In 2006, 282,386 Idahoans, 63.35 percent of those who voted, defined marriage in the State Constitution as between only one man and one woman.
Federal Judge Cindy Dale set aside the will of the majority May 13, ruling Idaho’s same-sex marriage prohibition unconstitutional. Idaho’s marriage laws, Dale wrote, “deny same-sex couples the economic, practical, emotional and spiritual benefits of marriage, relegating each couple to a stigmatized, second-class status.”
That ruling, which is under appeal, struck a nerve in eastern Idaho.
We’ve taken your calls and read your emails. There is among many who view marriage as a sacred, religious ceremony trepidation, understandably, at the thought of it being altered in any way.
But, at its core, this debate and Dale’s ruling, is not about religion. It’s not about morality. It’s about continuing to fulfill the promise of America and combating what great minds such as John Adams and John Stuart Mill called the “tyranny of the majority.”
Just because a majority of Idahoans defined marriage eight years ago does not make it legal or even right. In 1890, Idaho’s founders attempted to use the State Constitution to deny Mormons and other minorities the right to hold office, vote or serve on juries. That action was as illegal as it was unjustifiable.
In her ruling, Dale spelled out clearly what we know to be true. With marriage comes privilege — adoption rights, access to an ill spouse in the hospital and the ability to make medical decisions for them and the right to jointly own commercial property, to name but a few.
Long before Dale, judges, politicians and philosophers warned about these kinds of democratically approved inequalities. In 1964, the U.S. Supreme Court, in Lucas v. Forty-fourth Gen. Assembly of Colorado, wrote: “A citizen’s constitutional rights can hardly be infringed simply because a majority of the people choose that it be.”
In his 1859 essay, “On liberty,” Mill wrote: “There needs protection also against the tyranny of the prevailing opinion and feeling, against the tendency of society to impose … its own ideas and practices as rules of conduct on those who dissent from them.”
And, in one of America’s most important founding documents, Federalist Paper 51, the father of our Constitution, James Madison, wrote: “In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger.”
Seventeen states and the District of Columbia legally recognize marriage equality. Judges in 11 states, including Idaho, have ruled gay marriage laws unconstitutional or compelled them to recognize all marriages from other states. Seven Idaho cities, including Idaho Falls, have passed ordinances prohibiting legal discrimination against gays and lesbians.
People are free to believe whatever they want about homosexuality. The church they attend is free to define marriage however it wants within its walls. But as Dale ruled and Madison, Mill and others were writing long ago, the power of the majority cannot be used to oppress a vulnerable minority.
Not in 1890.
Idaho is a better place because of Dale’s ruling. This great state will improve even more after the appeal fails and gay couples can begin enjoying rights too long denied them, because as Supreme Court Justice Robert Jackson wrote 65 years ago: “Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.”