Latta v. Otter, Case No. 1:13–cv–00482–CWD.

CourtUnited States District Courts. 9th Circuit. District of Idaho
Writing for the CourtCANDY WAGAHOFF DALE
Citation19 F.Supp.3d 1054
PartiesSusan LATTA and Traci Ehlers, Lori Watsen and Sharene Watsen, Shelia Robertson and Andrea Altmayer, Amber Beierle and Rachael Robertson, Plaintiffs, v. C.L. “Butch” OTTER, as Governor of the State of Idaho, in his official capacity, and Christopher Rich, as Recorder of Ada County, Idaho, in his official capacity, Defendants, and State of Idaho, Defendant–Intervenor.
Decision Date13 May 2014
Docket NumberCase No. 1:13–cv–00482–CWD.

19 F.Supp.3d 1054

Susan LATTA and Traci Ehlers, Lori Watsen and Sharene Watsen, Shelia Robertson and Andrea Altmayer, Amber Beierle and Rachael Robertson, Plaintiffs,
C.L. “Butch” OTTER, as Governor of the State of Idaho, in his official capacity, and Christopher Rich, as Recorder of Ada County, Idaho, in his official capacity, Defendants,
State of Idaho, Defendant–Intervenor.

Case No. 1:13–cv–00482–CWD.

United States District Court, D. Idaho.

Signed May 13, 2014

Motion granted.

Held Unconstitutional

West's I.C.A. §§ 32–201, 32–209; Idaho Const. Art. 3, § 28.

[19 F.Supp.3d 1059]

Deborah A. Ferguson, The Law Office of Deborah A. Ferguson, PLLC, Craig Durham, Durham Law Office, PLLC, Boise, ID, Christopher F. Stoll, Shannon Minter, San Francisco, CA, for Plaintiffs.

Monte N. Stewart, Daniel W. Bower, Stewart Taylor & Morris PLLC, Thomas C. Perry, Cally Ann Younger, Office of the Governor, Steven Lamar Olsen, Office of the Attorney General, Boise, ID, for Defendants.
Clay R. Smith, W. Scott Zanzig, Office of the Attorney General, Boise, ID, for Defendants/Defendant–Intervenor.

CANDY WAGAHOFF DALE, United States Chief Magistrate Judge.

It is precisely because the issue raised by this case touches the heart of what makes individuals what they are that we should be especially sensitive to the rights of those whose choices upset the majority.

—The Honorable Harry Blackmun 1

This case asks a basic and enduring question about the essence of American government: Whether the will of the majority, based as it often is on sincere beliefs and democratic consensus, may trump the rights of a minority. Plaintiffs are two same-sex couples who desire to marry in Idaho and two same-sex couples who legally married in other states and wish to have their marriages recognized in Idaho. Under the Constitution and laws of the State of Idaho (Idaho's Marriage Laws), marriage between a man and a woman is the only legally recognized domestic union. Idaho effectively prohibits same-sex marriage and nullifies same-sex marriages legally celebrated in other states. Plaintiffs request the Court declare these laws unconstitutional and enjoin Idaho from enforcing them, which would allow the Unmarried Plaintiffs to marry and the Married Plaintiffs to be legally recognized as married in the state they consider home.

Although 17 states legally recognize same-sex marriages,2 Idaho is one of many states that has chosen the opposite course. Like courts presiding over similar cases across the country, the Court must examine whether Idaho's chosen course is constitutional.

[19 F.Supp.3d 1060]

Significantly, the Supreme Court of the United States recently held that the federal government cannot constitutionally define marriage as a legal union between one man and one woman. United States v. Windsor, ––– U.S. ––––, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013). Writing for the majority in Windsor, Justice Kennedy reasoned the “purpose and effect” of the federal man-woman marriage definition was “to disparage and injure” legally married same-sex couples in derogation of the liberty, due process, and equal protection guaranteed by the Fifth Amendment to the United States Constitution. Id. at 2696. Here, the Court considers a related but distinct question: Do Idaho's Marriage Laws deny Plaintiffs the due process or equal protection guaranteed by the Fourteenth Amendment to the United States Constitution?

After careful consideration, the Court finds Idaho's Marriage Laws unconstitutional. This conclusion reaffirms a longstanding maxim underlying our system of government—a state's broad authority to regulate matters of state concern does not include the power to violate an individual's protected constitutional rights. See, e.g., id. at 2691 (“State laws defining and regulating marriage, of course, must respect the constitutional rights of persons....”). Idaho's Marriage Laws deny its gay and lesbian citizens the fundamental right to marry and relegate their families to a stigmatized, second-class status without sufficient reason for doing so. These laws do not withstand any applicable level of constitutional scrutiny.


