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“Now you must raise your children up in a world where that union of man and box turtle is on the same legal footing as man and wife…”
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Posts for January, 2015

Ninth Circuit slaps down Butch Otter

Timothy Kincaid

January 10th, 2015

Idaho Governor Butch Otter has had his hat handed back to him. Again.

Otter’s defense of the state’s anti-gay marriage laws hasn’t gone well. He lost in federal court. He lost on appeal at the Ninth Circuit. And the Supreme Court is not considering whether to hear Idaho’s appeal. On October 10th of last year, Justice Kennedy lifted the last stay and marriages have been occurring since.

But it seems that Otter hasn’t met Captain Obvious. So, in what appears to be a pointless effort, he appealed to the Ninth Circuit to hear his case en banc (by a larger panel of judges).

Yeah… no.

He did get the support of three judges, O’Scannlain, Rawlinson, and Bea, but,

The full court was advised of the petitions for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc reconsideration.

Did SCOTUS just bless heightened scrutiny?

Timothy Kincaid

October 10th, 2014

When Idaho presented its brief explaining why the Ninth Circuit’s ruling overturning the state’s ban on same-sex marriage, it focused on one point. Rather than argue the same tired arguments that have lost across the country and which were insufficient to merit certiorari in the Fourth, Seventh, and Tenth Circuits, Idaho argued that it was the reasoning used in the Ninth, rather than it’s conclusion, which should be reconsidered.

On Tuesday, the Ninth Circuit included in its ruling:

Without the benefit of our decision in SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014), reh’g en banc denied, 759 F.3d 990 (9th Cir. 2014), the Sevcik district court applied rational basis review and upheld Nevada’s laws. Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012). After we decided SmithKline, the Latta district court concluded that heightened scrutiny applied to Idaho’s laws because they discriminated based on sexual orientation, and invalidated them. Latta v. Otter, No. 1:13-CV-00482-CWD, 2014 WL 1909999, at *14–18 (D. Idaho May 13, 2014). 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.

When the Ninth Circuit decided SmithKline, Abbott Labs chose not to appeal the ruling, specifically because it was their wish to leave the section on heightened scrutiny as precedent and not subject it to potential loss at the Supreme Court. So this assertion by the Ninth has not been considered by the higher court.

Which brings the denial of extended stay by the Supreme Court into a different light. It may be that SCOTUS did not predict any likelihood of Idaho’s ban being upheld irrespective of the degree of scrutiny. Or it may mean that SCOTUS sees no likelihood of the Ninth’s application of heightened scrutiny being reversed.

Kennedy lifts Idaho stay

Timothy Kincaid

October 10th, 2014

marriage 2014

Dark Purple – states with marriage equality
Light Purple – states in which the circuit court has ruled same-sex marriage bans to be a violation of the US Constitution

On Wednesday, Justice Kennedy temporarily stayed the Ninth Circuit’s ruling overturning Idaho’s ban on same-sex marriages. He allowed Governor Butch Otter time to submit reasoning on why a permanent stay should be applied while the Butch Otter appealed the Ninth’s decision to the Ninth en banc, to the Supreme Court, or to the almighty power of an angry and avenging deity.

The Butch Otter argued that the Ninth incorrectly applied heightened scrutiny and that Baker v. Nelson holds precedent and that he damn well didn’t like the ruling.

Kennedy said, “Meh”. The temporary stay has been lifted. Marriage equality comes to Idaho.

What a Mess (Updated)

Jim Burroway

October 8th, 2014

The Ninth Circuit really stepped into it when, to everyone’s surprise, it preemptively issued a mandate requiring Idaho and Nevada to begin issuing marriage licenses to same-sex couples after ruling that those marriage bans were unconstitutional. As I understand it, mandates like this are typically a last resort act, issued after the winning parties went back home and were unsuccessful in getting the legal entities there to implement the Appeals Court ruling.

