Madelynn Taylor: She Wants It in Writing 

Idaho is one of a small minority of states where a civil-rights action does not survive a death.

Madelynn Taylor at the Idaho State Veterans Cemetery.

Laurie Pearman

Madelynn Taylor at the Idaho State Veterans Cemetery.

No, the case of Madelynn Taylor versus the state of Idaho isn't over.

It was last spring when Boise Weekly first introduced readers to Taylor, the Navy veteran who was fighting for the right to be interred with her same-sex spouse at the Idaho State Veterans Cemetery (BW, News, "Idaho Says No," April 23, 2014). The story was picked up by other media outlets and ultimately made international headlines.

Meanwhile, the state of Idaho was waging a losing battle in its attempt to keep its constitutional ban of same-sex marriage. Ultimately, Taylor ended up suing the state in order to secure her burial benefits as a veteran (BW, News, "Enough is Enough," July 9, 2014) and when a federal court judge and the 9th Circuit Court of Appeals ruled that Idaho's ban on same-sex marriages was indeed unconstitutional, Taylor was allowed to lay her late spouse's ashes to rest at the Veterans Cemetery (BW, News, "'Til Death Did They Part," Nov. 5, 2014).

"But the Attorney General's Office never agreed to a final judgment order being entered in Madelynn's favor," said Boise-based attorney Deborah Ferguson, who along with Craig Durham and the National Center for Lesbian Rights is representing Taylor.

Simply put, Idaho Attorney General Lawrence Wasden has filed a motion in U.S. District Court that Taylor's case "is moot" and that "because there no longer exists any case or controversy, the Court should dismiss this case without prejudice for lack of subject matter satisfaction."

But that's not true--legally or conceptually--according to Ferguson.

"To protect Madelynn, we think we should get that final judgment order," she told BW. "It turns out that Idaho is one of a small minority of states where a civil-rights action does not survive a death."

In other words, if Taylor were to pass away while her case is still unresolved, her civil-rights claim would disappear.

"Truly, I don't think this is a matter that should be left to [the state of Idaho's] discretion," said Ferguson. "The cemetery is run by Idaho rules."

David Brasuell, administrator of the Idaho Division of Veterans Services, wrote to the court that "Veterans Services has done all it can, within the bounds of Idaho law," in allowing Taylor's late spouse, Jean Mixner, to be interred in early November.

But in Ferguson's memorandum to the court, dated Dec. 11, she argued that the state of Idaho "is unwilling to enter into a binding agreement to honor Ms. Taylor's request to be interred with her spouse in perpetuity" and "that declaration falls short of making it absolutely clear that the [state's] allegedly wrongful behavior will not recur if the lawsuit is dismissed."

And the urgency? That's personal, too. It turns out that Taylor recently experienced a medical emergency. Taylor said she was experiencing severe abdominal pains and went to Boise's VA Medical Center for a checkup.

"It was very serious. Two of the three arteries supplying blood to the intestines were completely blocked and the third had a partial blockage," said Ferguson. "They needed to perform emergency surgery."

Taylor has recuperated from the surgery and has since been discharged from the VA hospital.

"But it's a reminder that she's not completely invincible," said Ferguson.

Wasden insists that there's no reason to expect that Taylor will confront the "same controversy" as she did earlier this year.

"The controversy on which this case was based was the fact that Veterans Services had denied Ms. Taylor's application to have Ms. Mixner's remains interred at the Cemetery," wrote Wasden in his brief. "Veterans Services has since granted the application and interred Ms. Mixner's remains so the same controversy will not recur."

But Ferguson wants that in writing--from a judge.

"Ms. Taylor can obtain that relief only through a binding judgment from this Court," she wrote.

Whether a federal court judge wants Ferguson and Wasden to present oral arguments before ruling on the matter should occur in the next few weeks.

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