Idaho ban on gay marriage stands after Supreme Court decisions

Idaho’s constitutional amendment barring same-sex marriage and civil unions of any kind stands after Wednesday’s U.S. Supreme Court rulings. The court’s striking down the federal Defense of Marriage Act on constitutional grounds applies only to federal benefits in the 12 states and District of Columbia that recognize same-sex unions. A companion decision applies only in California, where a lower court ruling overturning a voter-passed ban on gay marriage was let stand.

The DOMA decision was hailed by Monica Hopkins, executive director of the ACLU of Idaho, who reflected the complexity of state-federal law.

“As we work through the decision, the ACLU will untangle the more than 1,100 places in federal laws and programs where being married makes a difference – and figure out what that means for same-sex Idahoans who were legally married in other states,” said Hopkins in a news release.

But overturning Idaho’s marriage ban will have to wait, Hopkins said, adding that the ACLU is focused on extending civil rights protections to gays in the workplace, housing and public accommodations. “When the time is right, the voters of Idaho can amend the state constitution to allow all loving, committed couples to marry,” said the news release.

Idaho’s constitutional amendment passed the Legislature in February 2006, three weeks after introduction. The measure had been blocked for three years by a coalition of opponents who stalled the necessary two-thirds Senate vote to put an amendment on the ballot. But the opponents, including now-Lt. Gov. Brad Little, gave up in part because of pressure from conservative voters who dominate GOP primary elections. The House approved the amendment 53-17, the Senate 26-9.

Once put to voters, the amendment needed only a majority vote and passed easily, with 63.4 percent approving of House Joint Resolution 2  in the November 2006 general election.

Idaho’s amendment simply says: “Section 28. Marriage. A marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.”

In attached intent language to HJR 2, lawmakers made it clear they sought to bar legal status for any relationship that “attempts to approximate marriage.”

Lawmakers acted to head off court action that might overturn Idaho’s 1996 statute banning gay marriage. The matter became a hot topic in 2006 campaigns, most predominantly in GOP Rep. Bill Sali’s defeat of Democrat Larry Grant and GOP Superintendent of Public Instruction Tom Luna’s win over Democrat Jana Jones .

“Strong families are what makes this state great,” Luna said during a debate with Jones televised statewide.

University of Idaho law professor Richard Seamon said the court made it clear in the DOMA decision that it was not invalidating any state marriage bans, including Idaho’s. But in the long run, Seamon said, the DOMA case could become part of the framework for a future court to overturn such prohibitions.

“It’s another brick in the wall of the legal edifice building up against gay marriage bans,” Seamon said. “A lot of the reasons could be used in future lawsuits challenging such bans.”

The sponsors of the 2006 amendment were the top GOP leaders of the Legislature: then-Senate President Pro Tem Bob Geddes and then-House Speaker Bruce Newcomb, joined by then-House Majority Leader Lawerence Denney and then-Assistant Majority Leader Mike Moyle.

In their intent language, the sponsors made Idaho’s ban among the nation’s toughest.

“It is intended to prohibit recognition by the State of Idaho, or any of its political subdivisions, of civil unions, domestic partnerships, or any other relationship that attempts to approximate marriage, no matter how denominated,” the quartet wrote. “The language is further intended to prohibit the State of Idaho, or any of its political subdivisions, from granting any or all of the legal benefits of marriage to civil unions, domestic partnerships, or any other relationship that attempts to approximate marriage.”

Earlier this month, local civil rights efforts on behalf of gays became an issue at the Idaho Republican Convention. Meeting in McCall, GOP delegates voted for a non-binding resolution urging the Legislature to overturn anti-discrimination measures passed by cities including Boise, Coeur d’Alene, Ketchum, Moscow and Sandpoint. The resolution asks lawmakers to pass a law making local protections unenforceable if they reach beyond state protections.

The Legislature has repeatedly declined to add housing and workplace protections for gays and lesbians to the Idaho Human Rights Act. But a joint House-Senate committee held an informational session in March, where proponents of adding sexual orientation and gender identity to the Human Rights Act spoke. It’s unclear whether prospects for approval improved for 2014, but proponents praised lawmakers for listening.


Dan Popkey came to Idaho in 1984 to work as a police reporter. Since 1987, he has covered politics and has reported on 25 sessions of the Legislature. Dan has a bachelor's in political science from Santa Clara University and a master's in journalism from Columbia University. He was a Congressional Fellow of the American Political Science Association and a Journalism Fellow at the University of Michigan. A former page in the U.S. House of Representatives, he graduated Capitol Page High School in 1976. In 2007, he led the Statesman’s coverage of the Sen. Larry Craig sex scandal, which was one of three Pulitzer Prize finalists in breaking news. In 2003, he won the Ted M. Natt First Amendment award from the Pacific Northwest Newspaper Association for coverage of University Place, the University of Idaho’s troubled real estate development in Boise. Dan helped start the community reading project "Big Read." He has two children in college and lives on the Boise Bench with an old gray cat.

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