Enough is Enough 

Vet sues Idaho in state's latest skirmish over LGBT rights

Madelynn Taylor (center) is flanked by Boise-based attorneys Deborah Ferguson (left) and Craig Durham (right). They filed suit July 7 against the administrator of the Idaho Division of Veterans Services.

George Prentice

Madelynn Taylor (center) is flanked by Boise-based attorneys Deborah Ferguson (left) and Craig Durham (right). They filed suit July 7 against the administrator of the Idaho Division of Veterans Services.

Madelynn Taylor, the 74-year-old Navy veteran who gained international attention when the Idaho State Veterans Cemetery rejected her request to be interred along with her late wife, said there was only one avenue left: a lawsuit.

"It's in my attorneys' hands now," she told Boise Weekly. "What else can I do?"

Taylor took a long breath and her voice softened.

"It's been two years now," she added.

In April 2012, Jean Mixner died, succumbing to complications related to emphysema. After meeting Mixner on Saint Patrick's Day 1995, the two were inseparable--marrying in an Oregon church in 1995 and again in California, at the San Bernardino County Courthouse, in 2008.

"I have Jean's ashes in a wooden box with a cross on top," said Taylor.

There hasn't been a day since her wife's passing that Taylor hasn't thought about their common wish: to be interred together at the Idaho State Veterans Cemetery. Soon after Boise Weekly introduced Taylor in April (BW, News, "Malice Toward None, Charity for All," April 23, 2014), her story went viral: from ABC News to the Washington Post; from the U.K.'s Daily Mail to Jon Stewart's The Daily Show.

"We were hopeful that Madelynn had made all the appropriate phone calls and personal visits to the cemetery," said Boise-based attorney Deborah Ferguson, "and by actually filing an application, listing her attorneys, we thought, perhaps, the state would reconsider her request."

But in a letter dated June 4, 2014, from James Earp, director of the Idaho State Veterans Cemetery, which began with pleasantries such as, "Thank you very much for your pre-registration," and "We are pleased to inform you..."

Earp said that while Taylor's service to the United States Navy qualified her for burial, but the rest of the news was all bad.

"Your application, however, is denied in part as it relates to interment of the individual you listed in the spousal pre-registration section, Ms. Jean Francis Mixner. Your application indicates that both you and Ms. Mixner are female," wrote Earp, who also quoted Article III, Section 28 of the Idaho Constitution, which says a "marriage between a man and woman is the only domestic legal union that shall be valid or recognized in this state."

"Oh, yes, Madelynn has visited our cemetery," Earp told Boise Weekly. "Yes, we comply with the National Cemetery Administration's requirement and we verify the veteran's benefits, but we're also governed by the Idaho State Constitution and that's where, I believe, the main differences lie."

And therein lies Idaho's main legal debate that has defined much of 2014: Where does the U.S. Constitution's protection of civil rights end and the Idaho Constitution's denial of same-sex marriage begin?

"We're raising federal constitutional issues today," Boise-based attorney Craig Durham told BW July 7, only minutes after filing Taylor's lawsuit, alongside co-counsel Ferguson and the National Center for Lesbian Rights. "Simply put, Madelynn has been denied her civil rights."

And if you're keeping score this year, so far it's 1-0, with Durham/Ferguson/NCLR already defeating the state of Idaho in a federal courtroom. In May, U.S. District Court Judge Candy Dale declared that the Idaho Constitution had relegated Taylor and Idaho's other LGBT citizens to a "stigmatized second-class status" (BW, Citydesk, "Historic Ruling," May 14, 2014).

But the state isn't giving up its fight on that front, either. All of those parties will be back together Monday, Sept. 8, when they argue before the 9th Circuit Court of Appeals.

"But make no mistake, the burden is on the state," said Durham. "The state is trying to convince a three-judge panel on the 9th Circuit to overturn Judge Dale."

And while preparation for arguments in the landmark case intensifies, Ferguson told BW that it was also important to "stay in the moment."

"This is an area where LGBT developments have been so rapid all across the nation. There was a ruling just last week in Kentucky," said Ferguson, referring to the latest in a string of federal court rulings against state same-sex marriage bans.

And if, for some reason, Idaho argues that needs more time to respond to Madelynn Taylor's lawsuit, because it is too busy preparing to argue before the 9th Circuit, Durham said that would be a pretty lame excuse.

"I don't think that would be an appropriate response. This has been an issue that has been percolating for a while," he said. "In fact, I know it's not a surprise."

It turns out that Durham's co-counsel, Ferguson, gave representatives of the Idaho Attorney General's Office a heads-up that the July 7 lawsuit was heading their way.

"It's a professional courtesy," said Ferguson.

Even casual court-watchers expect Idaho Gov. C.L. "Butch" Otter, Idaho Attorney General Lawrence Wasden and their supporters to say "no" to same-sex unions, and keep saying no until the case lands before the U.S. Supreme Court.

"Well, they haven't backed down," said Ferguson, who isn't inclined to back down either, especially since, when BW visited her downtown Boise office in June, we noted a very specific framed certificate hanging on her wall.

"Yes, that's a certificate to argue before the United States Supreme Court," she said (BW, News, "Still Waiting," June 18, 2014). "So, we would be more than ready."

And Taylor said she's always ready. She spends most of her summer days inside--especially when the temperature climbs into triple digits--reading and filling out the daily crossword puzzle.

She insists that she's in good health. But her doctors have told her for decades that she needed to quit smoking.

"Sssshhh. Don't tell anyone," she said with a mock whisper. "Yes, I smoke about a pack a day. But I've smoked for about 60 years now. But honestly, I really don't have any other vices. I don't drink, and quit chasing women a long time ago."

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