In Idaho’s case, that would have meant going to Ninth Circuit panel that issued the stay and ask it to rescind it. That would have given lawyers for Idaho’s Gov. Butch Otter a chance to have their day in court, lodge their intention to appeal and argue that the stay should remain in effect. Otter wasn’t given that day in court, and so it’s pretty easy to see why Kennedy would have slapped the Ninth for short-circuiting the process and overturn the mandate.

As for Nevada, the ordinary path would have been for lawyers for same-sex couples to go back to Federal District Judge Robert C. Jones and petition him to order state officials to begin granting marriage licenses to same-sex couples. Jones had upheld that state’s ban on same-sex marriage in 2012. Jones ordinarily would have had two options. He could have issued the order, or he could have refused to do so. The second option would have seemed unlikely, since the State of Nevada had already said that they weren’t going appeal. But if he had refused to issue such an order, then that ordinary path would have had those lawyers go back to the Ninth to ask for a mandate.

But because the Ninth issued its preemptive mandate on its own initiative, county clerks across Nevada were preparing to begin issuing marriage licenses this morning. But then, Idaho Gov. Otter’s lawyers went to Kennedy to get the mandate overturned, and since the Ninth Circuit combined the two cases into a single mandate “for purposes of disposition,” Kennedy’s overturning of Idaho’s mandate also meant that he overturned Nevada’s mandate as well. Which means that Nevada same-sex couples this morning suddenly found themselves subject to the whims of an Idaho governor, all because the Ninth Circuit’s brash action — and because the Ninth found it too bothersome to type up two separate papers instead of one.

So now the Nevada lawyers were back doing what they ordinarily would have done anyway. They went to Judge Jones and asked him to enforce the Ninth Circuit’s ruling overturning his 2012 ruling and striking down Nevada’s marriage equality ban. Remember those two options I said he had? I left out a third option, the one that he ultimately took: he recused himself this morning and referred the case to the district’s chief judge for reassignment.

Update: Marriages are back on in Nevada.

Justice Kennedy Halts Marriages In Idaho (And Maybe Nevada)

Jim Burroway

October 8th, 2014

In a very surprising move in a week of surprises, Justice Anthony Kennedy stayed (PDF: 40KB/1 page) the Ninth Circuit Court of Appeals’ mandate requiring Idaho to begin granting marriage licenses to same-sex couples. The stay is “pending further order of the undersigned or of the Court” and orders lawyers for same-sex couples to file a response by 5:00 Thursday.

There are a couple of things to think about here. Narrowly, there’s some speculation about whether there was a procedural error when the Ninth combined the Idaho and Nevada cases when it issued its mandate requiring the two states to begin issuing marriage licenses. The fact that Kennedy’s order referenced both the Nevada and Idaho cases may be a possible hint. But more broadly, while the Supreme Court on Monday decided to turn away cases in five states, it doesn’t mean that a sixth state doesn’t still have a right to appeal. Who knows? Maybe Idaho just might have those compelling arguments that the other cases somehow lacked. I doubt it, but it’s still their legal right to give it a shot.

While Kennedy acted on a request from Idaho, it’s unclear whether his order affects marriages in Nevada as well. Nevada already announced that they would not be seeking an appeal.

Idaho on temporary stay

Timothy Kincaid

October 8th, 2014

While Nevada has joyfully cued the violins and baked the cakes, Governor Butch Otter in Nevada Idaho seems to have won a delay in his state’s implementation of marriage equality. The Butch Otter has appealed to the United States Supreme Court and the justice responsible for granting stay in the Ninth Circuit, Anthony Kennedy, has so granted. (Reuters)

U.S. Supreme Court Justice Anthony Kennedy on Wednesday temporarily blocked an appeals court ruling that struck down Idaho’s gay marriage ban.

The brief order issued by the court said that gay marriage supporters should file a response to the state’s emergency request by 5 p.m. EDT (2100 GMT) on Thursday. The court will then decide whether to issue a more permanent stay. In the meantime, gay marriages in Idaho will not be able to proceed.

