The fight on behalf of gay marriage in Idaho may have gotten a little messier.
A federal judge has been asked to discount Idaho Attorney General Lawrence Wasden from four women's challenge to the state's gay marriage ban, enacted in 2006, the Associated Press reports.
At issue is what resources the State of Idaho may use to defend its laws against legal challenges. Deborah Ferguson, the couples' attorney, told the AP that defendants Gov. C.L. "Butch" Otter and Ada County Clerk Chris Rich already stand for the state, and that Wasden isn't representing the state in a capacity distinct from Otter or Rich.
"It is unusual to have the state intervene when its interests are already represented through the governor," she told the AP.
Wasden contends that where the state's laws require defense, it's his job to intervene.
"I have an obligation to defend the Constitution and the statutes of Idaho, and that's what we intend to do," he said.
The women involved in the lawsuit are Sue Latta and Traci Ehlers, Lori and Sharene Watsen, Sheila Robertson and Andrea Altmayer, and Amber Beierle and Rachael Robertson. Their suit argues that Idaho has recognized marriages from other states that were illegal under Idaho law—like common law marriages or unions between first cousins—but has discriminated against them by not recognizing their same-sex marriages.
Discrimination, they argue, has come in the form of more difficult state tax filings, which includes a ban against them filing joint Idaho tax returns and a chance of financial penalties.
Despite the recent repeal of Don’t Ask Don’t Tell, the policy remains in effect for several more months at least, leaving an estimated 65,000 active duty military service members still vulnerable for discharge for being gay, lesbian or bisexual.
One Idaho soldier now serving in Afghanistan as a combat medic is risking more than her life for her country. She is risking discharge because she is also a lesbian.
To protect her identity Citydesk will refer to her only as “Savanna," which is not her real name.
"My time in service has been rough," said Savanna. “I was aware of the DADT policy, but I don’t believe now that any soldier who DADT directly affects really understands how difficult, mentally and emotionally, hiding their true identity will be until it’s too late to turn back.”
“During basic training,” Savanna recounted, “a small group of lesbians were unfairly blamed for being 'too close’ to who was obviously a lesbian drill sergeant. I am thankful to have had a First Sergeant who stood for what he believed was right. He pulled each of the trainees facing the indiscretion aside and helped us to send home anything that could be perceived to be against the DADT policy (letters, pictures etc.) before the investigation began."
“I am willing to die for my country. Who I go home to at night and who I love should hold no substance,” she said.
Savanna said she refuses to let the Army make her uncomfortable with who she is, but still worries that there are still people “out to get gay and lesbian soldiers,” even though she said most people don’t care.
The chatter in her unit is about how the repeal will be implemented particularly if, and how, facilities like showers or living quarters might change.
“The way I see it,' said Savanna, "If we can afford the conflicts and wars our Commander-in-Chief signs us up for, we [would] have no problem investing in some shower curtains to further privacy.”
Savanna pointed out that all DADT does for her is allow her to be open about her sexual orientation.
“What I would give to marry the woman I’m with and move her to my duty station as my spouse,” she said.
“I have been blessed to share this struggle with other soldiers who face the same injustice.”
Born on Wright-Patterson A.F.B. in Ohio where his father was a navigator and his mother a nurse, Lt. Col. Victor Fehrenbach was essentially born to serve.
After a career in the Air Force as a combat pilot, Fehrenbach has been grounded and sitting behind a desk for the last two and a half years since he was outed as gay by a civilian. In Sept. 2008, under Don't Ask Don't Tell, his commander recommended him for separation from the U.S. Air Force.
On Dec. 22, President Obama signed the repeal of DADT into law. Fehrenbach, who's been stationed at Mountain Home A.F.B. since 2007, talked to Citydesk about that historic change.
The day of the Senate vote, Fehrenbach was in the Senate chamber.
“I was counting on my fingers as we went,” said Fehrenbach. Suspecting 61 votes and perhaps some surprises, he knew it was in the bag when Sen. George Voinovich (R-OH) voted yes.
“I knew then it would defiinitely pass the 60 mark, and I knew it was over.” The final vote was 65 to 31.
Fehrenbach described the last several weeks as an “intense emotional roller coaster.”
“They kept citing process, procedure, and parliamentary and political gamesmanship. I was watching saying, ‘I’m not a process, I’m not a procedure, I’m a person and they are playing with my life. Then when I heard Sen. [John] McCain Saturday on the Senate floor say this is part of some liberal agenda, again I got frustrated. I’m not an agenda.
“This isn’t a gay rights agenda for me, this is not a liberal agenda, this is my life. I did not do this to further some kind of agenda, I did this because it was the right thing to do and at the end of the day it affects people's lives.”
Even after the vote Fehrenbach said it didn’t feel real.
“The very end of it was the most poetic part for me, when he put his hand on the bill and said, ‘This is done.’ It was almost as if he were answering his promise to me.”
