Box Turtle Bulletin

That’s Right. Idaho.

As Timothy already mentioned, U.S. Magistrate Judge Candy Dale has ruled Idaho’s ban on gay marriage is unconstitutional. Judge Dale’s order goes into effect on Friday, May 16 at 9:00 a.m. Her 57-page ruling his here (PDF: 235KB/57 pages). You know it’s going to be a good one when she leads off with this on the front cover:

I. INTRODUCTION

It is precisely because the issue raised by this case touches the heart of what makes individuals what they are that we should be especially sensitive to the rights of those whose choices upset the majority.

— The Honorable Harry Blackmun ¹

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1 Bowers v. Hardwick, 478 U.S. 186, 211 (1986) (Blackmun, J., dissenting), overruled by Lawrence v. Texas, 539 U.S. 558 (2003).

She gets right to the heart of one of the main arguments put forward by marriage equality opponents. “This case asks a basic and enduring question about the essence of American government: Whether the will of the majority, based as it often is on sincere beliefs and democratic consensus, may trump the rights of a minority.”

Although 17 states legally recognize same-sex marriages, Idaho is one of many states that has chosen the opposite course. Like courts presiding over similar cases across the country, the Court must examine whether Idaho’s chosen course is constitutional. Significantly, the Supreme Court of the United States recently held that the federal government cannot constitutionally define marriage as a legal union between one man and one woman. United States v. Windsor, 133 S. Ct. 2675 (2013). Writing for the majority in Windsor, Justice Kennedy reasoned the “purpose and effect” of the federal  man-woman marriage definition was “to disparage and injure” legally married same-sex couples in derogation of the liberty, due process, and equal protection guaranteed by the Fifth Amendment to the United States Constitution. Id. at 2696. Here, the Court considers a related but distinct question: Do Idaho’s Marriage Laws deny Plaintiffs the due process or equal protection guaranteed by the Fourteenth Amendment to the United States Constitution?

After careful consideration, the Court finds Idaho’s Marriage Laws unconstitutional. This conclusion reaffirms a longstanding maxim underlying our system of government—a state’s broad authority to regulate matters of state concern does not include the power to violate an individual’s protected constitutional rights. See, e.g., id. at 2691 (“State laws defining and regulating marriage, of course, must respect the constitutional rights of persons. . . .”). Idaho’s Marriage Laws deny its gay and lesbian citizens the fundamental right to marry and relegate their families to a stigmatized, second-class status without sufficient reason for doing so. These laws do not withstand any applicable level of constitutional scrutiny.

Judge Dale later went further on the question of scrutiny:

With respect to Plaintiffs’ due process claim, Idaho’s Marriage Laws are subject to strict scrutiny because they infringe upon Plaintiffs’ fundamental right to marry. Under the Equal Protection Clause, Idaho’s Marriage Laws are subject to heightened scrutiny because they intentionally discriminate on the basis of sexual orientation. The Court finds that Idaho’s Marriage Laws do not survive any applicable level of constitutional scrutiny and therefore violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution.

Her acceptance of heightened scrutiny was based on the analysis made by the Ninth Circuit Court of Appeals in the SmithKline case, which “establishes a broadly applicable equal protection principle” for gay people. The Ninth Circuit, in turn, based their decision to apply heightened scrutiny on last summer’s Windsor decision striking down Section 3 of the Defense of Marriage Act. She wrote:

Apart from SmithKline, Plaintiffs also contend Idaho’s Marriage Laws are subject to heightened scrutiny because classifications based on sexual orientation are constitutionally suspect. The Court need not dissect this argument because the Supreme Court has accepted it by implication. If homosexuals are not a suspect or quasi-suspect class, the Supreme Court would have applied rational basis scrutiny in Windsor. But, as recognized in SmithKline, the Supreme Court applied heightened scrutiny. Indeed, the Supreme Court affirmed the Second Circuit without questioning (or even discussing) the lower court’s express holding… The Second Circuit’s holding was both approved and essential to the scrutiny the Supreme Court applied in Windsor. Had the Supreme Court disagreed with the Second Circuit, it would not have applied heightened scrutiny. It is not necessary to repeat the Second Circuit’s analysis, for that analysis is implicit in both Windsor and SmithKline.