This may be but a formality until such time as briefs are filed and reviewed. And while this is disappointing and infuriating, part of our legal system is to allow all parties the right to be heard.

UPDATE: I should point out that the stay (should it be granted further life than tomorrow at 5 pm) is until the Ninth Circuit rules en banc – a larger group of judges – on the matter.

Idaho Marriages May Begin Today But Governor Seeks Stay

Jim Burroway

October 8th, 2014

Ada County (Boise) Clerk Chris Rich told the Idaho Statesman that he’s ready to begin issuing marriage licenses to same-sex couples when the courthouse opens at 8 a.m. MDT. Rich said that he was acting on instructions from the Idaho Attorney General’s office, which told him to continue issuing licenses “until he hears otherwise.”

That was last night. Early this morning, Idaho Gov. Butch Otter filed a motion with the Ninth Circuit Court of Appeals seeking a stay of the court’s ruling that struck down Idaho’s marriage equality ban as unconstitutional:

“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.

Whether marriages will actually begin in Idaho this morning is anybody’s guess right now.

The Best Line In All of Legaldom

Jim Burroway

October 7th, 2014

The Ninth Circuit’s ruling (PDF: 238 KB/43 pages) that struck down marriage bans in Idaho and Nevada included this gem on page 21:

Same-sex marriage, Governor Otter asserts, is part of a shift towards a consent-based, personal relationship model of marriage, which is more adultcentric and less child-centric.12

No, that sentence isn’t it. It’s that tiny little 12 at the end of it, referring to the best damn footnote in all of legaldom:

12 He also states, in conclusory fashion, that allowing same-sex marriage will lead opposite-sex couples to abuse alcohol and drugs, engage in extramarital affairs, take on demanding work schedules, and participate in time-consuming hobbies. We seriously doubt that allowing committed same-sex couples to settle down in legally recognized marriages will drive opposite-sex couples to sex, drugs, and rock-and-roll.

Ninth Circuit adds Nevada and Idaho before the dust even settled

Timothy Kincaid

October 7th, 2014

marriage 2014

As a consequence of yesterday’s denial of certiorari from the Supreme Court on marriage equality cases, we’ve all predicted that West Virginia, North Carolina, South Carolina, Wyoming, and Kansas would be next. But before judges could even consider, much less issue, rulings on the unconstitutionality of anti-gay marriage bans in those states, the Ninth Circuit has ruled on two more.

Idaho and Nevada have now been added to the marriage equality total.

This is not exactly a shock. After observing the questions presented at the appeals hearing, all pundits agreed that the conclusion was foregone.

Idaho’s ruling overturning their ban – which was fiercely opposed by Gov. Butch Otter (tee-hee) – was upheld. Nevada’s ruling allowing the ban – which was not given support by the state – was reversed.

It is highly unlikely that a stay will be issued. Same sex couples in those states (and casino chapels and Elvis impersonators) can now rejoice.

So now added to the ‘just until the papers are filed’ category are:


(and probably Guam and the Northern Mariana Islands)

Ninth Circuit Temporarily Blocks Idaho Marriages

Jim Burroway

May 15th, 2014

The Ninth Circuit Court of Appeals has issued a temporary stay of a lower court’s ruling that found Idaho’s ban on same-sex marriages unconstitutional. The lower courts ruling was set to go into effect on Friday at 9:00 a.m., but Gov. Butch Otter filed an emergency request with the Ninth Circuit asking for a stay until the pending appeal is completed. The Ninth Circuit has partially granted that request:

In a one-sentence order, a three-judge panel of the 9th Circuit Court of Appeals wrote, “The district court’s May 13, 2014 order is temporarily stayed pending this court’s disposition of appellants’ emergency motions for a stay pending appeal.”

