On Tuesday night, U.S. District Magistrate Judge Candy Dale struck down Idaho’s gay marriage ban, holding that it violated the due process and equal protection guarantees of the U.S. Constitution. Notably, Dale declined to stay her ruling, instead proclaiming that Idaho’s ban would officially die at 9 a.m. on Friday. Idaho Gov. Butch Otter then quickly (and predictably) filed a request to stay the ruling while the state appealed. And on Wednesday, Dale denied Otter’s request, holding that “Governor Otter is not likely to succeed on the merits” and that “the public interest [does not] favor preserving a status quo that deprives individuals of their constitutional rights.”
Dale’s impressive willingness to stand her ground against a crankily anti-gay governor isn’t surprising in light of her original ruling, a sweeping, eloquent encomium to individual liberty that memorably dismissed the state’s anti-gay arguments as “myopic,” “unsubstantiated fears.” But it’s also likely to create a small nightmare for those gay couples who do decide to wed on Friday morning. In Utah, same-sex couples rushed to get marriage certificates after a judge struck down that state’s ban—but they were left in legal limbo after the Supreme Court put the ruling on hold. Currently, the federal government recognizes Utah’s gay marriages, but the state of Utah itself refuses to do so. A similar fate could befall gay married couples in Idaho, at least until the Supreme Court wades in.
Speaking of which: It’s quite clear that Dale’s ruling, as well as every other recent ruling on gay marriage, is directed at one man—Supreme Court Justice Anthony Kennedy. That’s to be expected, given that Kennedy will almost certainly cast the deciding vote when one of these cases reaches the high court. What’s startling is how boldly these judges have been engaging in what my Slate colleague Dahlia Lithwick calls “a game of chicken” with Kennedy. They know that the swing justice will have to weigh in eventually—and at this point, they’re tired of waiting. That’s the only explanation for why, even after Utah, federal judges continue to invalidate marriage bans without staying them for appeal. Every time a gay couple in a red state finds their marriage stuck in legal limbo, the pressure on the justices to resolve the issue grows more intense. At this point, that pressure is still bearable. But it’s clear to everyone where this whole thing is headed, and judges are doing their best to remind Justice Kennedy that there’s no reason to dawdle at this late date.
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