1:13-cv-00482 #60

Case 1:13-cv-00482-CWD Document 60 Filed 02/18/14 Page 1 of 4
Deborah A. Ferguson, ISB No. 5333 The Law Office of Deborah A. Ferguson, PLLC 202 N. 9th Street, Suite 401 C Boise, Idaho 83702 Tel.: (208) 484-2253 d@fergusonlawmediation.com Craig Harrison Durham, ISB No. 6428 Durham Law Office, PLLC 405 S. 8th Street, Suite 372 Boise, Idaho 83702 Tel.: (208) 345-5183 craig@chdlawoffice.com Shannon P. Minter Christopher F. Stoll National Center for Lesbian Rights 870 Market Street, Suite 370 San Francisco, California 94102 Tel.: (415) 392-6257 sminter@nclrights.org cstoll@nclrights.org Attorneys for Plaintiffs UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO SUSAN LATTA and TRACI EHLERS, et al., Plaintiffs, v. C.L. BUTCH OTTER, as Governor of the State of Idaho, in his official capacity, et al., Defendants, and STATE OF IDAHO, Defendant-Intervenor. DECLARATION OF SHANNON P. MINTER IN SUPPORT OF PLAINTIFFS REQUEST FOR JUDICIAL NOTICE Case No. 1:13-cv-00482-CWD
I, Shannon P. Minter, hereby declare and state as follows: 1. I am an attorney admitted pro hac vice before this Court and represent the
Plaintiffs in this action. I have personal knowledge of the matters stated in the Declaration and could and would competently testify to these facts. 2. 3. This Declaration is filed concurrently with Plaintiffs Motion for Judicial Notice. Plaintiffs counsel retained Legislative Intent Service, Inc., to obtain the official
legislative history for the above-mentioned bills, including the materials attached hereto as Exhibits A through F. 4. Attached hereto as Exhibit A is a true and correct copy of Idaho House Bill 658,
Chapter 331, Session Law 1996 (House Judiciary, Rules & Administration Committee, Feb. 15, 1996 Minutes). 5. Attached hereto as Exhibit B is a true and correct copy of Idaho House Joint
Resolution No. 2, Session Law 2006, p. 1359, ratified Nov. 7, 2006 (Senate State Affairs Committee, Jan. 29, 2005 Minutes). 6. Attached hereto as Exhibit C is a true and correct copy of Idaho House Joint
Resolution No. 2, Session Law 2006, p. 1359, ratified Nov. 7, 2006 (House State Affairs Committee, Feb. 2, 2006 Minutes). 7. Attached hereto as Exhibit D is a true and correct copy of Idaho House Joint
Resolution No. 2, Session Law 2006, p. 1359, ratified Nov. 7, 2006 (Statement of Purpose RS15639). 8. Attached hereto as Exhibit E is a true and correct copy of Idaho House Joint
Resolution No. 2, Session Law 2006, p. 1359, ratified Nov. 7, 2006 (Attorney General Opinion No. 06-1).
9.
Attached hereto as Exhibit F is a true and correct copy of Idaho House Joint
Resolution No. 9 of 2004, 57th Legislature, Second Regular Session, failed (House Judiciary, Rules & Administration Committee, Feb. 5, 2004 Minutes). 10. Plaintiffs also cite Idaho Attorney General Opinion No. 93-11 in their
accompanying Memorandum in Support of Motion for Summary Judgment. Attached hereto as Exhibit G is a true and correct copy of Attorney General Opinion No. 93-11. 11. Attached hereto as Exhibit H is a true and correct copy of an official ballot
pamphlet from the November 7, 1994 election. I sign this Declaration under penalty of perjury under the laws of the United States. DATED the 18th day of February 2014.
_______________/s/_______________________ Shannon P. Minter (pro hac vice) Attorney for Plaintiffs
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 18th day of February, 2014, I filed the foregoing document electronically through the CM/ECF system, which caused the following parties or counsel to be served by electronic means, as more fully reflected on the Notice of Electronic Filing:
Attorneys for Defendant Rich and Intervenor State of Idaho Steven Lamar Olsen steven.olsen@ag.idaho.gov Clay R. Smith clay.smith@ag.idaho.gov W. Scott Zanzig scott.zanzig@ag.idaho.gov,
Attorneys for Defendant Governor Otter Thomas C. Perry tom.perry@gov.idaho.gov Cally Ann Younger cally.younger@gov.idaho.gov
______/s/_________ Shannon P. Minter
Case 1:13-cv-00482-CWD Document 60-1 Filed 02/18/14 Page 1 of 5
EXHIBIT A
J+ouse,
Minutes
HOUSE JUDICIARY, RULES & ADMINISTRATION COMMITTEE