In other words, the three-panel court (consisting of Judges Edward Leavy, Consuelo Callahan, and Andrew Hurwitz) have decided to issue a temporary stay to give them time to decide whether to keep the stay in place throughout the appeals process.

Judge Denies Idaho Gov’s Request for Marriage Ruling Stay

Jim Burroway

May 14th, 2014

U.S. Magistrate Judge Candy W. Dale, who yesterday ruled that Idaho’s state constitutional amendment banning same-sex marriage violates the U.S. Constitution, has denied a request by Gov. Butch Otter (stop that, you guys!) to stay the ruling pending a planned appeal to the Ninth Circuit Court of Appeals. Idaho Attorney General Lawrence Wasden and Gov. Otter are expected to file an emergency motion with the Ninth Circuit asking for a stay pending an appeal. Otter and Wasden are optimistic they can get a stay somewhere:

In the request to Dale, Otter’s attorneys said they were convinced that if the judge wouldn’t issue a stay, the 9th Circuit or Supreme Court would.

“That conviction is based on the fact that the Ninth Circuit granted such a stay in the California same-sex marriage’ case, the Sixth district did the same in the Michigan same-sex marriage case, and the United States Supreme Court did the same in the Utah same-sex marriage case,” Otter’s attorneys wrote.

If the Ninth Circuit denies their motion for a stay and the U.S. Supreme Court doesn’t intervene, then same-sex marriages will become legal in Idaho at 9:00 a.m. Friday.


After the ruling, the Idaho Republican Party issued a statement reaffirming the organization’s stance against same-sex marriage, and contending that the Tenth Amendment gives states the power to regulate and define marriage.

“The disintegration of marriage will lead to the disintegration of our society,” Idaho GOP Chairman Barry Peterson said in a prepared statement.

That’s Right. Idaho.

Jim Burroway

May 13th, 2014

As Timothy already mentioned, U.S. Magistrate Judge Candy Dale has ruled Idaho’s ban on gay marriage is unconstitutional. Judge Dale’s order goes into effect on Friday, May 16 at 9:00 a.m. Her 57-page ruling his here (PDF: 235KB/57 pages). You know it’s going to be a good one when she leads off with this on the front cover:


It is precisely because the issue raised by this case touches the heart of what makes individuals what they are that we should be especially sensitive to the rights of those whose choices upset the majority.

— The Honorable Harry Blackmun 1


1 Bowers v. Hardwick, 478 U.S. 186, 211 (1986) (Blackmun, J., dissenting), overruled by Lawrence v. Texas, 539 U.S. 558 (2003).

She gets right to the heart of one of the main arguments put forward by marriage equality opponents. “This case asks a basic and enduring question about the essence of American government: Whether the will of the majority, based as it often is on sincere beliefs and democratic consensus, may trump the rights of a minority.”

Although 17 states legally recognize same-sex marriages, Idaho is one of many states that has chosen the opposite course. Like courts presiding over similar cases across the country, the Court must examine whether Idaho’s chosen course is constitutional. Significantly, the Supreme Court of the United States recently held that the federal government cannot constitutionally define marriage as a legal union between one man and one woman. United States v. Windsor, 133 S. Ct. 2675 (2013). Writing for the majority in Windsor, Justice Kennedy reasoned the “purpose and effect” of the federal  man-woman marriage definition was “to disparage and injure” legally married same-sex couples in derogation of the liberty, due process, and equal protection guaranteed by the Fifth Amendment to the United States Constitution. Id. at 2696. Here, the Court considers a related but distinct question: Do Idaho’s Marriage Laws deny Plaintiffs the due process or equal protection guaranteed by the Fourteenth Amendment to the United States Constitution?