Because Idaho’s Marriage Laws impermissibly infringe on Plaintiffs’ fundamental right to marry, the Laws are subject to strict due process and equal protection scrutiny. But SmithKline directs the Court to apply heightened equal protection scrutiny to laws that discriminate on the basis of sexual orientation. Idaho’s Marriage Laws do not withstand this heightened scrutiny.

Judge Dale spent considerable effort to review the place that marriage has in the constellation of civil and human rights, as well as prior court rulings that specifically addressed the rights that gays and lesbians are entitled to under the law:

More recently, the Supreme Court confirmed that gay and lesbian individuals do not forfeit their constitutional liberties simply because of their sexual orientation. Lawrence, 539 U.S. 558. The Court observed that “our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.” Id. at 574. Emphasizing that these are personal rights, the Court concluded “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Id. (emphasis added). And, less than one year ago, the Supreme Court struck down the federal Defense of Marriage Act’s man-woman definition of marriage because it amounted to unconstitutional “interference with the equal dignity of same-sex marriages” recognized by some states. Windsor, 133 S. Ct. at 2693. The message of these cases is unmistakable—all individuals have a fundamental right to marry

…Finally, and most critically, the Supreme Court’s marriage cases demonstrate that the right to marry is an individual right, belonging to all. See Lawrence, 539 U.S. at 574. If every individual enjoys a constitutional right to marry, what is the substance of that right for gay or lesbian individuals who cannot marry their partners of choice? Traditional man-woman marriage is no answer, as this would suggest that gays and lesbians can switch off their sexual orientation and choose to be content with the universe of opposite-sex partners approved by the State. Defendants offer no other answer.

In their effort to avoid the question, Defendants commit the same analytical mistake as the majority in Bowers v. Hardwick, the decision that declined to “announce a fundamental right to engage in homosexual sodomy.” 478 U.S. 186, 191 (1986), overruled by Lawrence, 539 U.S. at 577. The crucial mistake in Bowers was that the majority narrowed and thus “fail[ed] to appreciate the extent of the liberty at stake.” Lawrence, 539 U.S. at 567. For that reason, the Supreme Court in Lawrence concluded “Bowers was not correct when it was decided, and it is not correct today.” Id. at 577. Lawrence instructs not only that gay and lesbian individuals enjoy the same fundamental rights to make intimate personal choices as heterosexual individuals enjoy, but that judicial attempts to parse those rights out of existence will be met with a harsh rebuke.

She dispensed with the “what’s best for children” argument raised by the defendants:

The best that can be said for Defendants’ position is that some social scientists quibble with the prevailing consensus that the children of same-sex parents, on average, fare no better or worse than the children of opposite-sex parents. (Id. ¶¶ 35-41.) But the Court need not—even if it could at the summary judgment stage—resolve this sociological debate. The parties’ debate over the scientific literature distracts from the essential inquiry into the logical link between child welfare and Idaho’s wholesale prohibition of same-sex marriage. That link is faulty for at least four reasons.

First, civil marriage in Idaho is and has long been a designedly consent-based institution. The law speaks of marriage as a “civil contract . . . to which the consent of parties capable of making it is necessary.” Idaho Code 32-201. True, “throughout human history and across many cultures, marriage has been viewed as an exclusively opposite-sex institution and as one inextricably linked to procreation and biological kinship.” Windsor, 133 S. Ct. at 2718 (Alito, J., dissenting). But Idaho law is wholly indifferent to whether a heterosexual couple wants to marry because they share this vision or simply seek a tax break. That such a crass objective would be sufficient to obtain a marriage license does not mean marriage is a cheap convenience. Instead, it means that the value of marriage derives from a place beyond the law’s reach.  Important as the child-centered vision of marriage is, Idaho’s consent-based marriage regime does not require heterosexual couples to accept or follow this norm….

