Idaho's same-sex marriage ban stands; questions linger

Uncertainty about tax and family law will keep attorneys and policymakers busy.

dpopkey@idahostatesman.comJune 27, 2013 

  • Local reaction

    "I'm thrilled that at least at this point, federally, all people will have equality. But there of course isn't marriage equality. We need to address the inequality in Idaho that still stands."

    - Colleen Fellows of Boise, who attended a rally in the city with her two boys and her mom, Thelma, who's visiting from New York City.

    "I'm happy that the Supreme Court has recognized the unconstitutional nature of DOMA. I wish that the scope were broader to cover the entire 9th Circuit, but it doesn't. We just want to live peaceably and be married, which we've been doing. But we want to have the rights that other married people do."

    - Victoria Brown of Nampa. She and Sharky Jacaway, who also attended the Boise rally, were married in Canada eight years ago after being together for more than 12 years.

    "Any progress is progress, no matter how small. I'm so grateful for the work of the ACLU."

    - Van Beechler of Boise, who chairs the LGBTA Democratic Caucus of Idaho.

Idaho's constitutional amendment barring same-sex marriage and civil unions survived Wednesday's U.S. Supreme Court rulings advancing the legal rights of gay couples.

The head of the ACLU in Idaho said she does not expect an effort to overturn the state's ban anytime soon, and a top state senator said he expects no change to Idaho's law.

But the court's striking down of the federal Defense of Marriage Act raises new issues about same-sex couples legally married in other states who either return to or move to Idaho and seek federal benefits.

"We're going to see a number of challenges," predicted Attorney General Lawrence Wasden. "We have a more defined law at this point, but I don't think the answers have been given. There's no way to predict where that's going to go; we'll just have to do it case by case."

Sen. Jeff Siddoway, who heads the Senate Local Government and Taxation Committee, noted the foundational facts that led the court to overturn DOMA - a New York woman who paid $363,000 in estate taxes after her wife's death that she wouldn't have paid had she been married to a man.

"How they're treated fairly on tax policy, that's the biggest lever that same-sex couples have over the state," saidSiddoway, R-Terreton. "The state is probably going to have to come up with policies that conform" with federal practice.

Siddoway said he expects advice from Wasden's office. On Wednesday, Assistant Chief Deputy Attorney General Brian Kane said that under current Idaho law, a same-sex couple would have to file separate Idaho income tax returns, even though they may have been legally married in one of the 13 states and District of Columbia now recognizing same-sex unions.

"What Sen. Siddoway is asking is do we need to make some sort of change, and if we do, what exactly is the amount of change?" Kane said.

The DOMA decision was hailed by Monica Hopkins, executive director of the ACLU of Idaho, who reflected on the complexity of the new issues. The national ACLU represented Edie Windsor, the plaintiff in the DOMA case.

"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.

That will take considerable time.

"If a same-sex couple residing in a state that doesn't allow same-sex marriage gets married in a state that does, then returns home, whether or not they're now eligible for federal marriage benefits can vary depending on the benefit," said Susan Parnas Frederick of the National Conference of State Legislatures.


For some, the decision was bittersweet. Lisa Shultz is a Boise lawyer and member of the National LGBT Bar Association's Family Law Institute, which represents gay, bisexual and transgender lawyers.

Shultz said "a torch of freedom has been lit" for people in 13 states recognizing gay unions. "Unfortunately for Idaho, we still have a long way to go. A lot is riding on how the office of the U.S. Attorney General goes about implementation."

University of Idaho law professor Richard Seamon said the court made it clear in the DOMA case that it was not invalidating any of 35 state marriage bans. 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.

Seamon said family law questions will be in play because of the U.S. Constitution's "full faith and credit" provision, which usually requires states to honor the official acts of other states, such as marriage, child custody and child support.

"It's true that the DOMA majority emphasizes the importance of each state defining marriage in its own way, but you could argue that all bets are off when one state's definition is pitted against another," Seamon said.

Seamon highlighted a phrase in the DOMA majority's opinion that the now-voided federal law reflected a "bare ... desire to harm a politically unpopular group."

A same-sex couple could use that to argue "that state policy itself might violate the equal protection principle on which the DOMA majority relied," Seamon said.


Hopkins said attempts to overturn Idaho's marriage ban will have to wait while the ACLU and others focus 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," read an ACLU news release.

Idaho's constitutional amendment barring gay marriage and civil unions of any kind 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.

Once put to voters, the amendment needed a majority and passed easily, with 63 percent in November 2006.

Idaho's amendment simply says: "A marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state."

Earlier this month, local civil rights efforts on behalf of gays became an issue at the Idaho Republican convention. GOP delegates voted for a nonbinding resolution urging the Legislature to overturn anti-discrimination measures passed by cities, including Boise. The resolution asks lawmakers to make tougher local protections unenforceable.

The Legislature has repeatedly declined to add protections against discrimination for gays to the Idaho Human Rights Act. But a joint House-Senate committee held an informational session in March, when proponents of adding sexual orientation and gender identity to the Human Rights Act spoke.

Senate President Pro Tem Brent Hill, a Rexburg Republican, said accommodation for same-sex marriage in Idaho is highly unlikely.

"Based on the current makeup of the Idaho Legislature, I don't see statutory changes being made," Hill told The Associated Press. "There has been a push in civil rights across the state ... that the cities have been dealing with. And I don't see that changing; we'll let the cities deal with it. But we have dealt with the issue in our state constitution and with the voice of the people."

Dan Popkey: 377-6438

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