” wrote Dale, who said the state offered “no evidence that same-sex marriage would adversely affect opposite-sex marriages or the well-being of children.” The ruling made Idaho the 11th state this year to see its ban on same-sex marriage struck down. All are under appeal. In anticipation of Dale’s decision, Idaho’s Republican Governor Butch Otter filed a motion requesting a stay pending appeal.

SPEAKING OF THE ‘SLOW’ MARCH:

It was 40 years ago today that U.S. Reps. Bella Abzug and Ed Koch (D-NY) introduced the “Equality Act of 1974,” the first version of what is now the Employment Non-Discrimination Act (ENDA). The Equality Act was a much broader piece of legislation, seeking to prohibit discrimination based on sexual orientation in employment, housing, and public accommodations. Over the years, the bill was trimmed and rewritten. Today’s version seeks to prohibit discrimination based on sexual orientation and gender identity but only in employment with businesses of 15 employees or more and with exemptions for religious organizations. The bill passed the Senate last November for the first time in its 40-year history; but House Speaker John Boehner (R-Ohio) has vowed it will not get a vote in the House under his leadership.

ForemanPULL THE PLUG ON ENDA?

Former National Gay and Lesbian Task Force Executive Director Matt Foreman urged LGBT leaders to “pull the plug” on the Employment Non-Discrimination Act (ENDA), saying it is an “essentially lifeless corpse.”

COUPLES SUE IN ALASKA:

Five same-sex couples filed suit in federal court Monday to challenge Alaska’s ban on same-sex marriage. That now leaves only three states with bans that have not yet been challenged in court: North Dakota, South Dakota, and Montana.

LAMBDA AT ALASKA SUPREME COURT:

Lambda Legal argued a case before the Alaska Supreme Court Tuesday that could strike down that state’s ban on same-sex marriages. In Harris v. Millennium Hotel, Lambda argued that the state law barring same-sex couples the right to marry prevented Deborah Harris from qualifying for a survivors’ benefit paid through the state’s Workers Compensation Act to spouses of employees killed at work. Harris and Kerry Fadely were in a relationship for 10 years before Fadely was shot to death at work by a recently fired employee.

© 2014 Keen News Service. All rights reserved.


Federal Judge Hears Arguments on Idaho Gay Marriage Ban, Promises Swift Ruling: VIDEO

Couples

U.S. Magistrate Judge Candy W. Dale (pictured) heard three motions in a case challenging Idaho's ban on gay marriage today, and promised a swift ruling. The state filed to dismiss the case and both sides filed for summary judgment.

DaleThe case was brought by four gay couples who sued after Ada County refused to issue marriage licenses or recognize marriages from other states. The couples argue that the state's ban violates the Equal Protection and Due Process Clauses of the U.S. Constitution.

The AP reports:

Gov. C.L. "Butch" Otter, a defendant, says states have the right to define marriage as they see fit. He contends that the same-sex marriage ban is vital to Idaho's goal of creating "stable, husband-wife unions for the benefit of their children."

The Spokesman Review adds:

“Idaho has sufficiently good reasons for maintaining the man-woman marriage institution,” Thomas Perry, attorney for Gov. Butch Otter, told the court. “When you look at benefits, what more compelling interest does the state of Idaho have than securing an ideal child-rearing environment for future generations?”

In the front row of the audience, one of the plaintiffs in the case cried silent tears. “We have a 4-year-old son together,” Shelia Robertson explained afterwards, holding hands with partner Andrea Altmayer. “We’ve been together for 16 years, and it took us a long time, it was a very careful decision for us to have our boy. We love our boy. … The fact that I don’t have any rights to him at all – it’s frightening every day.”

Dale said she would rule in the "relatively near future" according to the AP.

Watch a report from KTVB Boise, AFTER THE JUMP...

