WASHINGTON — Idaho Gov. Butch Otter has asked the 9th Circuit Court of Appeals to stop same-sex couples from being able to marry in his state starting Friday.
A day after declaring the state's constitutional amendment barring such marriages unconstitutional, U.S. Magistrate Judge Candy Wagahoff Dale denied Otter's request that the ruling — which takes effect at 9 a.m. Friday morning — be put on hold pending the state's appeal of the ruling.
Later Wednesday, Otter filed a notice that he would appeal the ruling and the denial of a stay to the 9th Circuit. He filed the "emergency" motion for a stay Wednesday evening.
"Absent the stay requested by Governor Otter's emergency motion, there will be a repetition in Idaho of the unseemly chaos, confusion, conflict, uncertainty, and spawn of further litigation and administrative actions seen in Utah and, to a lesser extent, in Michigan," lawyers for Otter wrote.
[Update on Thursday: Temporary stay granted by 9th Circuit, no Friday marriages for same-sex couples in Idaho.]
Specifically, Otter pointed to the U.S. Supreme Court's decision to issue a stay during the appeal of the case challenging Utah's marriage ban as a reason to grant the stay.
In issuing the stay in the Utah case, the lawyers for Otter wrote that "the United States Supreme Court made clear that it will decide the constitutionality of man-woman marriage and until that time no lower court decision holding against man-woman marriage should operate to allow same-sex couples to marry or have their marriages recognized contrary to the law of their particular States."
The brief is signed by Otter's new outside counsel as of Wednesday, Monte Stewart. Stewart is one of the outside lawyers helping Utah in its defense of its marriage ban, as well.
In addition to arguing that Otter is likely to succeed in his appeal defending the state's 2006 ban, the lawyers write, "Every marriage performed under that cloud of uncertainty and before final resolution by the United States Supreme Court would be an affront to the sovereignty of Idaho and to the democratically expressed will of the people of Idaho."
Notably, Otter's lawyers argue that Otter is likely to succeed in his appeal regardless of the level of scrutiny given to the ban by the court. Under a recent ruling in another case in the 9th Circuit, laws that classify people based on their sexual orientation are subjected to heightened scrutiny, which requires the state to show a more substantial justification for a law in order for it to be found to be constitutional.
"Idaho's marriage laws satisfy ... any other level of judicial scrutiny exactly because the vital man-woman marriage institution, unless suppressed by judicial decisions such as the Injunction and replaced with a genderless marriage regime, will continue to provide compellingly valuable social benefits, as demonstrated above," Otter's lawyers write.
If the 9th Circuit will not grant a stay pending appeal, Otter asks that a stay be issued "for a reasonable period to allow the governor to seek in a fair and orderly way a stay from the Circuit Justice and/or full Supreme Court."