Second, Idaho does not condition marriage licenses or marital benefits on heterosexual couples’ ability or desire to have children. No heterosexual couple would be denied the right to marry for failure to demonstrate the intent to procreate…

Third, Idaho does not withhold marriage licenses from heterosexual couples who might be, or are, non-optimal parents. Under Idaho law, everyone from multiple divorcees, “dead-beat dads,” see Zablocki, 434 U.S. 374, to prison inmates, see Turner v. Safley, 482 U.S. 78 (1987), may marry, as long as they marry someone of the opposite sex. …

Finally, and most importantly, the Governor’s child welfare rationales disregard the welfare of children with same-sex parents. It is undisputed that “poverty and social isolation [are] associated with maladjustment [in children], and adequate resources support[] healthy adjustment.” (Lamb Dec., Dkt. 47 ¶ 18.c.) It is also clear that “[m]arriage can yield important benefits for children and families, including state and federal legal protections, economic resources, family stability, and social legitimacy. These benefits are equally advantageous for children and adolescents in families headed by same-sex and different-sex couples.” (Id. ¶ 48.). …. In this most glaring regard, Idaho’s Marriage Laws fail to advance the State’s interest because they withhold legal, financial, and social benefits from the very group they purportedly protect—children.

And finally, she addressed the “religious liberty” question:

Finally, Governor Otter argues that Idaho’s Marriage Laws should be upheld because they serve the related goals of supporting religious liberty, avoiding the potential  for religion-centered conflicts, and affirming a prevailing social consensus on marriage. …

The Governor’s argument concerning religious liberty is myopic. No doubt many faiths around the world and in Idaho have longstanding traditions of man-woman marriage rooted in scripture. But not all religions share the view that opposite-sex marriage is a theological imperative. In fact, some of the Plaintiffs actively worship in faiths that recognize and support their unions. (S. Watsen Dec. ¶ 13, Dkt. 51.) To the extent Governor Otter argues that Idaho has a legitimate interest in validating a particular religious view of marriage, that argument blithely disregards the religious liberty of congregations active in Idaho. “By recognizing the right to marry a partner of the same sex, the State allows these groups the freedom to practice their religious beliefs without mandating that other groups must adopt similar practices.” Kitchen v. Herbert, 961 F.Supp.2d 1181, 1214 (D. Utah 2013).

Likewise, a desire to protect or maintain a particular social consensus does not withstand constitutional scrutiny. “A citizen’s constitutional rights can hardly be infringed simply because a majority of the people choose that it be.” Lucas v. Forty-Fourth Gen. Assembly of Colo., 377 U.S. 713, 736-37 (1964). … Rather, the dispositive principle in this case is that “fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943). The Supreme Court has endorsed this principle again and again. …

This principle resonates today, as 10 federal courts across the country have in recent months reached similar conclusions on the very issues present in this case. Considering many of the same arguments and much of the same law, each of these courts concluded that state laws prohibiting or refusing to recognize same-sex marriage fail to rationally advance legitimate state interests. This judicial consensus was forged from each court’s independent analysis of Supreme Court cases extending from Loving through Romer, Lawrence, and Windsor. The logic of these precedents virtually compels the conclusion that same-sex and opposite-sex couples deserve equal dignity when they seek the benefits and responsibilities of civil marriage. Because Idaho’s Marriage Laws do not withstand any applicable form of constitutional scrutiny, the Court finds they violate the Fourteenth Amendment to the United States Constitution.

Judge Dale ended with this observation:

The Fourteenth Amendment guarantees of due process and equal protection lie at the core of our constitutional system. While the Supreme Court has not expressly decided the issues of this case, it has over the decades marked the path that leads to today’s decision. “[T]he history of our Constitution . . . is the story of the extension of constitutional rights and protections to people once ignored or excluded.” United States v. Virginia, 518 U.S. 515, 557 (1996). Slow as the march toward equality may seem, it is never in vain.