DATE: TIME: PLACE: MEMBERS: February 15, 1996
2:10 p.m.
Room 406 Representative Gould, Chairman; Representative Stubbs, Vice Chairman; Representatives King, Jones (9), Tippets, Sali, Kempton, McKeeth, Kjellander, Field, Hofman, Judd, Jaquet
Representative Stubbs Representative Alltus; Todd Joyner, IPAA; Lauren Simon; Mr. Speaker; Mike Gilmore, Attorney General's Office; Rev. Brian Baker; Dallas Chase; Stephen Rowley, ACLU; Dr. Mary Rohlfing; Debbie Graham; Andrea Baker; Rabbi Dan Fink; MaryEvelyn Smith; John Hummel; Robert Stevahn It was moved by Representative McKeeth, seconded by Representative Jones, to approve the minutes of the meeting held on February 13, 1996, as written. Motion carried. The first item on the agenda to be addressed was HB 711 and Representative Alltus was called on to explain.
GUESTS:
MINUTES:
HB 711
Representative Alltus said this bill defines rape and sets up criteria for the court to terminate parental rights in cases of rape, murder, or incarceration of a parent. He cited a case that caused the legislation to be drafted. Mr. Todd Joyner stood before the committee in support of the bill and asked that it be sent to the floor with a Do Pass recommendation. It was moved by Representative Tippets, seconded by Representative Hofman, to send HB 711 to the floor with a Do Pass recommendation. Motion carried. Representative Alltus will carry the bill on the floor. The next item to be presented was HB 465 and Representative Sali was called on to explain.
MOTION
HB465
Representative Sali said this bill provides a procedure allowing the adoption of adults by other adults. He said there had been some concerns raised regarding the language in the legislation by both the department of health and welfare and the department on aging. Therefore, amendments were drafted to clarify the meaning of the bill. He concluded his remarks by saying there had been no opposition to the bill. Mr. Lauren Simon was recognized to testify on the bill. Mr. Simon said he was a resident of Kuna and he had tried to adopt his adult stepdaughter whom he had raised from the time she was 5 years old. He discovered that he could not adopt her under the current law of the state of Idaho. Therefore, he asked the committee to send HB 465 to the floor with a Do Pass recommendation.
LEGI LE G SL GI SLAT AT TIV IVE E IN INTE TENT TE NT S SER ERVI ER VI ICE
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ABSENTI EXCUSED:
,'
MOTION
It was moved by Representative King, seconded by Representative Jones, to send HB
465 to General Order. with Committee amendments attached. Motion carried. Representative Stubbs will carry the bill on the floor,
The next item on the agenda to be presented was HB 707 and Mr. Speaker was called
on.
H8707
Mr. Speaker said this bill provides procedures and immunities for lawsuits brought under Article IX, section 1, of the Idaho Constitution . In particular, the bill sets forth who may sue under that section (school ch ildren and their parents or guardians) and the state (through the legislature or the superintendent of public instruction) and who may not sue (local school districts); the requirements for a successful suit against a local school district or against the state itself; and the judicial remedies available following a successful suit. The bill provides that the act w ill be effective on January 1, 1996, and will apply to pend ing lawsuits if the section is amended to require the legis lature to provide procedures and immunities for pending claims. The Speaker walked the members through each of the proposed changes in the leg islation.
A question and answer period followed with Mike Gilmore from the Attorney General's office answering several of the questions. A motion was made by Representative Jones to send HB 707 to the floor with I 00 Pass recommendation . The motion was seconded by Representative SaiL Motion carried. Representative Sali will carry the bill on the floor. The last item on the agenda was HB 658 and Mr. Speaker explained the legislation.
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MOTION
HB 658
Mr. Speaker said this legislation establishes a state policy on same sex marriages and places an evasion clause in the law. He said this bill is before the Committee because Ihe state of Hawaii is considering recogn izing same sex marriages which is forcing Idaho to make a chOice to either pass th is bil l reinforcing the current policy or recognize same sex marriages by default. He continued by saying the question will come up whether Idaho will be sued if this legislation is passed. It was the Speaker's feeling that the threat of a law suit should not prevent the passage of the bill . He concluded by saying this Committee and the Legislature need to debate and resolve this issue.
TESTIMONY The Reverend Brian Baker was called on to testify. Rev. Baker said he was opposed to HB 658 . He said fidelity, love and respect are the cornerstones of a family. When homosexua l couples embrace the values that marriage embod ies , they should be allowed to be married. He said no religious institution would be obliged to recognize same sex marriages. The next person to testify in opposition to the bill was Dallas Chase . Ms. Chase said she has been both legally married and she is a homosexua1. She said she has experienced the benefits of being legally married and she also knows quite well the inequalities and injustices this bill would perpetuate for same-gender couples. She pointed out benefits allowed heterosexual couples that are not allowed same sex couples. She concluded by saying the message she receives from this proposed legislation is that her life has no validity and she cannot expect entitlement to some of the same benefits enjoyed by heterosexual couples . The next person recognized to testify in opposition to the bill was Stephen Rowley representing the ACLU . He said there were several reasons why the bill should be
