Constitutional Law

Same-sex marriage allowed in Idaho after SCOTUS and 9th Circuit lift stays

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Gay marriages could begin on Wednesday in Idaho after stays were lifted by the U.S. Supreme Court and then the by the San Francisco-based 9th U.S. Circuit Court of Appeals.

The 9th Circuit lifted its stay on Monday before lawyers representing gay couples submitted briefs in opposition to the state’s legal filings, report SCOTUSblog and the Spokesman-Review. “I guess they kind of knew what we were going to say,” the couples’ lawyer, Deborah Ferguson, told the Spokesman-Review.

Lawyers for Idaho’s governor are expected to ask the U.S. Supreme Court for another stay, SCOTUSblog says. Lawyers for Gov. C.L. “Butch” Otter split with the Idaho Attorney General’s office, which has dropped its quest for a stay. The AG’s office said the state couldn’t satisfy the “stringent standards governing issuance of stays,” according to the Spokesman-Review.

The governor is represented by lawyer Gene Schaerr, who argued the stay should be left in place until a petition for a rehearing en banc can be submitted. “What is left of the state sovereignty,” his brief (PDF) asked, “if a state cannot even keep a democratically enacted law in place until reasonable appellate options have been exhausted?” Lifting the stay “would … improperly treat the sovereign state of Idaho as an ordinary litigant, entitled to no more respect than a fly-by-night payday loan business or massage parlor.”

Ferguson told the Spokesman-Review is it rare to see such language in a brief. “I thought it was inappropriate. Truly, I thought it was bizarre,” she said. “I don’t think it added anything to their brief or their argument, and clearly, the court wasn’t swayed by it.”

The Washington Post and the National Law Journal have stories on U.S. Supreme Court action last week on gay marriage. The week began with the Supreme Court denying review in seven cert petitions on the issue of same-sex marriage. Justice Anthony M. Kennedy temporarily stayed a 9th Circuit ruling allowing gay marriages in Nevada and Idaho, then lifted the stay for Nevada after apparently realizing the state had not sought a stay, the National Law Journal says. Late on Friday, Kennedy also lifted the Idaho stay.

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