BOISE, Idaho — Six same-sex couples in northern Idaho who received marriage licenses before state officials say a federal court made such unions legal are being given a unique state-approved opportunity for a do-over.
Northern Idaho officials are offering a marriage license application that has the unusual option of selecting already married.
The application available only to the six same-sex couples in Latah County who married in early October is intended to allow them to get a new license without denying they're already married.
The couples say they'd be lying and could face legal penalties if they filled out a new marriage application and put down anything but married.
But it's not clear if any of the couples will take the option, and county officials said Wednesday that none of the couples had picked up one of the applications.
"We do not as now plan to get another marriage license," said Jeff Dodge, who married Mark McLaughlin on Oct. 10, the same day they received the marriage license.
Events unfolded rapidly on Oct. 10 when the U.S. Supreme Court denied appeals from five states, including Idaho, seeking to retain their bans on same-sex marriage.
That prompted lines at county offices throughout the state as same-sex couples sought licenses. Most counties waited for clarification from the Idaho attorney general's office, except Latah County, which issued licenses to six couples that day.
The attorney general's office eventually said a final order was needed from the 9th U.S. Circuit Court of Appeals before Idaho's ban on same-sex marriage would no longer be in effect. That didn't happen until Oct. 15.
As a result, the Idaho Bureau of Vital Records and Health Statistics said the state can't file the six same-sex marriage licenses and certificates from Latah County because on Oct. 10 same-sex marriage in Idaho was illegal.
Latah County Prosecutor Bill Thompson in a letter to the couples last month said the state registrar and chief of the Bureau of Vital Statistics, James Aydelotte, with legal counsel from the Idaho Attorney General's Office, confirmed that the county can offer the revised marriage license application forms with already married as an option, and that the state will accept the marriages as valid once vows are redone.
"Please understand that we are not advising that you take action one way or another," Thompson wrote in the April 16 letter. "Rather, we merely want to make you aware of this new option which was previously not available."
Niki Forbing-Orr, spokeswoman for the Idaho Department of Health and Welfare, said the state doesn't have the option to recognize a same-sex marriage that occurred before federal courts said it was legal. But the unique marriage application can help solve that.
"I think this is a good fix so they can be legally married and move on with their lives," she said.
Dodge, who married McLaughlin in a ceremony that included their recently adopted son, Marley, then 2 months old, said he appreciates the efforts made by Latah County to resolve the problem, but he's sticking with the first marriage license.
An associate clinical professor of law at the University of Idaho and associate dean for students, Dodge said he's considered the options and it's a nuanced legal situation.
Dodge said the records to support the October marriage are in Latah County, which has also supplied various other documents.
"Do I have 100 percent confidence that this is clearly legal? No," he said. "But I do feel that we now have enough on record with the county that if we were challenged, we do have documents from the county that we acted in reliance on."
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