After careful consideration, the Court finds Idaho’s Marriage Laws unconstitutional. This conclusion reaffirms a longstanding maxim underlying our system of government—a state’s broad authority to regulate matters of state concern does not include the power to violate an individual’s protected constitutional rights. See, e.g., id. at 2691 (“State laws defining and regulating marriage, of course, must respect the constitutional rights of persons. . . .”). Idaho’s Marriage Laws deny its gay and lesbian citizens the fundamental right to marry and relegate their families to a stigmatized, second-class status without sufficient reason for doing so. These laws do not withstand any applicable level of constitutional scrutiny.

Judge Dale later went further on the question of scrutiny:

With respect to Plaintiffs’ due process claim, Idaho’s Marriage Laws are subject to strict scrutiny because they infringe upon Plaintiffs’ fundamental right to marry. Under the Equal Protection Clause, Idaho’s Marriage Laws are subject to heightened scrutiny because they intentionally discriminate on the basis of sexual orientation. The Court finds that Idaho’s Marriage Laws do not survive any applicable level of constitutional scrutiny and therefore violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution.

Her acceptance of heightened scrutiny was based on the analysis made by the Ninth Circuit Court of Appeals in the SmithKline case, which “establishes a broadly applicable equal protection principle” for gay people. The Ninth Circuit, in turn, based their decision to apply heightened scrutiny on last summer’s Windsor decision striking down Section 3 of the Defense of Marriage Act. She wrote:

Apart from SmithKline, Plaintiffs also contend Idaho’s Marriage Laws are subject to heightened scrutiny because classifications based on sexual orientation are constitutionally suspect. The Court need not dissect this argument because the Supreme Court has accepted it by implication. If homosexuals are not a suspect or quasi-suspect class, the Supreme Court would have applied rational basis scrutiny in Windsor. But, as recognized in SmithKline, the Supreme Court applied heightened scrutiny. Indeed, the Supreme Court affirmed the Second Circuit without questioning (or even discussing) the lower court’s express holding… The Second Circuit’s holding was both approved and essential to the scrutiny the Supreme Court applied in Windsor. Had the Supreme Court disagreed with the Second Circuit, it would not have applied heightened scrutiny. It is not necessary to repeat the Second Circuit’s analysis, for that analysis is implicit in both Windsor and SmithKline.

Because Idaho’s Marriage Laws impermissibly infringe on Plaintiffs’ fundamental right to marry, the Laws are subject to strict due process and equal protection scrutiny. But SmithKline directs the Court to apply heightened equal protection scrutiny to laws that discriminate on the basis of sexual orientation. Idaho’s Marriage Laws do not withstand this heightened scrutiny.

Judge Dale spent considerable effort to review the place that marriage has in the constellation of civil and human rights, as well as prior court rulings that specifically addressed the rights that gays and lesbians are entitled to under the law:

More recently, the Supreme Court confirmed that gay and lesbian individuals do not forfeit their constitutional liberties simply because of their sexual orientation. Lawrence, 539 U.S. 558. The Court observed that “our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.” Id. at 574. Emphasizing that these are personal rights, the Court concluded “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Id. (emphasis added). And, less than one year ago, the Supreme Court struck down the federal Defense of Marriage Act’s man-woman definition of marriage because it amounted to unconstitutional “interference with the equal dignity of same-sex marriages” recognized by some states. Windsor, 133 S. Ct. at 2693. The message of these cases is unmistakable—all individuals have a fundamental right to marry

…Finally, and most critically, the Supreme Court’s marriage cases demonstrate that the right to marry is an individual right, belonging to all. See Lawrence, 539 U.S. at 574. If every individual enjoys a constitutional right to marry, what is the substance of that right for gay or lesbian individuals who cannot marry their partners of choice? Traditional man-woman marriage is no answer, as this would suggest that gays and lesbians can switch off their sexual orientation and choose to be content with the universe of opposite-sex partners approved by the State. Defendants offer no other answer.

