BOISE • A mid-level federal judge has ruled that Idaho's ban on same-sex marriage is unconstitutional.
Chief Magistrate Judge Candy Dale has ordered the state to allow same-sex couples to marry in Idaho and to recognize the marriage of couples who wed in other states.
The court’s order takes effect at 9 a.m. Friday, meaning the state must issue marriage licenses to same-sex couples starting that morning.
Gov. C.L. "Butch'' Otter already has said he intends to appeal the case, meaning an appellate court could still put the weddings on hold.
In her decision, Dale wrote, "Idaho’s Marriage Laws withhold from them a profound and personal choice, one that most can take for granted. By doing so, Idaho’s Marriage Laws deny same-sex couples the economic, practical, emotional, and spiritual benefits of marriage, relegating each couple to a stigmatized, second-class status. Plaintiffs suffer these injuries not because they are unqualified to marry, start a family, or grow old together, but because of who they are and whom they love."
Dale calls the state's arguments about religious liberty "myopic."
"No doubt many faiths around the world and in Idaho have longstanding traditions of man-woman marriage rooted in scripture," Dale wrote. "But not all religions share the view that opposite-sex marriage is a theological imperative."
Dale went on to say that the state failed to prove that same- sex marriage would adversely affect opposite-sex marriages or the well-being of children.
"Without proof, the defendants' justifications echo the unsubstantiated fears that could not prop up the anti-miscegenation laws and rigid gender roles of days long past. Then as now, it is the duty of the courts to apply the law to the facts in evidence. Here, the facts are clear and the law teaches that marriage is a fundamental right of all citizens, which neither tradition nor the majority can deny."
Otter responded in a written statement, "In 2006, the people of Idaho exercised their fundamental right, reaffirming that marriage is the union of a man and a woman. Today’s decision, while disappointing, is a small setback in a long-term battle that will end at the U.S. Supreme Court. I am firmly committed to upholding the will of the people and defending our Constitution.”
Idaho Attorney General Lawrence Wasden said he would consult with the governor on the state's appeal.
The case was brought by four same-sex couples represented by Boise attorneys Deborah A. Ferguson and Craig Durham and the National Center for Lesbian Rights (NCLR).
The couples argued that Idaho’s ban on marriage for same-sex couples cannot stand in light of the United States Supreme Court’s ruling last June that the federal “Defense of Marriage Act” violates the federal constitutional guarantees of equal protection and due process. This is the 11th federal ruling since last summer’s Supreme Court decision in favor of the freedom to marry for same-sex couples, including federal courts in Utah, Ohio, Oklahoma, Kentucky, Illinois, Indiana, Michigan, Tennessee, Texas, and Virginia.
The couples are Susan Latta and Traci Ehlers, and Lori and Sharene Watsen, who are legally married and asked Idaho to recognize their marriages, and Shelia Robertson and Andrea Altmayer, and Amber Beierle and Rachael Robertson, who seek to marry.
State attorneys filed papers Monday seeking an immediate stay in the event the constitutional ban was struck down. The state argues that gay marriages shouldn't move forward until the case has gone through the appeal process. That motion is pending before the court.