As the US Supreme Court looks set to back down on abortion as a fundamental right protected by the US Constitution, the court’s conservative justices could do the same with same-sex marriage.
Based on the same legal argument revealed in a leaked draft opinion by Judge Samuel Alito, judges could overrule Obergefell v. Hodges in 2015 from the court, which declared that same-sex marriage was a fundamental right protected by the US Constitution.
“Analysis of Alito’s draft notice would be remarkably similar to what it would be at Obergefell,” said McKay Cunningham, professor of constitutional law and director of experiential learning at the College of Idaho, during of a telephone interview.
While some rights are fairly clearly protected in the Constitution (speech, press, religion, for example), you won’t find the words “abortion” or “same-sex marriage.”
In Roe v. Wade, the Supreme Court relied on the right to privacy under the Due Process Clause of the 14th Amendment to justify interpreting abortion as a basic constitutionally protected right.
The same right to privacy was used in Obergefell, when the court ruled that same-sex marriage was a fundamental right, long after many states had legalized same-sex marriage.
In his draft opinion on the abortion case, Alito argues that the court should not create new fundamental rights that could apply through due process. Moreover, even if the court could create new rights comprehensively, any right, according to Alito, should be “deeply rooted in the history and traditions of the nation”.
The right to abortion, Alito argues, is not.
“And therefore the states pretty much have carte blanche,” Cunningham said. “All states have to do is show that their law is rational. All they have to show is that they have a legitimate reason for the law, and morality is considered a legitimate reason in most cases.
Again, the same could be said for gay marriage.
The prospect of Obergefell being overturned is a frustrating prospect for Deborah Ferguson and Craig Durham of the Boise Ferguson Durham law firm, the two lawyers who won the 2014 Latta v Otter case that legalized gay marriage in Idaho, months before the Obergefell decision. .
“It’s a pretty radical draft document from Alito, and it’s deeply troubling,” Ferguson said in a phone interview. “I’d love to be able to say, well, you know, Obergefell could be singled out (from Roe vs. Wade), but really, what I find so disturbing, there’s no limiting principle in this (draft) decision. “
In other words, Ferguson said, Alito’s draft notice could extend to a whole range of other rights of American citizens that are not enumerated in the Constitution, such as same-sex marriage, marriage interracial and contraception, and returned to the states to regulate as the legislatures see fit.
“It seems the logic of Alito’s draft would apply to undermining the right to privacy in the Constitution and all of those rights in the substantive due process clause,” Durham said.
Gay marriage in Idaho
In 2006, voters in Idaho approved, with 63% of the vote, a constitutional amendment which declared: “A marriage between a man and a woman is the only national legal union which shall be valid or recognized in this State”.
In 2013, the National Center for Lesbian Rights filed a lawsuit, Latta v Otter, against the state of Idaho on behalf of four lesbian couples challenging the state’s ban.
In 2014, United States District Court Judge Candy Dale ruled in favor of the couples in the case. The state appealed to the 9th District Court of Appeals, which upheld Dale’s decision.
The state of Idaho asked the U.S. Supreme Court to issue an emergency stay, which the Supreme Court granted but reversed shortly thereafter, and same-sex couples began receiving licenses to wedding in Idaho in October 2014.
At the same time, the Obergefell case was making its way through the courts and ended up in the United States Supreme Court in 2015, eventually becoming the landmark case that legalized same-sex marriage in the United States.
It’s unclear exactly what the law would be in Idaho if Obergefell were overturned. That’s because the Idaho Constitutional Amendment was ruled unconstitutional by two lower courts without ever making it to the Supreme Court. Idaho’s 2006 Constitutional Amendment still stands. Idaho never repealed it, unlike other states.
Idaho also has on the books Idaho Code 32-209, which states that Idaho would not recognize a same-sex marriage from another state.
Again this year, the Idaho Legislature had a debate on a simple tax compliance bill. Some Republican lawmakers have been reluctant to bring a tax law up to federal standards because of the same-sex provision in the Idaho Constitution.
The bill, House Bill 472, simply brought Idaho into line with tax policy changes in federal law, but some right-wing lawmakers, such as Rep. Ron Nate, R-Rexburg, opposed, arguing that voting for the bill would violate the Idaho Constitution. , according to the Associated Press.
A total of 22 Republican lawmakers voted against the bill.
Go back on rights
Some have pointed out that Alito’s draft notice states that it only deals with abortion and not any other rights that fall under the right to privacy under the Due Process Clause.
“We emphasize that our decision concerns the constitutional right to abortion and no other right,” Alito wrote. “Nothing in this notice should be construed as challenging precedents that do not relate to abortion.”
Just because Alito wrote this doesn’t mean we should believe him, as Alito and Judges Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett had pointed out that Roe v Wade was set precedent, but here they destroy that precedent .
“A lot of these judges didn’t make a secret of it,” Cunningham said. “They have spoken at public events about how they would like to review some of these cases and overturn them. So if I was a bettor and an Obergefell type case came back, I don’t know what I would say, but it certainly wouldn’t be comfortable.
Durham and Ferguson pointed out that the Supreme Court has made “several bad decisions” in its history not to extend rights, especially to minorities, such as the Dred Scott decision and to allow Japanese internment camps, but “I think this is the first time we’ll have taken away something that has been considered a basic right for 50 years,” Durham said.
If the Supreme Court overturns the ruling that the right to marry is a basic right, you can probably bet the Idaho Legislature will try to ban same-sex marriage again.
A man, a woman
A few weeks ago, while browsing through the state’s legislative candidates, I came across the campaign website of Jaron Crane, who is running in District 12.
He is the son of former Idaho treasurer Ron Crane and the brother of Idaho Rep. Brent Crane, R-Nampa, the chairman of the House State Affairs Committee who said this weekend- end that he would hold hearings on legislation banning emergency contraception and abortion pills once the Supreme Court overturns Roe v. Wade.
One of Jaron Crane’s planks in his campaign platform is “pro-family” – but apparently only certain families.
“I believe marriage is between a man and a woman and it is the responsibility of our government to protect that union,” Jaron Crane writes, even though same-sex marriages have been legal across this country for almost seven years now. and marriage between a woman and a man is always protected.
A few weeks ago, his platform struck me as odd, like it was something out of ancient history.
Today, however, we can actually see where this is heading.
“Let’s say a case goes to the Supreme Court of the United States on this issue,” Durham said. “And they say we’re undoing Obergefell because that’s not implicit in the concept of orderly liberty in the history of our nation, so absolutely I think the Idaho constitutional amendment would be back in effect, and gay marriage would then be illegal in Idaho.”
So much for liberty and liberty.
Scott McIntosh is the Opinion Editor of the Idaho Statesman. You can email him at [email protected] or call him at 208-377-6202. Follow him on Twitter @ScottMcIntosh12.
This story was originally published May 11, 2022 4:00 a.m.
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