In their effort to avoid the question, Defendants commit the same analytical mistake as the majority in Bowers v. Hardwick, the decision that declined to “announce a fundamental right to engage in homosexual sodomy.” 478 U.S. 186, 191 (1986), overruled by Lawrence, 539 U.S. at 577. The crucial mistake in Bowers was that the majority narrowed and thus “fail[ed] to appreciate the extent of the liberty at stake.” Lawrence, 539 U.S. at 567. For that reason, the Supreme Court in Lawrence concluded “Bowers was not correct when it was decided, and it is not correct today.” Id. at 577. Lawrence instructs not only that gay and lesbian individuals enjoy the same fundamental rights to make intimate personal choices as heterosexual individuals enjoy, but that judicial attempts to parse those rights out of existence will be met with a harsh rebuke.

She dispensed with the “what’s best for children” argument raised by the defendants:

The best that can be said for Defendants’ position is that some social scientists quibble with the prevailing consensus that the children of same-sex parents, on average, fare no better or worse than the children of opposite-sex parents. (Id. ¶¶ 35-41.) But the Court need not—even if it could at the summary judgment stage—resolve this sociological debate. The parties’ debate over the scientific literature distracts from the essential inquiry into the logical link between child welfare and Idaho’s wholesale prohibition of same-sex marriage. That link is faulty for at least four reasons.

First, civil marriage in Idaho is and has long been a designedly consent-based institution. The law speaks of marriage as a “civil contract . . . to which the consent of parties capable of making it is necessary.” Idaho Code 32-201. True, “throughout human history and across many cultures, marriage has been viewed as an exclusively opposite-sex institution and as one inextricably linked to procreation and biological kinship.” Windsor, 133 S. Ct. at 2718 (Alito, J., dissenting). But Idaho law is wholly indifferent to whether a heterosexual couple wants to marry because they share this vision or simply seek a tax break. That such a crass objective would be sufficient to obtain a marriage license does not mean marriage is a cheap convenience. Instead, it means that the value of marriage derives from a place beyond the law’s reach.  Important as the child-centered vision of marriage is, Idaho’s consent-based marriage regime does not require heterosexual couples to accept or follow this norm….

Second, Idaho does not condition marriage licenses or marital benefits on heterosexual couples’ ability or desire to have children. No heterosexual couple would be denied the right to marry for failure to demonstrate the intent to procreate…

Third, Idaho does not withhold marriage licenses from heterosexual couples who might be, or are, non-optimal parents. Under Idaho law, everyone from multiple divorcees, “dead-beat dads,” see Zablocki, 434 U.S. 374, to prison inmates, see Turner v. Safley, 482 U.S. 78 (1987), may marry, as long as they marry someone of the opposite sex. …

Finally, and most importantly, the Governor’s child welfare rationales disregard the welfare of children with same-sex parents. It is undisputed that “poverty and social isolation [are] associated with maladjustment [in children], and adequate resources support[] healthy adjustment.” (Lamb Dec., Dkt. 47 ¶ 18.c.) It is also clear that “[m]arriage can yield important benefits for children and families, including state and federal legal protections, economic resources, family stability, and social legitimacy. These benefits are equally advantageous for children and adolescents in families headed by same-sex and different-sex couples.” (Id. ¶ 48.). …. In this most glaring regard, Idaho’s Marriage Laws fail to advance the State’s interest because they withhold legal, financial, and social benefits from the very group they purportedly protect—children.

And finally, she addressed the “religious liberty” question:

Finally, Governor Otter argues that Idaho’s Marriage Laws should be upheld because they serve the related goals of supporting religious liberty, avoiding the potential  for religion-centered conflicts, and affirming a prevailing social consensus on marriage. …

The Governor’s argument concerning religious liberty is myopic. No doubt many faiths around the world and in Idaho have longstanding traditions of man-woman marriage rooted in scripture. But not all religions share the view that opposite-sex marriage is a theological imperative. In fact, some of the Plaintiffs actively worship in faiths that recognize and support their unions. (S. Watsen Dec. ¶ 13, Dkt. 51.) To the extent Governor Otter argues that Idaho has a legitimate interest in validating a particular religious view of marriage, that argument blithely disregards the religious liberty of congregations active in Idaho. “By recognizing the right to marry a partner of the same sex, the State allows these groups the freedom to practice their religious beliefs without mandating that other groups must adopt similar practices.” Kitchen v. Herbert, 961 F.Supp.2d 1181, 1214 (D. Utah 2013).

