Gay marriage ban on Idaho ballot

BOISE – Idaho’s Constitution long forbade members of the state’s largest religious minority, the Mormon church, from voting, serving as jurors or holding office – and that clause wasn’t removed until 1982.

Today, some in Idaho – including the state Human Rights Commission – see a measure on the November ballot as a move to once again write discrimination against an unpopular minority into the state Constitution.

“Long after the people of Idaho knew it was wrong to try to deny (Mormons) basic civil rights, the language remained in the Constitution,” the Idaho Human Rights Commission declared in a statement adopted last month. “It took almost a century to get all the discriminatory language removed from the Constitution. The Commission urges Idaho to not make the same mistake again.”

Backers of HJR 2, the constitutional amendment to ban same-sex marriage, civil unions and domestic partnerships in Idaho, see it differently. Rather than writing in discrimination against another minority group – gays and lesbians – they say the amendment will protect the institution of marriage.

“We need this to protect marriage from activist judges,” said the Rev. Bryan Fischer, executive director of the Idaho Values Alliance and an outspoken proponent of HJR 2. “What happened in Massachusetts can happen here.”

Massachusetts is the only state that recognizes same-sex marriage, after that state’s Supreme Court ruled in 2003 that denying the benefits of marriage to gay couples violated their constitutional right to equal protection under the law.

Now, 41 states, including Idaho, have outlawed same-sex marriage, and 20 states have passed constitutional amendments to ban it. Another eight, including Idaho, have constitutional amendments on the ballot in November.

Andrew Yoder, campaign manager for “Idaho Votes No,” said, “This particular amendment is very broad and over-reaching, and has some unintended consequences that we feel could really harm a lot of families in Idaho.”

In political parlance, laws banning same-sex marriage have become known as DOMAs, or Defense of Marriage Acts. Idaho’s amendment is what’s generally referred to as a “super-DOMA,” said Christine Nelson, a policy associate with the National Conference of State Legislatures. “It kind of goes beyond a traditional defense of marriage, defining marriage as between one man and one woman,” she said. “It tries to get at a prohibition of any other forms of relationships, domestic partnerships or civil unions.”

Six states provide some level of spousal rights to unmarried couples through civil unions, domestic partnership laws, or other arrangements.

One of those, California, even has a special law to allow opposite-sex couples over age 62 to enter into domestic partnerships. That law was aimed at seniors who don’t want to marry for fear of affecting Social Security benefits or other issues, but want to live together and join their households.

Fischer sees no need for that. “The solution there … is we adjust those programs so that they reward couples who marry, and not penalize them for marrying.”

As for civil unions, Fischer said, “I think what we need to do is develop public policy that’s in the best interest of children, and reserve society’s highest endorsement for the relationship that creates the optimal nurturing environment for children.”

He added, “The fact that homosexuals cannot conceive children is not a matter of bigotry; that’s a matter of biology.”

Yoder said under existing law in Idaho, same-sex marriage is banned, but domestic partnerships and civil unions are “neither recognized nor banned.”

The gay and lesbian community in Idaho, Yoder said, “wasn’t asking for marriage – wasn’t talking about these things. This is something that has sort of been pushed onto the community by special interests interested in stopping all future discussion in a sweeping way.”

Laws in other states that allow civil unions or domestic partnerships typically grant state-level rights to file joint tax returns, own property jointly, collect spousal or survivor benefits, share retirement accounts, inherit, visit one another in the hospital, and be considered next of kin for purposes of notification or deciding what should be done with a partner’s remains after death. “It’s a lengthy list of rights that you don’t necessarily think of until you’re in the situation,” Nelson said.

Fischer maintains people can set up legal contracts to govern those issues, but Yoder disagreed. “This amendment would try to eliminate any possibility of doing any of those things,” he said. “It’s the biggest potential harm to same-sex couples in Idaho.”

Nelson said of the 20 states that have constitutional bans on the books, 13 are super-DOMAs like Idaho’s measure. Of the eight new ones on the ballot this year, seven are super-DOMAs.

All 20 constitutional amendments that have made the ballot so far have passed by large margins, Nelson said, with Oregon’s 57 percent the smallest majority of them all. Yet, this year, three states’ amendments are trailing in polls, which Nelson said was “amazing” in light of the strong support in earlier state votes.

“Arizona’s, theirs is behind right now in the polls, and South Dakota’s is behind in the polls. And Wisconsin’s is very close, almost too close to call,” she said. All three of those are super-DOMA amendments like Idaho’s.

Fischer said, “According to the New Testament, the authority that the state has, has been given to it by God. And according to the Apostle Paul, the state is to use the authority that God has given to it to reward those who do good. So it is appropriate for the state to use the authority that God has given it to provide special protection and privileges for married couples. When they do that, they are rewarding what is good, and that’s part of their God-given responsibility.”

The Human Rights Commission, which Idaho formed in 1969, said in its statement, “HJR 2 proposes an amendment to the Idaho Constitution that would deny important legal rights to a minority group within our population – gays and lesbians – who are currently targeted by many for ridicule, discrimination and even physical violence.

“This minority is already denied the right to marry by existing Idaho law. HJR 2 would further discriminate against them by precluding future legislatures from creating any legal status alternatives to marriage, such as a civil union. Through a civil union, same-sex couples may be able to attain civil rights important to personal dignity, such as purchasing health insurance coverage for dependents or making emergency medical decisions for loved ones.

“The Commission firmly believes that Idaho should not incorporate any form of discrimination into its Constitution.”