Draft opinion would pave way for abortion ban in Idaho. Is gay marriage next target?

As the U.S. Supreme Court appears poised to turn back the clock on abortion as a fundamental right protected by the U.S. Constitution, the court’s conservative justices could do the same thing with gay marriage.

Based on the same legal argument revealed in a leaked draft opinion by Justice Samuel Alito, the justices could overrule the court’s 2015 Obergefell v. Hodges ruling, which declared same-sex marriage a fundamental right protected by the U.S. Constitution.

“The analysis of Alito’s draft opinion would be remarkably similar to what it would be in Obergefell,” McKay Cunningham, a constitutional law professor and director of experiential learning at The College of Idaho, said in a phone interview.

While some rights are pretty clearly protected in the Constitution (speech, press, religion, for example), you won’t find the words “abortion” or “gay marriage.”

In Roe v. Wade, the Supreme Court relied on the right to privacy under the due process clause in the 14th Amendment as a justification for interpreting abortion as a fundamental right protected by the Constitution.

The same privacy right was used in Obergefell, when the court ruled gay marriage to be a fundamental right, long after many states had legalized same-sex marriage.

In his draft opinion in the abortion case, Alito argues that the court should not create new fundamental rights that could apply under due process. Further, even if the court could create new rights wholesale, any right, Alito argues, should be “deeply rooted in the nation’s history and traditions.”

The right to an abortion, Alito argues, is not.

“And as a result, states are pretty much given free rein,” Cunningham said. “All states have to do is show that their law is rational. All they’ve got to show is they’ve got a legitimate reason for the law, and morality is considered to be a legitimate reason in most instances.”

Again, the same could be said for gay marriage.

The prospect of Obergefell being overturned is a frustrating prospect for Deborah Ferguson and Craig Durham, of the Boise law firm Ferguson Durham, the two attorneys who won the Latta v. Otter case in 2014 that legalized gay marriage in Idaho, months before the Obergefell ruling.

“It’s a pretty, pretty radical draft document by Alito, and it is profoundly disturbing,” Ferguson said in a phone interview. “I would love to be able to say, well, you know, Obergefell could be distinguished (from Roe v Wade), but really, what I find so disturbing, there is no limiting principle there in that (draft) decision.”

In other words, Ferguson said, Alito’s draft opinion could extend to a whole range of other rights for U.S. citizens that are not enumerated in the Constitution, such as gay marriage, interracial marriage and contraception, and turned back over to the states to regulate as legislatures see fit.

“It seems like the logic of Alito’s draft would apply to undermine the right to privacy in the Constitution and to all those rights in the substantive due process clause,” Durham said.

Gay marriage in Idaho

Idaho voters in 2006 approved, with 63% of the vote, a constitutional amendment that declared, “A marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.”

In 2013, the National Center for Lesbian Rights brought a lawsuit, Latta v Otter, against the state of Idaho on behalf of four lesbian couples challenging the state ban.

In 2014, U.S. District Court Judge Candy Dale ruled in favor of the couples in the case. The state appealed to the 9th District Court of Appeals, which upheld Dale’s ruling.

The state of Idaho asked the U.S. Supreme Court to issue an emergency stay, which the Supreme Court granted but then vacated shortly thereafter, and gay couples began receiving marriage licenses in Idaho in October 2014.

At the same time, the Obergefell case was making its way through the courts and ended up in the U.S. Supreme Court in 2015, eventually becoming the landmark case that legalized gay marriage in the United States.

It’s not entirely clear what the law would be in Idaho if Obergefell is overturned. That’s because Idaho’s constitutional amendment was ruled unconstitutional by two lower courts without ever making it to the Supreme Court. Idaho’s 2006 constitutional amendment is still on the books. Idaho never repealed it, like other states did.

Idaho also has on the books Idaho Code 32-209, which states that Idaho would not recognize a same-sex marriage from another state.

Just this year, the Idaho Legislature had a debate about a simple tax conformity bill. Some Republican legislators balked at conforming a tax law to federal norms because of the same-sex provision in the Idaho Constitution.

The bill, House bill 472, simply aligned Idaho with tax policy changes in federal law, but some right-wing legislators, such as Rep. Ron Nate, R-Rexburg, objected, arguing that voting for the bill would be violating the Idaho Constitution, according to The Associated Press.

In all, 22 Republican legislators voted against the bill.

Going backward on rights

Some have pointed out that Alito’s draft opinion states that it’s dealing with abortion only and not all those other rights that fall under the right to privacy under the due process clause.

“We emphasize that our decision concerns the constitutional right to abortion and no other right,” Alito wrote. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

Just because Alito wrote that doesn’t mean we should believe him, though, as Alito and justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett had indicated that Roe v Wade was settled precedent, but here they are tearing down this precedent.

“A lot of these justices have not made it a secret,” Cunningham said. “They’ve spoken in public events about how they would like to revisit some of these cases and turn them around. So if I was a betting man, and there was an Obergefell-type case that came up again, I don’t know what I’d say, but it would definitely not be comfortable.”

Durham and Ferguson pointed out the Supreme Court has made “several bad decisions” in its history for not extending rights, particularly to minorities, such as the Dred Scott decision and allowing Japanese internment camps, but “I think this is the first time that we’ll have taken away something that was deemed a fundamental right for 50 years,” Durham said.

If the Supreme Court overturns the decision that the right to marry is a fundamental right, you can probably bet on the Idaho Legislature making a run at banning same-sex marriage again.

One man, one woman

A few weeks ago, when I was looking over state legislative candidates, I came across the campaign website for Jaron Crane, who is running in District 12.

He’s the son of former Idaho Treasurer Ron Crane and brother of Idaho Rep. Brent Crane, R-Nampa, the House State Affairs Committee chairman who said over the weekend that he would hold hearings on legislation banning emergency contraception and abortion pills once the Supreme Court overturns Roe v. Wade.

One of Jaron Crane’s planks in his campaign platform is “pro-family” — but apparently only certain families.

“I believe that marriage is between one man and one woman and it is the responsibility of our government to protect that union,” Jaron Crane writes, even though same-sex marriages have been legal everywhere in this country for almost seven years now, and marriage between one woman and one man is still protected.

A few weeks ago, his platform struck me as odd, like it was something out of ancient history.

Today, though, we can actually see where that’s headed.

“Let’s say a case goes up to the U.S. Supreme Court on this issue,” Durham said. “And they say we’re overruling Obergefell because that’s not implicit in the concept of ordered liberty in our nation’s history, then absolutely, I think the Idaho constitutional amendment would be back in force, and same-sex marriage would then be unlawful in Idaho.”

So much for freedom and liberty.

This story was originally published May 11, 2022 at 4:00 AM.

Scott McIntosh

Opinion Contributor,

Idaho Statesman

208-377-6202

Scott McIntosh is the communities editor and columnist for the Idaho Statesman. A graduate of Syracuse University, he joined the Statesman in August 2019. He previously was editor of the Idaho Press and the Argus Observer and was the owner and editor of the Kuna Melba News. He has been honored for his editorials and columns as well as his education, business and local government watchdog reporting by the Idaho Press Club and the National Newspaper Association. Sign up for his weekly newsletter, The Idaho Way. Support my work with a digital subscription