US federal judge strikes down Idaho's same-sex marriage ban

Idaho's ban found to be unconstitutional, prompting fervent celebrations in front of the courthouse in Boise on Tuesday

theguardian.com, Associated Press in Boise, Wednesday 14 May 2014

Same-sex Idaho couples celebrate in Boise. Photograph: Kyle Green/AP

Amber Beierle and Rachael Robertson say they'll be the first in line if Idaho starts issuing marriage licenses to same-sex couples on Friday.

They've tried before – the couple was denied a license just six months ago in Boise – but now they have the federal court on their side. US district magistrate judge Candy Dale ruled in their favor and in favor of three other Idaho couples Tuesday evening, finding the state's ban on same-sex marriage unconstitutional.

They were joined by their fellow plaintiffs and attorneys in front of the federal courthouse Tuesday evening, celebrating the win with champagne, family and friends.

"The first person I called when I got the news was my mom, and she said 'I'm so proud of you Amby,'" Beierle said, holding back tears. "I don't think people understand what that means to native Idahoans who love this state and want to stay in this state but who want to be heard. It feels amazing."

Dale said the state must issue marriage licenses to same-sex couples starting at 9am Friday. Governor CL "Butch" Otter already has said he intends to appeal the case, meaning an appellate court could still put the weddings on hold.

The four couples filed the lawsuit against Otter and Ada County clerk Chris Rich challenging the marriage ban in November. The other couples are Sue Latta and Traci Ehlers; Lori and Sharene Watsen; and Shelia Robertson and Andrea Altmayer.

Latta and Ehlers married in 2008 in California, and the Watsens married in 2011 in New York. Both couples have children and say Idaho wrongly treats Ehlers as a legal stranger to her grandchildren and requires Lori Watsen to obtain a new power of attorney every six months so she can have legal authority to consent to medical treatment for her son. Altmayer and Sheila Roberston were also denied a marriage license in Idaho last year.

"We won," Latta said, holding the hand of her wife, Ehlers. "After arguing in court [last week] there was nothing clearer in my brain, we had a valid legal argument."

The governor vowed to appeal the ruling, citing the state's constitutional amendment banning same-sex marriage. Earlier this week he notified the federal magistrate judge that if he loses the case, he may try to appeal directly to the US supreme court, instead of going first through the 9th US circuit court of appeals.

"In 2006, the people of Idaho exercised their fundamental right, reaffirming that marriage is the union of a man and a woman," he said in a statement Tuesday. "Today's decision, while disappointing, is a small setback in a long-term battle that will end at the US supreme court.

"I am firmly committed to upholding the will of the people and defending our constitution."

In her ruling, Dale said neither tradition nor majority opinion trumps the fact that marriage is a fundamental right of all citizens.

"The Plaintiffs are entitled to extraordinary remedies because of their extraordinary injuries," Dale wrote. "Idaho's Marriage Laws withhold from them a profound and personal choice, one that most can take for granted. By doing so, Idaho's Marriage laws deny same-sex couples the economic, practical, emotional and spiritual benefits of marriage, relegating each couple to a stigmatized, second-class status. Plaintiffs suffer these injuries not because they are unqualified to marry, start a family, or grow old together, but because of who they are and whom they love."

Dale said that a legal marriage impacts the day-to-day life of a spouse in many ways.

"From the deathbed to the tax form, property rights to parental rights, the witness stand to the probate court, the legal status of 'spouse' provides unique and undeniably important protections," Dale wrote.

The judge also rejected Otter's claims that same-sex marriage harms kids by encouraging marriages that aren't focused primarily on children.

If Idaho's marriage laws are indeed designed to improve child welfare, they are both grossly over-inclusive – because they give protections and resources to couples who can't or won't procreate — and dramatically under-inclusive – because they deny protections and resources to children of homosexual parents, Dale said.

Idaho Attorney General Lawrence Wasden said he would consult with the governor on the state's appeal.

Last year the US supreme court ruled that a law forbidding the federal government from recognizing same-sex marriages was unconstitutional. Since then, lower-court judges have repeatedly cited the decision when striking down same-sex marriage bans that were enacted after Massachusetts started recognizing gay marriages in 2004.

In addition to Idaho, federal or state judges in Oklahoma, Virginia, Michigan, Texas, Utah and Arkansas have recently found those state bans to be unconstitutional. Judges have also ordered Kentucky, Ohio and Tennessee to recognize same-sex marriages from other states.