Continue reading "Federal Judge Hears Arguments on Idaho Gay Marriage Ban, Promises Swift Ruling: VIDEO" »


Challenge to Idaho Gay Marriage Ban to Get Hearing on Monday

A federal judge in Idaho will hear an NCLR-led challenge to the state's gay marriage ban on Monday, the Times-News reports:

OtterFour Boise-based same-sex couples are challenging Idaho’s constitutional ban after Ada County refused to issue marriage certificates or recognize marriages from other states. Similar bans in other states, including Utah’s, have recently been struck down in district-level federal courts and are under appeal.

The Idaho suit was filed in November against Gov. C.L. “Butch” Otter and Ada County Clerk Chris Rich.

In their request, the couples argue that Idaho’s ban on marriage for same-sex couples violates the Equal Protection and Due Process Clauses of the U.S. Constitution.

Argument will be heard before Chief United States Magistrate Judge Candy W. Dale at 9:30 a.m.

The couples are represented by Boise attorneys Deborah A. Ferguson and Craig Durham, and San Francisco-based the National Center for Lesbian Rights (NCLR).


Friday Speed Read: Ninth Circuit, Michelle Friedland, Idaho Veteran, New Hampshire

BY LISA KEEN / Keen News Service

SENATE CONFIRMS PRO-GAY JUDGE:

FriedlandThe U.S. Senate voted 51 to 40 on Wednesday to confirm the nomination of a pro-gay judge to the Ninth Circuit U.S. Court of Appeals. Judge Michelle Friedland of San Francisco served as research assistant for openly gay Professor Kathleen Sullivan from 1999 to 2000 and then as law clerk to U.S. Supreme Court Justice Sandra Day O’Connor from 2001 to 2002. She won an LGBT Award from the ACLU of California in 2009 for her work challenging Proposition 8. She played a substantial role in drafting briefs in support of same-sex couples before the California Supreme Court. She wrote an amicus brief against Proposition 8 in the Hollingsworth v. Perry appeal to the U.S. Supreme Court last year on behalf of Bay Area Lawyers for Individual Freedom and others. In questions submitted in writing, Senator Charles Grassley (R-Iowa) asked Friedland whether there is an “equivalency” between marriage equality and racial equality. Friedland noted that most cases involving racial discrimination have been decided based on equal protection. In contrast, she said, the Supreme Court ruling in U.S. v. Windsor used due process and equal protection grounds. She noted that the issue with regard to state bans is still “being litigated actively.”

NOMINEE’S VOTE ‘HELD OVER’:

The U.S. Senate Judiciary Committee was set to vote Thursday morning on the nomination of openly gay federal district court nominee Darrin Gayles. But it didn’t happen. Republicans on the committee asked that the Gayles nomination and three others be “held over” until next week.

Madelynn_taylorRETIRED VET TO THE RESCUE:

Retired U.S. Army Colonel Barry Johnson offered, in a political commentary published by the Idaho Statesman Wednesday, to give his plot in the Idaho State Veterans Cemetery to a lesbian former Navy veteran so she may be buried with her same-sex spouse. “As a lifelong Idahoan and a 27-year Army veteran of two wars, I've worked beside heterosexuals, gays, lesbians and bisexuals,” wrote Johnson. He said the end of “Don’t Ask, Don’t Tell” had little effect on most military personnel and he feels Madelynn Taylor deserves the right to have a plot in the state veterans cemetery next to her spouse. A state cemetery for military veterans in Idaho recently refused her request because Idaho bans recognition of same-sex marriages. “Like Madelynn, I love this state and I respect the views of all my neighbors, whether I agree with those views or not,” wrote Johnson, who acknowledged he was uncertain whether the state would allow Taylor to take him up on the offer. “…But let's not pick on people who aren't hurting anybody and simply minding their own business.”

NhA LOSS IN NEW HAMPSHIRE:

The New Hampshire House on Wednesday voted overwhelmingly to table a bill seeking to amend the state constitution to add sexual orientation to the state’s non-discrimination policy. Having passed the state senate unanimously in March, the House vote –to send the bill to an “interim study” committee—marked a tough blow.

