Justices and clerks of the 9th Circuit Court of Appeals were burning the (near) midnight oil Friday night, in order to tie up the few loose ends in the constitutional debate over same-sex unions in Idaho.
Following a roller coaster week of rulings, motions and counter-motions involving federal justices on both coasts, the plaintiffs in the initial argument against Idaho's ban of same-sex marriages filed a late-night motion Friday night, asking the 9th Circuit to "dissolve the stay of the District Court's judgment and injunction."
"As long as the stay is in place, plaintiffs will continue to be denied the right to enter into or have recognized the 'most fundamental relation in life,'" wrote attorneys Deborah Ferguson, Craig Harrison and Shannon Minter on behalf of the Idaho same-sex couples. "They will continue to lack the critical legal protections for their families, such as spousal-visitation and medical decision-making rights in hospitals, that different-sex couples have long enjoyed; and their children will continue to be deprived of the security of knowing that their parents' relationships are recognized by the State where they live. Continuing the stay would visit all those harms on plaintiffs, nothwithstanding that the Supreme Court has now lifted its stay of this Court's mandate. Defendants can point to nothing that would justify continuing the stay now."
And just before midnight Friday, Mountain Time, the 9th Circuit gave Governor C.L. "Butch" Otter and Attorney General Lawrence Wasden until noon Pacific Time on Monday, Oct. 13 to respond. The plaintiffs may also file a reply to the State's response by 5 p.m. Pacific Time, also on Monday.
Earlier Friday, The U.S. Supreme Court stepped out of the way of the pending issue by lifting a temporary stay issued earlier this week by U.S. Supreme Court Justice Anthony Kennedy.
"The application for stay presented to Justice Kennedy and by him referred to the Court is denied. The orders heretofore entered by Justice Kennedy are vacated," the Supreme Court said in an order issued late Friday.
The Court pulled the plug on Kennedy's temporary halt to the 9th Circuit Court of Appeals decision, which ruled that Idaho's ban of same-sex marriage was "archaic," "unjustifiable" and "unjustifiable."
9th Circuit judges ruled that Idaho's same-sex marriage ban draws on "archaic and stereotypical notions about the purportedly distinctive roles and abilities of men and women."
It was in May of this year that U.S. District Court Judge Candy Dale wrote that "Idaho law denied 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."