Likewise, a desire to protect or maintain a particular social consensus does not withstand constitutional scrutiny. “A citizen’s constitutional rights can hardly be infringed simply because a majority of the people choose that it be.” Lucas v. Forty-Fourth Gen. Assembly of Colo., 377 U.S. 713, 736-37 (1964). … Rather, the dispositive principle in this case is that “fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943). The Supreme Court has endorsed this principle again and again. …

This principle resonates today, as 10 federal courts across the country have in recent months reached similar conclusions on the very issues present in this case. Considering many of the same arguments and much of the same law, each of these courts concluded that state laws prohibiting or refusing to recognize same-sex marriage fail to rationally advance legitimate state interests. This judicial consensus was forged from each court’s independent analysis of Supreme Court cases extending from Loving through Romer, Lawrence, and Windsor. The logic of these precedents virtually compels the conclusion that same-sex and opposite-sex couples deserve equal dignity when they seek the benefits and responsibilities of civil marriage. Because Idaho’s Marriage Laws do not withstand any applicable form of constitutional scrutiny, the Court finds they violate the Fourteenth Amendment to the United States Constitution.

Judge Dale ended with this observation:

The Fourteenth Amendment guarantees of due process and equal protection lie at the core of our constitutional system. While the Supreme Court has not expressly decided the issues of this case, it has over the decades marked the path that leads to today’s decision. “[T]he history of our Constitution . . . is the story of the extension of constitutional rights and protections to people once ignored or excluded.” United States v. Virginia, 518 U.S. 515, 557 (1996). Slow as the march toward equality may seem, it is never in vain.


And Idaho

Timothy Kincaid

May 13th, 2014

Idaho Statesman

U.S. Magistrate Judge Candy Dale has ruled Idaho’s ban on gay marriage is unconstitutional.

In her 57-page decision, Dale stated, “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.”

And Idaho makes… ummm, I have no idea what number this one is.

Update: You can read some choice excerpts from Judge Dale’s smack-down opinion here.

Is Arizona a Turning Point?

Jim Burroway

February 27th, 2014

It would appear that the outcry over Arizona’s license-to-discriminate bill that was finally vetoed by Gov. Jan Brewer last night may have reached something of a high water mark. Major companies, business group, professional organizations, and major league sports all came out with strong statements denouncing the bill in the moments leading up to Brewer’s veto. Typical was this one from Yelp’s CEO Jeremy Stoppelman:

SB 1062 would serve to create an environment where consumers would not know how they would be treated – or whether they would even be served – when they patronize a business. This bill goes against the rule that every great business subscribes to, which is that the customer is always right. It will not only be bad for customers, but also bad for local business in the state. I also believe that it would be in consumers’ interests to be made aware of businesses within the state that did engage in discriminatory behavior. Since early 2010, Yelp has hired over 650 employees in Arizona. Over the next few years, we hope to hire hundreds more. It would be unconscionable for the state to encourage discrimination against any of them.

Arizona joins three other states in putting an end to their license-to-discriminate bills in just the past twenty-four hours:

  • Sponsors of Ohio’s license-to-discriminate bill withdrew their support yesterday. Moments later, the chairman of the House Judiciary Committee announced that the bill was dead.
  •  The Mississippi House of Representatives Civil Subcommittee late yesterday voted to strike almost all of the provisions of their license-to-discriminate bill, leaving only a provision adding “In God We Trust” to the state seal. This move came after the state Senate gave its unanimous approval in January.
  • Florida Gov. Rick Scott announced yesterday that he will veto a proposed license-to-discriminate bill if it reaches his desk. Earlier that day, he had refused to address the question during an interview on MSNBC.

