9th Circuit Court issues stay in Idaho gay marriage case

Published: Thursday, May 15 2014 11:45 a.m. MDT

The lobby outside the county clerks office was filled with people looking to get their marriage license despite the doors closing two hours later than normal business hours for the day, after a federal judge ruled that Amendment 3, Utah's same-sex marriage ban is unconstitutional on Friday, December 20, 2013. Idaho officials seeking to stay a federal court ruling that struck down the state's ban on same-sex marriage say they want to avoid the "chaos" that ensued in Utah.

Matt Gade, Deseret News

SALT LAKE CITY — Idaho officials pointed to "chaos" in Utah in getting a federal appeals court Thursday to delay a judge's ruling that struck down the state's ban on same-sex marriage.

The 9th Circuit Court of Appeals ordered a temporary stay pending Idaho's emergency motion for a longer stay while it appeals U.S. District Judge Candy Dale's decision earlier this week. The temporary stay will remain in place until the 9th Circuit decides whether to issue a full stay pending the state's appeal.

Attorneys for Idaho asked the court to put a hold on Dale's ruling that would have allowed gay and lesbian couples to marry starting Friday morning.

In the motion, Boise lawyer Monte Stewart argued that, without a stay, "Idaho will experience the same unseemly chaos, confusion, conflict, uncertainty, and spawn of further litigation and administrative actions seen in Utah and, to a lesser extent, Michigan" when hundreds of same-sex couples "'married' in contravention" of the states' marriage laws.

Stewart, whom Utah agreed to pay $50,000 to defend its marriage law, said the U.S. Supreme Court ultimately stayed the Utah decision "but too late to avoid much of the harms."

Deborah Ferguson, a lawyer for the Idaho plaintiffs, contended Idaho failed to show what harm would be done to the state if same-sex couples were allowed to marry.

"There is no uncertainty or confusion from the state’s perspective; county recorders may simply continue to issue marriage licenses as they do in the regular course of their business," she wrote in a motion opposing the stay.

About 1,300 couples married in Utah after U.S. District Judge Robert Shelby overturned the state's voter-approved Amendment 3 defining marriage as between a man and a woman. The law also prohibits recognition of any other type of same-sex union. Stewart helped lead the campaign to get the Utah constitutional amendment passed in 2004.

Utah has declined to recognize those marriages, leaving same-sex couples who married in the state in legal limbo. Four couples filed a lawsuit to have their marriages recognized. Same-sex couples trying to adopt children also are fighting the state in court.

Stewart said the Supreme Court made it clear when it issued the Jan. 6 stay in Utah that it will decide the marriage question and no lower court decision should allow same-sex couples to marry or have their marriages recognized.

Since the Supreme Court’s intervention, all but one of the district courts that ruled against man-woman marriage stayed their own decisions. The one exception was Michigan, and the 6th Circuit Court of Appeals stayed that decision within hours, Stewart wrote.

Ferguson argued that those courts did not perform their own analysis of the required legal test for a stay. Instead they cited the Supreme Court's order in the Utah case "with little or no examination of the relevant factors."

On Tuesday, Dale overturned Idaho's voter-passed law banning same-sex marriage and rejected the state's request for a stay, saying it likely would not win on the merits of the case. The state then turned to the 9th Circuit Court.

Email: romboy@deseretnews.com, Twitter: dennisromboy

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