David Adler: Idaho same-sex marriage rules unlikely to survive

December 26, 2013 

David Adler

The bricks in the walls surrounding Idaho’s constitutional provisions and laws barring same-sex marriage were significantly loosened last week by two federal court rulings, including a pivotal decision in conservative Utah that struck down state bans on marriage equality.

The rulings in Utah and Ohio provide a powerful head of precedential steam for a lawsuit filed last month in Idaho’s federal district court, challenging both the Gem State’s ban on gay marriage and its refusal to recognize the validity of the marriage of same-sex couples in other states.

Though not bound by recent rulings in Utah and Ohio, the federal judge in the pending case surely will grapple with their premises, reasoning and conclusions, each of which draws deeply from the language and reasoning employed by Justice Anthony Kennedy in his opinion for the U.S. Supreme Court last June, when it struck down the federal Defense of Marriage Act in U.S. v. Windsor.

Judge Robert J. Shelby’s decision in the Utah case, which has a direct bearing on the Idaho Constitution, was significant to the national drive for same-sex marriage. It represents the first time a federal court has ruled on the constitutionality of state bans on gay marriage since the Supreme Court struck down DOMA. Judge Shelby held that state laws barring same-sex marriage violate the due process clause and the equal protection guarantees of the 14th Amendment.

The opinion in the Ohio case, delivered by Judge Timothy Black, is precedent-setting and speaks to Idaho law. While the ruling applies only to death certificates, Judge Black’s determination that “once you get married lawfully in one state, another state cannot summarily take your marriage away,” represents a stark challenge to Idaho’s refusal to recognize the lawful marriages of same-sex couples in other states.

Utah and Ohio will appeal these rulings, but their legal rationales for banning gay marriage, like Idaho’s, have lost their force in light of the landmark opinion in Windsor. Idaho’s exclusion of same-sex couples from marriage and its refusal to respect existing marriages undermines same-sex couples’ ability to pursue their goals and dreams, disadvantages them financially and denies what Kennedy called the “dignity and status of immense import.”

Same-sex couples and their children, to borrow from Justice Kennedy, are stigmatized and relegated to a second-class status. The demeaning treatment, Kennedy observed, “tells those couples and all the world” that their relationships are “unworthy” of recognition.

By singling out same-sex couples and their families, and excluding them from marital protection, these laws “humiliate” the children now “being raised by same-sex couples” and “make it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”

The Idaho provisions, like those in Utah held unconstitutional by the federal court, are unlikely to survive any level of scrutiny since, as Judge Shelby held, they do not rationally further any legitimate government interest, but serve only to injure and humiliate same-sex couples and their families.

Recognition by Judge Shelby that the right to equal protection and due process protects the interests of same-sex couples in liberty, dignity, privacy, autonomy and intimate association represents a stirring defense of marriage equality and the pursuit of happiness.

David Adler is the Cecil D. Andrus professor of public affairs at Boise State University, where he serves as director of the Andrus Center for Public Policy.

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