The Idaho Department of Correction is facing added urgency to rewrite its policies regarding same-sex marriages, as Boise Weekly has learned a court battle was threatened to challenge the agency's noncompliance with a 2015 federal ruling that legalized same-sex marriage in all 50 states.
IDOC spokesman Jeff Ray told BW earlier this month that same-sex marriage requests from inmates "are on hold until a new policy can be developed by this spring." Now, prison officials are promising to have a new policy in place on or before Tuesday, March 1.
"IDOC has represented to us that the policy will change by that date," said Boise-based attorney Deborah Ferguson. "Our outside time limit was four weeks to get it done."
Ferguson sat across the table from IDOC Director Kevin Kempf and Idaho Lead Deputy Attorney General Mark Kubinski on Jan. 28 and said her client, a female inmate at the South Boise Women's Correctional Center, had requested but been denied permission to marry a female partner who is not incarcerated.
"In order to bring a lawsuit, an inmate must first exhaust any possible administrative remedies and go through a three-step internal grievance procedure," said Ferguson. "My client did exactly that but with no success."
Ferguson said she had been contacted by various incarcerated individuals on the same issue. Similar letters were addressed to BW from a number of inmates at IDOC's prison complex south of Boise, all saying they had been denied a same-sex wedding by prison authorities, including Idaho State Correctional Institution Warden Keith Yordy, the man in charge of the state's largest prison facility.
"Because of the intricacies of IDOC's grievance process—and each case has to go through those three levels of grievance to be ripe for a legal challenge—we only needed one case to file suit against IDOC," said Ferguson. "We told them, 'We're ready to go with the lawsuit. We're at that point.' But honestly, we think it's an unnecessary lawsuit because it's quite clear that they're governed by the Supreme Court and constitutional rights are being violated."
Ferguson should know. Winner of the Exemplary Lawyer Award from the Idaho Chapter of the Federal Bar Association, she was part of the legal team that successfully sued the state of Idaho over its ban of same-sex unions, arguing Idaho's ban violated equal protection and due process guarantees.
The first ruling came down May 2014 from U.S. Magistrate Judge Candy Dale and was upheld in October of that year by the 9th U.S. Circuit Court of Appeals. The state of Idaho racked up more than $800,000 in legal bills for its unsuccessful defense.
Ferguson also successfully defended Idaho Navy veteran Madelynn Taylor, who fought for the right to have her same-sex spouse interred at the Idaho State Veterans Cemetery. In November 2014, Taylor and Ferguson stood side-by-side as the ashes of Taylor's spouse were brought to a final resting place at the state cemetery. In June 2015, the U.S. Supreme Court voted 5-4 that same-sex marriage was legal across the country, triggering scores of same-sex marriage applications at courthouses throughout Idaho.
"All this time later, we're still talking about denial of constitutional rights, this time at IDOC," said Ferguson.
When asked earlier this month what was taking so long to put in a place a same-sex marriage policy, IDOC spokesman Jeff Ray said, "When we develop any policy, we take into account how it might impact the safe and secure operation of IDOC facilities," but conceded, "as a result of last summer's U.S. Supreme Court ruling, state-level bans on same-sex marriage are unconstitutional."
Ferguson admitted IDOC can "move slowly" when changing or updating policy. But added her client was keeping a close eye on the calendar.
"I think my client will move forward as soon as she's given permission to do so," said Ferguson. "We're waiting for the policy change on March 1."