Fehrenbach learned last summer that the Air Force was moving forward with his possible discharge under DADT and his attorneys filed an injunction to stop it. His case has been in limbo ever since and for now, his fate remains uncertain.
"They could go to trial but that could take 18 to 24 months and guess what? I’m eligible for retirement in Sept. 2011.”
Asked if he would reconsider retirement now that DADT has been repealed, “I am ready to move on,” said Fehrenbach. “This has been a rough two and a half years. I am actually ready to live the life I wasn’t able to have for 18 years.
“I sacrificed a lot of personal relationships, not just intimate relationships but friendships. Because of this law, I couldn’t even have close friends that were gay.”
Wednesday, Dec. 22, 2010 will go down in history as a pivotal and unprecedented milestone in the struggle for equality for lesbian gay, bisexual and transgender Americans.
“This is a very good day,” said President Obama, in a moving 20 minute speech before he signed into law the Repeal of Don’t Ask Don’t Tell,” that for 17 years discriminated against gay members of the United States Military.
It's estimated that more than 14,000 American soldiers lost their jobs over the last 17 years because they were gay. Lt. Col. Victor Fehrenbach of Mountain Home Air Force Base was afraid that he would be next. Monday night, he appears on national television to cheer the end of the Pentagon's "don't ask, don't tell" policy.
But this past weekend's Congressional action marks the beginning of the end of the formal intolerance.
There is still work to be done. The vote does not end the policy outright; that comes after the Obama administration certifies that it has prepared the armed services for the change, after a minimum of 60 days.
Fehrenbach will be the guest on Monday night's live edition of The Rachel Maddow Show, 7 p.m. on MSNBC. Fehrenbach will appear with three other gay service members before a live audience at New York City's 92nd Street YMCA. On Tuesday, Dec. 21, he'll be at special ceremony at the U.S. Capitol and he says he hopes to attend the White House signing ceremony.
An Idaho jurist will be part of a three-judge panel next week, scheduled to hear arguments in the legal battle over California's ban on same-sex marriage.
The panel, announced Monday, includes N. Randy Smith, a federal judge on the U.S. Court of Appeals for the Ninth Circuit. Smith was associate and assistant general counsel for the J.R. Simplot Company, professor at Boise State and Chairman of the Idaho Republican Party in the 1990s. Smith was named to the federal bench by President George W. Bush.
Also on the panel will be Judge Stephen Reinhardt of California—dubbed the "lion of the left" for a career of liberal rulings—and Judge Michael Daly Hawkins of Arizona, considered a moderate.
The Ninth Circuit will hear arguments beginning Monday, Dec. 6, in the appeal of a federal judge's ruling this summer striking down Proposition 8, the voter-approved ban on same-sex marriage.
Lt. Col. Victor Fehrenbach filed papers in Idaho federal court, requesting a temporary order blocking his possible discharge under the "don't ask, don't tell policy."
In 2008, Fehrenbach was accused of violating the military's ban on homosexuality and placed on desk duty at Mountain Home Air Force Base. Within weeks, a charge of sexual assault was dismissed for lack of evidence. But by then, the Air Force had begun a new file, investigating the decorated flight officer's sexuality. Fehrenbach says he has reason to believe that he will soon be discharged.
On Wednesday, Fehrenbach's lawyers filed papers in Boise, saying that a discharge would violate the airman's rights and cause him irreparable harm.
President Obama has called for an end to the ban, and Adm. Mike Mullen, chairman of the Joint chiefs of staff agreed that the "don't ask, don't tell" policy should be halted. But in the meantime, gay service members continue to face investigations and possible discharge.
Capt. Derek White, an Air Force spokesman, said that Fehrenbach's case was under final review by the Air Force secretary, Michael Donley, and that until a final decision was reached, the Air Force would have no comment.
Fehrenbach will soon complete 20 years of service to the Air Force. He was deployed six times as a weapons system officer. He flew combat missions over Kosovo, Iraq and Afghanistan.
U.S District Court Judge Joseph L. Tauro ruled Thursday that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional.
Enacted in 1996 DOMA defines “marriage” and “spouse,” for purposes of federal law, to include only the union of one man and one woman.
The Massachusetts plaintiffs, seven same-sex couples and three widowers, claimed that because of DOMA, their families were denied critically important rights and protections that interfered with the state's authority to regulate marriage.
Massachusetts Attorney General Spokeswoman, Amie Breton, told Boise Weekly the decision applies only to Massachusetts and any appeals would be up to the Obama administration.
“Because there was no stay in the law suit,” said Breton, “starting today immediately effective same-sex wedded couples in Massachusetts are eligible for federal benefits. That means this decision is binding for the federal agencies.”
For states like Idaho with constitutional bans, the Massachusetts decision appears to have no bearing.
