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Idaho Files Emergency Motion to Recall 9th Circuit Mandate Lifting Gay Marriage Ban

Idaho's Attorney General Lawrence Wasden and Governor Butch Otter (pictured) have filed an emergency motion to recall a 9th Circuit mandate that would lift the state's gay marriage ban.

KTVB reports: Otter

Because of the mandate, same-sex couples in Idaho won't have to wait for the standard 7-day time span for the ruling to take effect. The Federal Rules of Appellate Procedure typically provide the seven-day waiting period to give the losing side a chance to appeal.

But the state of Idaho filed an emergency motion to recall that mandate, the attorney general's office confirmed Wednesday morning. It's unclear whether same-sex marriages will be allowed to proceed Wednesday.

Officials at the courthouse say they are following the order from the district court and will move forward once they get the word. The clerk's office got plenty of calls Tuesday about when gay couples can begin to wed.

The Idaho Statesman adds:

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.

However, the paper also reports that Ada County Clerk Chris Rich was told by the attorney general's office at 9 pm last night to begin issuing licenses to gay couples seeking them "until he hears otherwise."

UPDATE: Justice Anthony Kennedy orders temporary stay.

Read the motion below:

14-35420 #183 by Equality Case Files


Gay Idahoans Poised to Marry as Governor, Attorney General Review 9th Circuit Decision

While Nevada's Governor and Attorney General have given the go-ahead following yesterday's 9th Circuit ruling striking down gay marriage bans in Idaho and Nevada, Idahoans await word from state officials, according to The Statesman:

OtterGay marriage advocates were planning an 8 a.m. Wednesday rally at the Ada County Courthouse, but the county clerk cautioned people to wait for clarity before expecting to get a marriage license.

County Clerk Chris Rich said his staff is ready to issue same-sex marriage licenses as soon as he gets a directive from U.S. District Court or Idaho Attorney General Lawrence Wasden.

“Hopefully, someone will call me and tell me what to do,” Rich said.

Wasden said Tuesday night that his office is reviewing the 9th Circuit actions. “It’s still too early to know fully what the decision and orders mean for Idaho and how the state will proceed,” he said.

Idaho Governor C.L. 'Butch' Otter (pictured) released a statement shortly after the 9th Circuit ruling yesterday:

“Today’s decision by the 9th Circuit is disappointing, but not unexpected. I will carefully evaluate the opinion, along with yesterday’s surprising decision by the U.S. Supreme Court, and talk with legislative leaders and the Attorney General before determining our path forward. The stay on same-sex marriage in Idaho remains in effect until we are directed otherwise by the 9th Circuit.” 

Meanwhile, the 9th Circuit has issued its mandate of the ruling.


9th Circuit Strikes Down Same-Sex Marriage Bans In Idaho, Nevada: READ

Coming on the heels of yesterday's decision by the U.S. Supreme Court not to take up any of the 7 petitions on same-sex marriage it was considering, the 9th Circuit Court of Appeals today struck down bans on same-sex marriage in Idaho and Nevada.

The Washington Blade reports:9

In two rulings on Tuesday, a three-judge panel on the U.S. Ninth Circuit Court of Appeals ruled against the bans on same-sex marriage in Idaho and Nevada. Writing for the court, U.S. Circuit Judge Reinhardt says judges found the law were unconstitutional by subjecting them to heightened scrutiny.

“We hold that the Idaho and Nevada laws at issue violate the Equal Protection Clause of the Fourteenth Amendment because they deny lesbians and gays who wish to marry persons of the same sex a right they afford to individuals who wish to marry persons of the opposite sex, and do not satisfy the heightened scrutiny standard we adopted in SmithKline,” Reinhardt writes.

The Ninth Circuit decision affirms a lower district court ruling against Idaho’s ban on same-sex marriage, but it also reverses a court rulings affirming the ban on same-sex marriage in Nevada that was handed down in 2012 before the Supreme Court decision against the Defense of Marriage Act.

Read the decision, AFTER THE JUMP...

Back in September, our legal editor Ari Ezra Waldman noted that the judges were highly skeptical of the anti-equality arguments, and predicted this unanimous decision.

Wrote Waldman:

Three progressive judges, though more muted in their questioning than Judge Posner was at the Seventh Circuit, were no less skeptical of the homophobic, ahistorical, misleading, misdirected arguments against allowing gays to marry. The hearing was a testament to how far we have come since the last time marriage equality was before Judge Reinhardt. The 2 to 1 decision in the Prop 8 case was an exercise in caution, an attempt to give the Supreme Court a way to support marriage equality without jumping ahead of too much of country. But at that time, we didn't have Windsor, we didn't have several other appellate courts declare bans unconstitutional, and we didn't have an emerging consensus written down in appellate and district court opinions. At that time, we had only a handful of marriage equality states; today, we have 19 states and the District of Columbia with equal marriage, covering more than 44 percent of the population. Today's hearing will result in an opinion with none of the hedges and narrowings of Perry. It will likely be unanimous and another sign that this debate is nearing its end.

Stay tuned for more updates on this breaking story.

