In 2006, the people of Idaho voted to include in our state’s Constitution a provision specifying marriage between one man and one woman as the “only legally recognized domestic union that shall be valid or recognized in this State.”
Eight years later, Idaho’s federal District Court invalidated that provision, holding that individual rights guaranteed by the Constitution of the United States require that Idaho officially recognize marriages involving two people of the same sex.
Unless overturned later this month by the United States Supreme Court, this ruling means that our state must accept all such marriages as valid, with all the legal rights and responsibilities that go with the traditional one-man, one-woman institution.
By what authority do federal judges have the power to invalidate state constitutional provisions, and on what do we rely to make such momentous decisions? Article III of the Constitution says that the “judicial power shall extend to all Cases in Law and Equity, arising under this Constitution,” and Article VI makes the Constitution and the laws of the United States the “supreme Law of the Land.”
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As Alexander Hamilton explained in The Federalist, essays written to illuminate the workings of the Constitution: “The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two ... the Constitution ought to be preferred to the statute.”
When a case and controversy involving rights in the Constitution comes before us, we judges can use only the national will of the people as articulated in the Constitution and its amendments to resolve it, not our personal beliefs. In other words, we speak with the collective voice of the nation when we render a decision, not our own. Our obligation is to define the constitutional liberty of all, not to mandate a universal moral code.
The individual rights named in the Bill of Rights and our Constitution amount to a list of restrictions we have agreed not to allow the law to impose upon each other, even if a majority in Congress or in a state legislature exists to do so. In order to protect our essential liberties, we have agreed in the Bill of Rights not to unreasonably restrict freedom of speech, or of the press, or of the right to bear arms, not to prohibit the free exercise of religion, not to allow unreasonable searches and seizures by the police, not to force a defendant to stand trial without a lawyer, and not to inflict cruel and unusual punishments on those convicted of a crime, etc.
When the text of the Constitution explicitly lists an individual right, our application of it to a specific situation is reasonably straightforward. The greater challenge comes when a right is not precisely defined, such as the broad “liberty” rights in the Due Process Clause of the 14th Amendment — the amendment against which we test Idaho’s definition of marriage.
Enacted after the Civil War, the 14th Amendment reads in pertinent part, no “state (shall) deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” You will note that this amendment says nothing about the definition of marriage, which has traditionally been left to the states, not to the federal government. So where do we find in the 14th Amendment something prohibiting Idaho from excluding persons of the same sex from marriage?
The amendment’s personal liberty, due process and equal protection rights, with which a state may not inappropriately interfere, gives us the answer. In this context, “liberty” meaning more than just physical confinement.
Over the years since 1868, the task for the federal courts has been to articulate in specific terms the undefined due process and liberty rights in the 14th Amendment when someone invokes it against the government in a legal proceeding. In attending to this task, the Supreme Court has determined — not without controversy — that those are rights which objectively are “deeply rooted in this nation’s history and traditions,” rights so firmly rooted in the conscience of our people as to be ranked as “fundamental” in the concept of ordered liberty. The nature of these rights is that neither liberty nor justice would exist if they were sacrificed.
Consequently, the Supreme Court has held that fundamental liberty rights in the Due Process Clause cannot be abridged by either the federal or a state government absent a compelling and legitimate governmental reason to do so. And then, any interference with these rights must be done in a narrowly tailored way designed to accomplish only that purpose.
These liberty rights which the court has held to require special protection include the right to marry, to have children, to direct the education and upbringing of one’s children, to marital privacy, to engage in private consensual sexual conduct, to use contraception, to bodily integrity, to abortion, and to vote.
And so we come to marriage, which for almost a century the Supreme Court has identified as a relationship lying within the zone of privacy created by fundamental constitutional guarantees. In 1965, the court said that marriage “involves a right of privacy older than the Bill of Rights.” The court described marriage as “an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bi-lateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”
Thirteen years later, while striking down a state law prohibiting interracial marriage, the court said that “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” Parenthetically, like all constitutional rights, the right to marry is not without limits. For example, a person may not marry a child younger than 14, or marry a first cousin, or marry a sibling, or a parent. The reasons behind these exceptions are rational and based upon a legitimate state interest.
Then, in 2002, the court struck down a Texas statute making it a crime for two persons of the same sex consenually to engage in certain intimate sexual conduct while in private. The court said that the liberty of such persons to do so is protected by the Due Process Clause, adding that government may not use laws to “demean [homosexuals’] existence or control their destiny by making private sexual conduct a crime.” Subsequently, the court barred the use of the Federal Defense of Marriage Act to interfere “with the equal dignity” of lawful same-sex marriages recognized by a state.
The other 14th Amendment objection raised against Idaho’s marriage definition is that it unjustifiably denies equal protection of the laws to gay citizens by effectively singling them out because of their sexual orientation as a disfavored group. The Constitution does not bar legal classifications that treat one group differently from another, but such classifications must be rational and not the product of hostile discrimination that undermines a basic constitutional right of the excluded group.
Idaho’s federal court determined that the reason behind our state’s definition of marriage was not rationally grounded in a legitimate state interest, but arose instead from moral disapproval, invidious discrimination and unjustifiable intolerance.
These, then, are the rights, the principles, the values and the legal precedents the Supreme Court will use in a matter of days to decide whether the fundamental constitutional right to marry includes persons of the same sex, an issue it is confronting for the first time.
If the court does decide that same-sex marriage is included, then state laws against these unions will fall. If it doesn’t, then whether or not to allow such marriages will be left to the political process of each state.
Stephen S. Trott, of Boise, is a senior circuit judge on the 9th Circuit Court of Appeals.