Gay Marriage Is Off Again in Idaho and On in Arkansas

An Idaho judge’s decision to strike down the state’s gay marriage ban was put on hold by a U.S. appeals court as Arkansas’ attorney general waits for that state’s top court to rule on his bid to block a similar ruling.

Idaho Governor Butch Otter won a reprieve from U.S. Magistrate Judge Candy Dale’s May 13 ruling that the state’s prohibition was unconstitutional. In a one-sentence order, the U.S. Court of Appeals in San Francisco yesterday delayed implementation of her decision, which was to take effect today.

Otter, a Republican, is seeking a longer stay pending the outcome of his state’s appeal.

Arkansas Attorney General Dustin McDaniel, a Democrat, asked his state’s Supreme Court yesterday to immediately halt marriages made possible by a Little Rock judge’s decision last week to invalidate the state’s ban. The high court ordered those who sued to overturn the ban to file opposing papers by noon May 19.

Same-sex marriage has been deemed lawful in 23 states and the District of Columbia. Judges in several of those jurisdictions have delayed their rulings from taking effect while appeals are pending.

Several of the lawsuits challenging state same-sex marriage bans were filed in the wake of a U.S. Supreme Court decision in June that struck down a measure that limited federal recognition to marriages between a man and a woman.

Pennsylvania Challenge

A challenge to Pennsylvania’s ban on same-sex marriage got its first airing yesterday in a Philadelphia courtroom, with lawyers for a lesbian couple who were married in Massachusetts arguing that the state’s law is discriminatory and irrational.

Pennsylvania, the only northeastern U.S. state that still has such a ban, is under pressure to change its law defining marriage as a union of a man and a woman. At least four suits have been filed by couples there since June.

More than 400 gay couples have been issued marriage licenses in Arkansas since Judge Chris Piazza issued his May 9 ruling, the Associated Press has reported.

The legality of those licenses was thrown into doubt on May 14 when the Arkansas Supreme Court, in rejecting an earlier bid by McDaniel to block the effect of Piazza’s ruling, said the judge had failed to address a state law barring county clerks from issuing marriage licenses to same-sex couples.

In a supplemental order yesterday, Piazza remedied what he called an inadvertent omission, declaring that provision was also invalid. That set the stage for the attorney general’s renewed request for relief.

Win Streak

The Arkansas and Idaho court decisions were the 11th and 12th consecutive rulings by state or federal judges in favor of same-sex marriage recognition beginning in September when a New Jersey judge invalidated that state’s ban.

Dale, the Boise, Idaho, federal magistrate, in her ruling called marriage “a fundamental right of all citizens which neither tradition nor the majority can deny.”

Otter in a statement yesterday said he was committed to defending the state’s constitution and the will of Idaho’s voters.

“Idaho will not have to endure the same kind of chaos and confusion that Utah faced after a similar challenge,” Otter said.

The “chaos” referred to a decision by U.S. District Judge Robert Shelby in Salt Lake City finding Utah’s ban on gay marriage unconstitutional. The ruling cleared the way for more than 1,000 same-sex couples to marry in the state before the U.S. Supreme Court in January granted Utah’s request to halt further marriages pending appeal.

Utah Appeal

Shannon Minter, a lawyer representing plaintiffs in the Idaho case, said in a phone interview that he is “encouraged” by the appeals court ruling. Other courts issued “knee-jerk” stays based on the Supreme Court’s ruling in the Utah case instead of undertaking the legal analysis required to grant the request, he said.

Every federal court to consider bans on same-sex marriages since Shelby’s ruling has ruled them unconstitutional, Minter added.

A federal appellate panel in Denver last month heard argument on bids to reverse rulings that struck down same-sex marriage bans in Utah and Oklahoma. The U.S. appeals court in Richmond, Virginia heard argument on May 13 over a decision invalidating that state’s prohibition.

Rulings in one or more of those cases could be accepted for review by the Supreme Court.

The Idaho appellate case is Latta v. Otter, 14-35420, U.S. Court of Appeals for the Ninth Circuit (San Francisco). The lower-court case is Latta v. Otter, 13-cv-00482, U.S. District Court, District of Idaho (Boise). The Arkansas Supreme Court case is Smith v. Wright, CV-14-427. The lower court case is Wright v. State of Arkansas, 60CV-13-2662, Pulaski County Circuit Court, Second Division (Little Rock).

Before it's here, it's on the Bloomberg Terminal.