Latest attack on marriage equality in Idaho is a hurtful waste of time | Opinion
Here we go again.
With so many other problems to deal with, Idaho’s Republican legislators seem hell-bent on trying to take away equal rights for same-sex couples.
Rep. Tony Wisniewski, R-Post Falls, introduced a memorial on March 3 that “expresses the Idaho Legislature’s commitment to restoring the definition of marriage as a union between one man and one woman, urging the Supreme Court to reconsider the Obergefell v. Hodges decision and return authority over marriage laws to the states and their citizens.”
It’s a repeat of a memorial legislators tried to pass last year. It passed the full House but never got a hearing in the Senate, even though it got sent over relatively early in the session, on Jan. 28.
The memorial is based on a couple of faulty premises.
First, this is not a “federalism” issue, as Wisniewski claims. Federalism is the notion that powers not granted to the federal government are reserved for the state.
Wisniewski wrongly asserts that, because marriage is a state issue, the Supreme Court nullifying states’ anti-gay marriage laws is a violation of federalism.
Not so.
The Supreme Court can — and does — rule on whether laws violate the Constitution. If a state law violates the Constitution, and the Supreme Court throws it out, that’s not a violation of federalism.
Voting, for example, is an issue for the states. The Constitution gives states the power to regulate elections. But if the Idaho Legislature were to pass a law banning Black residents from voting, the Supreme Court would step in and say, “No, that’s a violation of the Constitution. You can’t do that.”
That’s not violating federalism. That’s protecting rights.
Similarly, the Supreme Court has ruled many times on state laws that are challenged based on the argument that they violate the Second Amendment. If, say, the Supreme Court rules that a handgun ban in California violates the Second Amendment, does that violate federalism? No, it does not.
And that’s what happened in Obergefell: The court ruled that a state can’t grant a right or a privilege to one group while denying it to another group under the due process and equal protection clauses of the 14th Amendment.
Denying someone the right to marry takes away a host of legal benefits, including tax benefits, inheritance rights, insurance benefits, Social Security and retirement benefits, medical decision-making and visitation rights, judicial protections such as spousal privilege, and parental rights.
But here’s the real problem with the memorial, and Rep. Stephanie Mickelsen, R-Idaho Falls, hit the nail on the head during questioning at the House State Affairs Committee hearing.
The memorial asks the Supreme Court to “reverse” the Obergefell decision, which the court simply doesn’t do.
The Supreme Court may hear a new case that changes a previous ruling.
For example, the Supreme Court didn’t simply “overturn” Roe v. Wade; it heard a new case, Dobbs v. Jackson.
So it would take a new lawsuit — not a toothless memorial — to “overturn” Obergefell.
But in the meantime, a memorial like this sends a hurtful message to our friends and neighbors who are in same-sex marriages: You don’t deserve the same rights as everyone else.
One has to wonder, why do Idaho’s Republican legislators want to break up the thousands of families who got married after Obergefell? How does that fit with family values?
If the memorial passes the House, as it did last year, senators should recognize the memorial for what it is: a waste of time.
A hurtful, mean-spirited waste of time.
Scott McIntosh is the opinion editor of the Idaho Statesman. You can email him at smcintosh@idahostatesman.com or call him at 208-377-6202. Sign up for the free weekly email newsletter The Idaho Way.
