Guest Opinion: Upholding Idaho Constitution's gay marriage ban may not be the right thing

February 4, 2014 

Compare and contrast:

The attorney general for the state of Virginia, Mark Herring, announced Jan. 23 that his office will not defend the state’s law restricting marriage to one man and one woman, asserting his opinion that the law is in violation of the U. S. Constitution.

This from a man who as a state senator in 2006 voted in favor of Virginia’s “marriage inequality” amendment. Herring’s decision clearly signals that people can change their point of view, encourage expansion of tolerance and decide to embrace the idea of marriage equality.

Meanwhile, here in Idaho, Attorney General Lawrence Wasden announced that federal Magistrate Judge Candy Dale had granted his motion to intervene in a lawsuit filed by Idaho gay couples challenging our state’s similar constitutional amendment.

Despite the fact that Gov. Butch Otter’s office had already noticed its defense and filed an opposition brief, Wasden sought intervention, citing his duty to uphold the laws of Idaho.

This position is commendable in light of the fact that when they’re sworn in, all Idaho attorneys raise their right hand and swear to uphold the constitution of the United States and the state of Idaho.

However, in the present case, Idaho’s law is in direct contradiction to the federal law as it was revised June 26, when the U.S. Supreme Court struck down section 2 of DOMA. This sort of quagmire has been faced by dozens of attorneys general in the past several months since the high court made its ruling in U.S. v. Windsor.

Wasden’s decision to intervene was not a surprise. What is surprising and terribly unfortunate is that the state of Idaho is now using taxpayer dollars both to pay Gov. Otter’s attorneys and, now, to pay the AG’s fees, recoverable only if they prevail.

Is this how we wish to spend tax dollars?

I understand for some the answer to this question is unequivocally affirmative, and I respect this position to the extent that it is likely representative of many an Idahoan’s point of view.

However, as the mind and heart of Virginia Attorney General Herring has changed, so might the minds and hearts of Idahoans have changed in the years since 1996, when the amendment to our state constitution was ratified.

The larger question, however, comes down to what is right under the U.S. Constitution as it controls state action based upon the supremacy clause, and what is not right?

It is not right to limit the liberties of an entire class of persons simply because of fear, a failure to tolerate, and a failure to live and let live. A failure ... quite simply, to honor individual liberty!

Perhaps we may all one day be prepared to take a page out of Herring’s playbook, to grow a spine and do the right thing.

Lisa Shultz is a Boise attorney.

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