Thursday, May 15, 2014

The Real 'Chaos' And 'Confusion' Over Idaho's Nixed Same-Sex Marriage Ban

Posted By on Thu, May 15, 2014 at 10:38 AM

At about 3 p.m. Friday, Dec. 20, 2013, attorneys arrived at the Salt Lake County Clerk's Office in Salt Lake City and began to read the lengthy federal court decision, handed down that day by U.S. District Judge Robert Shelby declaring Utah's same-sex marriage ban unconstitutional. That Friday, the clerk's office issued about 150 licenses. The following Monday, it issued another 350. When the state appealed Shelby's decision, clerk's office staff approached same-sex couples in line to notify them that a stay of the decision could go into effect at any time, and licenses would cease to be issued to same-sex couples if and when that happened. 

"They were very polite. They were very respectful. And they were very grateful. There were also people performing ceremonies as soon as people got their marriage licenses," said Salt Lake County Clerk Sherrie Swensen, who was specifically named in the lawsuit to overturn Utah's gay marriage ban. 

"Did we get through it? Yes we did. It wasn’t really what I’d call ‘chaos.’ It was just a lot of people and massive crowds that we’ve never dealt with before," she said.

But that's how Idaho Gov. C.L. "Butch" Otter described the legal limbo of Utah's marriage license-holding same-sex couples while they wait for another court's ruling. In a statement accompanying a motion for a stay of U.S. Judge Candy Dale's decision just hours before she ruled Idaho's ban on same-sex marriages unconstitutional May 13, Otter characterized Utah same-sex couples' situation as one of "chaos" and "confusion." His motion to preemptively halt issuing marriage licenses while the state takes its case to the 9th Circuit Court of Appeals has been denied, but the serious challenge to Idaho's gay marriage ban has put same-sex marriage licenses issued here beginning Friday, May 16, on the same uncertain footing as those issued in Utah.

"Right now, those marriage licenses [in Utah] are basically in limbo until their appeals go through. That same situation could happen here," said Monica Hopkins, executive director of ACLU-Idaho.

It might be limbo for such licenses in Idaho if the 9th Circuit Court of Appeals or the U.S. Supreme Court overturn Dale's decision, but Hopkins disagrees with Otter over who will be adversely affected by the ruling.

"I don’t think the people granted licenses in Utah would call that chaos and confusion. It could be chaos and confusion for the state of Idaho. I think it’s pretty clear ... that marriage licenses for same-sex couples is about fairness and equality under the law," Hopkins said.

Part of Otter's dogged pursuit of the issue—he has budgeted $1 million in public money for legal expenses to protect the ban—may stem from the fact that, for now, the greatest threat to his bid for another term as governor comes from Meridian Republican Sen. Russ Fulcher, whose campaign against Otter has tried to paint the incumbent as out of touch with conservative values. 

At the only Idaho gubernatorial debate, aired May 14 on Idaho Public Television, Spokesman-Review reporter Betsy Z. Russell reminded Fulcher that he referred to banning gay marriage in 2006 as part of a "culture war" and asked him for how long he would fight that war. He said he was "surprised" at Dale's ruling, and agreed that Idaho should challenge all the way to the U.S. Supreme Court.

"I believe that I took the right position in 2006 in standing for the marriage amendment and I stand with the people of Idaho to this day on that decision," he said.

Otter went further: "When you redefine marriage, you redefine the whole idea of family," he said, adding that his stance is "pro-traditional marriage," and anything that changes that "culture ... is gonna be looked upon a little tough in Idaho."

Asked what impact same-sex marriage would have on "traditional" marriage, Fulcher responded: "What happens when you start redefining marriage is you start impacting other laws in the state. ... [R]religious freedom comes into play."

Calling it "foundational," he said same-sex marriage represents an "automatic conflict with the freedom of religion." Boise Republican Rep. Lynn Luker addressed exactly that conflict in the most recent legislative session, with two bills that would have extended special protections to those who use their faith as a reason to deny service or protection to someone whose lifestyle or beliefs are not in line with their own. The bills—part of a wave of similar legislation backed by far-right special interest groups and introduced in a number of states—were passionately opposed and ultimately died in committee. 

What happens next is up to the courts, said Hopkins, of ACLU-Idaho. In the meantime, "We should all be celebrating right now," she said, "but we should also bear in mind that ... if we want full equality for all Idahoans, it behooves us to continue the vital work of nondiscrimination ordinances in cities and statewide. ... [The issues] are linked, and we need to bear in mind that there’s still a battle for nondiscrimination."

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