Continue reading "9th Circuit Strikes Down Same-Sex Marriage Bans In Idaho, Nevada: READ" »


IDAHO: Lewiston City Councilors Speak Out on Why They Oppose LGBT Non-Discrimination Ordinance - VIDEO

Rj johnson Lewiston Idaho

City councilors in Lewiston, Idaho, have spoken out against a proposed non-discrimination ordinance that would make it illegal to discriminate in housing, employment and public accommodation based upon sexual orientation and gender identity, reports KLEWTV.

Lewiston City Council Mayor Pro Tem R.J. Johnson said that although all seven members of the council are against discrimination based on sexual orientation, ordinance 4614 would infringe “on our basic civil liberties."

According to Jesse Maldonado, the youngest person ever elected to the Lewiston City Council, it is currently “legal to discriminate in the workforce, hiring or firing, or refusing someone service or not giving someone housing if they are gay lesbian, or transgender and there's no ramifications for doing so. So basically what this ordinance would do would make it a misdemeanor to do that which could then be punishable by jail time or a fine."

However, councilor Clinton Daniels said that 4614 could lead to retailers being “put in jail for six months” with a fine of $1,000 for refusing to serve LGBT customers. In a statement, Daniels said:

"My strong belief in liberty compels me to oppose ordinances that do not respect private property, freedom of association, and voluntary contracts; even when the stated goal of such ordinances is something I support.

When you engage in commerce, whether it be for a personal sale or a commercial one, it is a form of a contract, and in a free society all contracts should be voluntary."

Maldonado has since asked supporters to attend the next of two further readings of the ordinance on September 22nd.

 

Watch a KLEW TV reports, AFTER THE JUMP...

Continue reading "IDAHO: Lewiston City Councilors Speak Out on Why They Oppose LGBT Non-Discrimination Ordinance - VIDEO" »


Ninth Circuit Panel Eviscerates What's Left of Anti-Equality Arguments: A Summary and Analysis

BY ARI EZRA WALDMAN

BerzonA soft-spoken attorney representing Idaho started his state's anti-marriage equality argument by suggesting that allowing gays to marry violates the "bonding right" of children that they will be raised by their biological mothers and fathers. It took Judge Marsha Berzon just 15 seconds to ask her first question: "What is that word you're using before 'right'"? Judge Berzon can hear just fine; it's just that she had never heard anyone make such a ridiculous claim before today. The rest of the hearing followed similarly.

Judge Stephen Reinhardt, a Carter-appointee and liberal leader of the appellate courts, was joined by Judge Berzon, a sharp-minded progressive appointed by President Clinton, and Judge Robert Gould, another Clinton appointee, in a nearly two-hour long interrogation of attorneys from Idaho and Nevada that may not have been as bombastic as Judge Posner's treatment of attorneys from Wisconsin and Indiana in the Seventh Circuit, a hearing which resulted in a marvelous unanimous victory ("Go figure!"), but was every bit as damaging to the forces opposed to marriage equality.

It also brought marriage equality full circle. Judge Reinhardt was the judge that wrote the first decision from a federal appellate court on marriage equality, affirming District Judge Vaughn Walker's pioneering rejection of California's Prop 8. We all know how that case turned out.

And we know what's happened since: a Supreme Court decision in United States v. Windsor striking down the Defense of Marriage Act and a long streak of pro-marriage equality decisions from the lower federal courts, including several appellate courts.

Yesterday's hearing reminded us how far we have really come. Some of the arguments and much of the tone were different this time around. The judges' questioning was direct and they expressed a similar, though less visible, frustration with the misdirection and misleading statements from the anti-equality attorneys as Judge Posner. The tone of the hearing suggested that marriage equality supporters are finally out of the closet, following a tidal wave of an emerging consensus of the legitimacy and morality of marriage freedom for all.

A summary and analysis follows AFTER THE JUMP...

Continue reading "Ninth Circuit Panel Eviscerates What's Left of Anti-Equality Arguments: A Summary and Analysis" »


Watch LIVE: Ninth Circuit Oral Arguments in Idaho, Nevada, and Hawaii Gay Marriage Cases

Ninth

The Ninth Circuit Court of Appeals is scheduled to hear oral arguments in the Hawaii, Idaho and Nevada gay marriage cases today and will be live streaming the arguments from the courtroom in San Francisco.

The feeds will begin shortly before 1pm PT, with Idaho getting 30 minutes per side, Nevada getting 20 minutes, and Hawaii 10. 

Watch the feeds AFTER THE JUMP... 

Last week, we reported on the three judge panel that will hear the gay marriage cases - with Equality on Trial pointing out that the trio are considered "some of the most liberal appeals court judges in the country." 

MSNBC reports that sexual orientation also has "heightened scrutiny" in the Ninth Circuit, which bodes well for a pro-equality victory: 

With heightened scrutiny, defendants (such as state officials arguing on behalf of same-sex marriage bans) would have to show how a law that treats gay and lesbian people differently serves an important or compelling state interest, not just a legitimate one. Heightened scrutiny essentially shifts the burden of proof off of the plaintiffs, and makes laws that discriminate against same-sex couples more difficult to defend.

Continue reading "Watch LIVE: Ninth Circuit Oral Arguments in Idaho, Nevada, and Hawaii Gay Marriage Cases" »


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