Guest editorial: Striking down gay marriage ban the right move

From the Spokane Spokesman-Review

Just eight days removed from oral arguments on Idaho’s gay marriage ban, U.S. District Magistrate Judge Candy Dale returned with a swift, certain and admirable denunciation:

“Idaho’s Marriage Laws deny same-sex couples the economic, practical, emotional, and spiritual benefits of marriage, relegating each couple to a stigmatized, second-class status. Plaintiffs suffer these injuries not because they are unqualified to marry, start a family, or grow old together, but because of who they are and whom they love,” she wrote.

On Monday, a judge struck down Arkansas’ ban on gay marriage. On Tuesday, the 4th Circuit Court of Appeals heard arguments on a lower court’s ruling to strike down Virginia’s anti-gay marriage law.

Idaho’s ban is one of the more restrictive in the nation, prohibiting not only gay marriage, but any legal union of same-sex couples. In 2006, voters went to the polls and passed an amendment to the state constitution that read: “A marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in the state.”

So the issue isn’t just gay marriage; it’s whether a state can consign certain citizens to a permanent subclass.

In response to the ruling, Gov. Butch Otter showed he missed a key point, proclaiming, “In 2006, the people of Idaho exercised their fundamental right, reaffirming that marriage is the union of a man and a woman.”

Voters don’t have a right to determine the rights of others. Dale’s ruling is a classic example of protecting minority rights against majority opinion. Dale struck down the law on due process and equal protection grounds.

The state argued that the purpose of the ban was upholding tradition and protecting Idaho’s “child-centric” marriage law. Dale thrashed both rationales.

It was once common for states to ban mixed-race marriages, she noted, but the U.S. Supreme Court struck down those laws. Had a popular vote been taken at the time (1967), prohibitions would’ve easily passed.

Dale then turned to the “for the children” argument and noted that traditional couples don’t have to prove their parenting skills. Idaho law does not preclude marriages involving prisoners, “deadbeat dads” and people with multiple divorces. If a couple wants to marry for the tax break and never intends to have children, it can. So, she asks, why is Idaho intervening when two loving same-sex adults want to marry?

The state’s argument for why it isn’t optimal for gay couples to raise children was paper thin. It submitted five controversial articles on parenting. Never mind that couples need not marry to have children. However, there are myriad benefits – some that would help children – the state denies same-sex couples. Examples of benefits conferred with a marriage certificate are: preferential tax status, hospital visitation, adopting a spouse’s children, owning community property and inheriting an estate.

Gov. Otter has vowed to appeal the ruling, but the state ought to tap its libertarian instincts and back out of people’s lives.