Over the past several weeks, license-to-discriminate bills have been defeated or withdrawn in Colorado, Kansas, Maine, Tennessee, and Utah. But we’re not out of the woods yet. Similar bills are still working their way through Idaho, Missouri, South Dakota, and Georgia, where Atlanta-based Delta Airlines has announced its opposition. The Idaho bill was returned to a House committee last week, with the sponsor saying he wants to “find the right language.” In addition, there’s a push to put a similar measure on the ballot in Oregon in November.


Battered and Bruised

Jim Burroway

March 7th, 2012

Romney hangs in there again like a punch-drunk fighter staggering toward the finish of the sixth round (ooh look at me, I’m using a sports metaphor), picking up wins in six of the states up for grabs yesterday including a very hotly contested Ohio, where Santorum very nearly pulled off an upset. Romney did best in his home state of Massachusetts, and he did well in neighboring Vermont. He also did very well in the Idaho caucuses, where 23% of spudsters are fellow Mormons. There were no exit polls in Idaho, but in Arizona where Mormons made up 14% of the vote, they broke 96-4 for Romney on Feb 28.

Romney also did very well where he had very little actual competitors (Virginia, where Santorum and Gingrich weren’t on the ballot). Which is to say that he has done very well where he had the home field advantage (as did Gingrich) or where his most potent opponent was missing. Or Alaska.

Romney 32% 26% 62% 72% 24%
Santorum 29% 20% 18% 12% 40%
Gingrich 24% 47% 2% 5% 8%
Paul 14% 6% 18% 10% 28%
Romney 38% 28% 28% 40% 60%
Santorum 37% 34% 37% 24%
Gingrich 15% 27% 24% 8%
Paul 9% 10% 9% 25% 40%

Which goes to day that Romney is still having trouble closing the deal with Santorum racking up rack up wins in the more conservative middle bits of the continent. In Oklahoma, Santorum’s first place finish came in spite of Sen. Tom Coburn’s endorsement of Romney, while Romney actually came in third in North Dakota and just barely avoided that same fate in Oklahoma. And in Ohio, where Romney poured massive amounts of dollars into the race, he only managed to pull out a 1% win over Santorum in the bellwether state. But even there, he he lost among Evangelical, blue collar and rural voters, but won among those who were 50 and older.

But here’s the stat I find most telling: When Ohio voters were asked whether they’d support Romney in the general election regardless of who they voted for in the primary, 36% said they would not be satisfied with a Romney candidacy, versus 33% who said they’d reject a Santorum candidacy. In other words, Ohio Republicans are less willing to settle for Romney than Santorum.

Romney 404
Santorum 165
Gingrich 106
Paul 66

But this is a race for delegates, not popular votes. And whatever weaknesses that exist in Romney’s popular support within the GOP, he’s still by far the frontrunner in the delegate race according to CNN’s count, with more delegates than his opponents combined. But at only about half way through the primaries, Romney’s still a long way from the 1,144 needed to secure the nomination. Kansas, US Virgin Islands and Guam hold caucuses next week, followed by primaries in Alabama, Mississippi and Hawaii the week after that. Which means that for Romney, the long slog continues. But for the other candidates in the field, the slog is even longer.

The idea behind Super Tuesday was to bring the nomination process into clearer focus. The only thing made clear yesterday is that GOP voters would still prefer another candidates. But that’s not the choice available to them. Which means that Romney will almost certainly be the nominee when all is said and done, but what is said and done before then will continue to be the story. As Ezra Klein at the Washington Post put it, “For three guys who profess to not like the media very much, Mitt Romney, Rick Santorum, and Newt Gingrich are really making all our dreams of a long, unpredictable primary come true.”

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