Idaho Attorney General spokesperson, Bob Cooper said his office has not yet seen the decision but based on news accounts said:
“On its face it would appear this is not going to have any impact on the state of the law in Idaho. The decision is not inconsistent with the Idaho constitutional provision in which the state has defined marriage. From that perspective, it wouldn’t matter what a particular state’s definition of marriage is this ruling would uphold the authority of the states to define marriage.”
Tauro stated: “There are at least, a total of 1,138 federal statutory provisions classified to the United States Code in which marital status is a factor.”
Same-sex couples legally married or not, except in Massachusetts, are denied the right to file joint tax returns, claim Social Security survivor benefits, take family medical leave, as well as take gift and estate tax exemptions, have joint workplace health care and collect a spouse's retirement.
“The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid,” wrote Judge Tauro.
Lt. Col. Victor Fehrenbach, the Mountain Home Air Force Pilot who faces an honorable discharge for being gay, shook President Barack Obama's hand at a recent Gay Pride event at the White House.
Fehrehnbach told KTVB News in Boise:
"I sort of made a b-line to him and introduced myself and he had that look on his face like he knew who I was. I think there were people who told him I would be there. I introduced myself, I said I'm being discharged under 'don't ask/don't tell' and the situation for me was urgent and I need your help. And, he looked me directly in the eye and said, 'we're going to get this done'.
Defense Secretary Robert Gates has indicated that soldiers like Fehrenbach may be allowed to continue to serve until the Administration works out a new policy to replace Dont' Ask Don't Tell, according to the Air Force Times. Gates said there could be exceptions to enforcing the policy if whomever outed the soldier had a chip on his shoulder.
“Do we need to be driven ... to take action on somebody, if we get that information from somebody who may have vengeance in mind or blackmail or somebody who has been jilted,” Gates said.
Air Force Times estimates that if unable to finish out his career, "Fehrenbach will lose $46,000 a year in retirement pay as well as medical benefits, according to pay charts. He would get a lump sum of about $80,000, half of standard involuntary separation pay for an officer of his years, the charts show."
Fehrenbach wore civvies to the White House Pride event, fearing disciplinary action for attending a "political" event with the Commander in Chief, AF Times reports.
A Lesbian couple from Nampa is challenging the city's policy of denying family recreation center memberships to same-sex couples.
"It's pretty obvious they're discriminating,” Rachel Dovel said about the Nampa Recreation Center's refusal to sell a family pass to her partner and their son.
Dovel and her partner, Amber Howard, wanted to get a family membership pass to the Nampa Recreation Center for themselves and Howard's 4-year-old son, Logan Henderson. According to Dovel, the Rec Center staff at first told them that they could get a family pass if they had legal documentation proving they were domestic partners—documentation that Dovel and Howard have because Dovel carries Howard on her insurance plan.
But when Howard returned to the Rec Center with the papers, the Rec Center denied them a family pass because Dovel and Howard aren't married under Idaho law.
“We are a family even if we can't get married,” Dovel said. “The Rec Center is standing behind those laws as a cop-out.”
The family pass policy, which states that "the primary member and spouse must be legally married," didn't add up to Dovel. The Nampa Rec Center gives family passes to single parents. Moreover, Dovel and Howard checked with Howard's sister and brother-in-law, only to find out they hadn't been required to show their marriage license to get a family pass.
The Rec Center's policies have nothing to do with sexual orientation, Dale said, but he said the center gives out passes only to families as defined under Idaho law—laws written to exclude homosexual couples from getting married in Idaho, adopting children together, or being recognized as a married couple if they were married in another state or country.
Marriage rights aside, Nampa's policy discriminates against gay couples by charging them more for identical services: Individual passes for three at the Rec Center would cost $400 a year more than the family pass, Dovel said.
Fortunately, the Caldwell YMCA allowed them to buy a family pass, which is good at YMCAs across the Treasure Valley. Although the costs are slightly higher than the Rec Center's family membership prices and they would have a longer commute, Dovel is grateful that the YMCA recognizes her family.
Other gyms, including the Idaho Athletic Club and Anytime Fitness, have also told Dovel they offer family memberships to gay and lesbian couples.
Dovel and Howard could still have gotten a family pass for Howard and her son in a single-parent family arrangement, while Dovel bought an individual pass, Dale said.
The Rec Center's family pass prices are so low they have to draw the line defining family somewhere, Dale said. “We have to protect the integrity of our funding structure,” he said. Otherwise, he said, “Any two people who happen to be roommates and say, 'Hey, we're family, give us a discount'—we would suffer financially.”
The Rec Center is funded strictly by membership dues, not tax dollars, he said.
Dovel said she plans to fight the Rec Center's policies. She and the editor of PrideDepot.com and members of other LGBT groups plan to rally and protest in front of the Rec Center.
“We want to make this as big as possible because LGBT issues that are going on here aren't as out in in the open as in other places,” she said. “We don't want to get it changed just for us. We want to get it changed for everyone.”