Panel to consider legal fees in same-sex parent rights case

April 9, 2019

BOISE, Idaho (AP) — The Idaho Constitutional Defense Council will meet next week to decide whether to comply with a federal court order directing it to pay legal fees stemming from a lawsuit over the rights of same-sex parents.

The council, which includes Idaho Gov. Brad Little, Attorney General Lawrence Wasden, Senate President Pro Tem Brent Hill and Speaker of the House Scott Bedke, oversees a fund of money created in 1995 to finance Idaho’s legal confrontations with the federal government over state sovereignty. But the fund has been almost exclusively used to cover legal fees when the state is sued over laws that are ultimately found to be unconstitutional.

In January, U.S. District Judge B. Lynn Winmill ordered the state to pay more than $277,000 in legal fees to attorneys for Adela Ayala, an Idaho woman who sued because the state refused to put her name on the birth certificate of a child she had with her same-sex partner. When the child was born in 2012, Idaho officials told Ayala her name couldn’t go on the birth certificate because her partner was the birth mother and they weren’t married. The couple had wanted to get married, but they couldn’t because at the time Idaho banned same-sex marriage. The U.S. Supreme Court ruling that state-level bans on same-sex marriage are unconstitutional came out on June 26, 2015.

The child was conceived via artificial insemination, and she was given Ayala’s last name. Ayala and her partner later separated, and the child remained primarily in Ayala’s care after the breakup. In his ruling handed down last year, Winmill said the state laws that prevented Ayala from being listed on the child’s birth certificate were unconstitutional as applied in her case, and he ordered the state of Idaho to add Ayala as a parent on the birth certificate. Because Ayala prevailed in the lawsuit, the judge ordered the state to pay her legal fees and court costs.

It’s common for the losing party in court cases to be ordered to pay the winner’s legal fees. Earlier this year, the Constitutional Defense Council agreed to pay $260,000 in legal fees and costs to the Animal Legal Defense Fund, which successfully sued to overturn Idaho’s so-called “ag gag” law, which sought to criminalize surreptitious filming of agricultural operations. In that case, a federal judge found the law violated the 1st Amendment of the U.S. Constitution.

Tuesday’s announcement of next week’s Constitutional Defense Fund meeting came within hours of Little expressing concern that the state could face yet another lawsuit over a new law: A rule requiring some Medicaid recipients to prove they are working a certain number of hours a week lest they be kicked off Medicaid. Similar requirements in other states have been overturned by the courts, and proponents of the voter-backed initiative that called for expanding Medicaid coverage in the first place have already said they expect to sue over the requirements.

Though Little signed the bill into law on Tuesday, he did so while expressing reservations about the ability of the legislation to survive a court challenge.