Judge Lets Idaho AG Enter Same-Sex Marriage Case

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BOISE, Idaho (AP) — A federal judge says Idaho's attorney general can intervene in a lawsuit challenging the state's ban on same-sex marriage, even though Gov. C.L. “Butch” Otter is already a party in the case.

U.S. Magistrate Judge Candy W. Dale made the ruling Tuesday, saying that Idaho has a strong interest in defending its laws against constitutional attack and that Idaho Attorney General Lawrence Wasden was in a position to assert those defenses.

The judge acknowledged that at least some of Wasden's defenses will mirror those already being presented by Otter, but said that redundancy alone wasn't enough to keep Wasden out of the case.

Four couples — Sue Latta and Traci Ehlers, Lori and Sharene Watsen, Shelia Robertson and Andrea Altmayer, and Amber Beierle and Rachael Robertson — filed the lawsuit challenging Idaho's same-sex marriage ban in November, arguing that the ban violates the U.S. Constitution's equal protection and due process guarantees. They brought the lawsuit against the governor and Ada County Clerk Chris Rich, and the women's lawyers have adopted a legal strategy that's been effective in Ohio so far.

Two couples married in other states, and the other two tried to marry in Idaho but were denied.

They contend that Idaho has historically recognized marriages performed in other states that would have been considered illegal under Idaho law, such as marriages between first cousins and common-law marriages, but the state has unconstitutionally drawn the line at gay marriage.

Among other things, the women say they're already facing potential discrimination as a result of Idaho's ban: For instance, even though they're allowed to file joint federal tax returns like other married couples, they're prohibited from joint state tax filing status in Idaho, forcing them to do extra work and potentially subjecting them to financial penalties.

As the head of the state's executive branch of government, Otter is frequently sued. Often he's represented in lawsuits by Wasden or one of Wasden's deputy attorney generals. But under Idaho law, Otter is also allowed to retain his own attorney, and in this case, he's opted to use the staff attorney from his own office, Thomas Perry.

Otter has taken no official position on Wasden's motion to intervene, according to the ruling, and Rich told the court he didn't oppose it.

But the women opposed Wasden's move to join the case, saying the state's interests are already represented by Otter and Rich and adding Wasden to the mix would amount to “piling on,” leading to inevitable delays.

Still, Magistrate Judge Dale said because of the weighty and controversial issues in the case, she wanted to be sure that Idaho's stance was fully represented, and that meant allowing Wasden to intervene.

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