AND A WIN IN NEW HAMPSHIRE: 

On the same day it rejected a prohibition on sexual orientation discrimination, the New Hampshire House voted 217 to 119 for a bill to clarify that the state would recognize marriage licenses issued to same-sex couples from other states and would recognize as marriages any civil union recognition granted to a same-sex couple from another state. The senate passed the bill in March. Democratic Governor Maggie Hassan is expected to sign the legislation.

© 2014 Keen News Service. All rights reserved.


Friday Speed Read: Louisiana, Maine, Texas, Jason Collins, Idaho, Mary Cheney, Health Benefits

BY LISA KEEN / Keen News Service

Stgermain‘I MIGHT HAVE THREE VOTES’:

Here’s how much support there is in the Louisiana House for barring discrimination based on sexual orientation or gender identity: “I might have three votes,” State Rep. Karen St. Germain told the Baton Rouge Advocate. Germain announced Tuesday she was withdrawing her bill to seek such protections.

MICHAUD SLIPS IN MAINE POLLS:

Openly gay U.S. Rep. Mike Michaud had a small lead over incumbent Republican Governor Paul LePage at the top of April, but now, he appears to have fallen behind. The first poll, by a more liberal polling group, showed Michaud’s bid to unseat LePage supported by 44 percent of voters surveyed, compared to 37 percent for LePage, and 14 percent for independent candidate Eliot Cutler. But by mid-April, a survey conducted by a Portland-based firm found LePage at 38.6 percent to Michaud’s 37.2 percent, and Cutler at 20.3 percent.

TEXAS ‘CANNOT DISCRIMINATE’: Nellermoe

A state district court judge in San Antonio, Texas, ruled Tuesday that because the state grants a presumption of parenthood to the husband of a child’s birth mother, it must do the same for the same-sex spouse of a child’s birth mother. The ruling came in ALFL v. KLL, a divorce and custody proceeding involving a lesbian couple who married in Washington, D.C., in 2010, gave birth to a child using donor insemination in 2013, and is now seeking to divorce in their home state of Texas which bans recognition of same-sex marriages. Echoing U.S. v. Windsor and a recent federal court decision in San Antonio, as well as the “best interests of the child,” Judge Barbara Nellermoe wrote that the state “cannot discriminate against same-sex couples” and that the state’s ban against allowing same-sex couples to marry violates the child’s right to equal protection of the law. Two similar cases are currently awaiting a ruling from the state supreme court.

J_collinsNAMED TO PRESIDENT’S COUNCIL:

President Obama on Thursday named openly gay pro basketball player Jason Collins to the President’s Council on Fitness, Sports, and Nutrition. Collins entered the NBA in 2001 and played for a number of professional teams before coming out as gay last year. He currently plays for the Brooklyn Nets. The White House press release notes Collins is “a partner with the Gay, Lesbian & Straight Education Network (GLSEN), a national education organization focused on ensuring safe schools for all students.”

A FINAL BATTLEGROUND: Madelynn_taylor

A state cemetery for military veterans in Idaho recently refused a lesbian veteran’s request that her same-sex spouse, who died two years ago, be buried with her when she dies. Madelynn Taylor, 74, said she knows the two could be buried together in a federal cemetery for veterans but that she has close, long-held ties to Idaho, according to KTVB-TV. A spokesman for the Idaho Division of Veterans Services told the station their hands are tied by the Idaho ban on recognizing same-sex marriages.

CheneyCHENEY BACK IN ACTION:

Lesbian political strategist Mary Cheney is one of several Washington Republican operatives launching a new firm this week. The outfit, according to politico.com, will be called [Voice of the People] Vox Populi Polling (aka Pop Polling, according to the new firm’s website.

THIRTY-TWO PERCENT PROBLEM: The U.S. Bureau of Labor Statistics reported Tuesday that, while 72 percent of all civilian workers get employer-sponsored health benefits for themselves and their spouses, only 32 percent of employees with same-sex domestic partners get benefits for their partners. The report was based on data collected a year ago.

© copyright 2014 by Keen News Service. All rights reserved.


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