Marriage works a fundamental change on the lives of all who experience it. The decision to marry is both a deeply personal expression of love and a public declaration of commitment. For many, marriage is also a profoundly important religious institution, cementing and celebrating a life-long union enriched by enduring traditions. These traditions vary from faith to faith, but when most people think of marriage they think of the ceremony—the wedding—with all of the hope and joy those pivotal moments entail. Compared to the immense personal and spiritual significance of marriage as a ceremonial rite, the civil institution of marriage is much more prosaic.

A. Idaho's Marriage Laws

A series of licensing statutes govern civil marriage in Idaho. As far as the State is concerned, marriage is a contract evidenced by a State-issued license and a solemnization. Idaho Code § 32–201(1). The solemnization itself can be secular or religious, and the officiant need not be an ordained minister. Id. §§ 32–303 to –304. Regardless of their preferred method of solemnization, opposite-sex couples are eligible for a marriage license so long as they meet certain minimal requirements. See id. §§ 32–202 (age limitations); –205, –206 (consanguinity limitations); –207 (prohibition of polygamous marriages).

A multitude of legal benefits and responsibilities flow from a valid civil marriage contract. These marital benefits include the right to be recognized as a spouse when petitioning to adopt a child born to a spouse, see id. §§ 16–1503, –1506; have access to an ill spouse at the hospital and to make medical decisions for an ill or incapacitated spouse without a written power of attorney, see id. § 39–4504; file a joint state income tax return as a married couple, see id. § 63–3031; inherit a share of the estate of a spouse who dies without a will, see id. § 15–2–102; preclude a spouse from testifying in a court proceeding about confidential communications made during the marriage, see id. § 9–203;

[19 F.Supp.3d 1061]

and jointly own community property with right of survivorship, see id. § 15–6–401. These incidents of marriage touch every aspect of a person's life. From the deathbed to the tax form, property rights to parental rights, the witness stand to the probate court, the legal status of “spouse” provides unique and undeniably important protections. Opposite-sex married couples enjoy many of these benefits by automatic operation of law.

A couple need not marry in Idaho to enjoy these benefits, as Idaho generally follows the so-called “place of celebration rule.” See Morrison v. Sunshine Mining Co., 64 Idaho 6, 127 P.2d 766, 769 (1942) (“Having assumed and entered into the marital relation with appellant in Montana, the status thus established followed Morrison to Idaho and could not be shed like a garment on entering this state.”). Under this longstanding rule, a marriage contracted outside Idaho will be valid in Idaho if the marriage is valid where contracted. See Idaho Code § 32–209. That is, unless the marriage is between two persons of the same sex. Id.

Same-sex couples are categorically prohibited from obtaining a marriage license in Idaho or from having their otherwise valid out-of-state marriages recognized in Idaho. But for the fact they are same-sex couples, Plaintiffs would either be recognized as married or be eligible to marry.

Plaintiffs challenge three specific provisions of Idaho law.3 First, Idaho Code § 32–201 defines marriage as “a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making it is necessary.” Id. § 32–201(1). This statute prohibits same-sex marriage regardless of whether a couple otherwise qualifies for a marriage license.

Second, Idaho Code § 32–209 provides the mechanism by which Idaho recognizes the legal validity of marriages contracted in other states or countries. The statute provides:

All marriages contracted without this state, which would be valid by the laws of the state or country in which the same were contracted, are valid in this state, unless they violate the public policy of this state. Marriages that violate the public policy of this state include, but are not limited to, same-sex marriages, and marriages entered into under the laws of another state or country with the intent to evade the prohibitions of the marriage laws of this state.

Id. § 32–209. This statute creates a two-tiered system for out-of-state marriages. While opposite-sex couples benefit from the place of celebration rule, married same-sex couples shed their marital status upon entering Idaho. Although the State's non-recognition policy is not limited to same-sex marriages and marriages contracted with the intent to evade Idaho law, the statute lists no other form of marriage specifically.

Third, the Idaho Constitution effectively bans legal recognition of same-sex unions. In November of 2006, a majority of Idaho's electorate voted to add the following language to the Idaho Constitution: “A marriage

[19 F.Supp.3d 1062]

between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.” Idaho Const. Art. III, § 28.

This provision has the combined legal effect of the two statutes referenced above. But, by virtue of its place in the Idaho Constitution, the amendment imposes powerful restraints on Idaho's Legislature and Judiciary. The provision effectively precludes a state court from finding that Idaho law requires the State to recognize any type of same-sex union. And it precludes every legislative body in Idaho from recognizing civil unions or any other same-sex relationship approximating marriage. Absent a superseding constitutional amendment, no branch of state...

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