House Judiciary, Rules and Administration Committee Thursday, February 15, 1996- Minutes-Page 2
opposed. First, there are constitutional issues and he went over them in detail. Second, the language of the bill is flawed He said it was vague and over broad. Third , the bill drags the legislature and the courts of the state into matters that are between each person and that person's maker and, as such, there are moral, social and public policy reasons that the bill should be opposed. He said evidence indicates that homosexuals' emotional, psychological, social and economic stability are the same as heterosexuals. In conclusion, he said that lesbians and gays are a permanent part of our society and this bill ignores reality and principles of fairness by denying them their equality. The next person to testify in opposition was Dr. Mary Rohlfing . Dr, Rohlfing said she was a lesbian. She and her life partner made a commitment to share their lives together. She concluded her remarks by saying all citizens should be offered equal rights and protection and this Legislature will legislate morality should it pass this bill. She also requested that the legal ramifications be considered . The next person testity;ng in opposition was Debbie Graham. Ms. Graham said she was a registered nurse and a native Idahoan. She said she loves Idaho and it is concern for the state that brought her here to testify. She said the bill is not needed and it violates personal autonomy in forming relationships . In conclusion she asked the Committee not to send the bill to the floor with a Do Pass. The next person called on was Andrea Baker. Ms. Baker said she adamantly opposes the bill. She said she was a heterosexual woman, married and a mother. She has friends who are homosexuals. The individuals in these relationships have made life long commitments and they should be able to enjoy the same legal rights as heterosexual couples do. She said non-tolerance and persecution are not values she wishes to pass on to her children . The next person to testify was Rabbi Dan Fink. He said he was before the Committee on his own behalf and on behalf of the Idaho Rabbinical Association, He said it is important for us to atways know the difference between that which is stereotyped and that which is reality. He said people of faith and the people who make the laws cannot stand idle while neighbors are bleeding. He concluded by saying let's value real families , both heterosexual and gay, and provide justice for aU. The next person to be recognized was MaryEvelyn Smith. She sa id denial of rights to one group does nothing to safeguard the rights of the larger group and this bill is one of those laws that diminishes aU citizens . She said a strong marriage occurs because two people choose to work to make it happen. The amendments to the constitution guarantee equal ity for all which this bill does not. She concluded by asking the Committee to vote no on the passage of the bill. The next testifier was John Hummel. Mr. Hummel said he strongly opposes the bill. He said he is an attomey in Boise. He said denying gays and lesbians a recognition of marriage creates an injustice. He cited , as an example, a same sex couple who had been together for 20 years and amassed quite an estate. Then they separated and there was no legal way to divide the ir assets. He concluded by saying there was a denial of property rights in failing to recognize same sex marriages and he asked that the Committee vote no on the bil l. The last person to testify in opposition was Robert Stevahn. He said he has been married for 13 years and it is his view that the recognition of same sex marriages would not dilute the value of a traditional marriage. House Judiciary, Rules and Administration Committee Thursday, February 15, 1996-Minutes-Page 3
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LEGISLATIVE INTENT SERVICE
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.:.
MOTION
It was moved by Representative Sali, seconded by Representative Tippets to .end HB
658 to the floor with. 00 Pa recommendation. A discussion followed during which

Representative Sali said there WIS no time to do an in depth study of this issue. The legislation was drafted because the actions of Hawaii would dictate Idaho's policy if action were not taken. Representative Jaquat asked to be recorded as voting NO on the
motion. Motion canied.

At the conclusion of the meeting, the Chair pointed out that the deadline on hearing the House bills was approaching. Therefors, the members should plan on attending meetings that last later than usual in order to get the legislation through. There being no further business to come before the Committee , the meeting was adjourned at 3:50 p.m. Respectfully submitted,
Celia Gould, Chairman
House Judiciary, Rules and Administration Committee [Day and Date of Meeting]-Minutes-Page 4
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EXHIBIT B

MINUTES
SENATE STATE AFFAIRS COMMITTEE
DATE: TIME: PLACE: MEMBERS:
Friday, January 28, 2005 8:00 a.m. Room 437 Chairman Burtenshaw, Vice Chairman McKenzie, Senators Darrington, Geddes, Davis, Stegner, Little, Stennett., Malepeai
ABSENT/ EXCUSED: GUESTS: CONVENE:
None. See attached sign in sheet. Chairman Burtenshaw called the meeting to order at 8:04 a.m. He explained that the testimony would be limited to three minutes per person and directed the attention of the public to the timer on the podium. Senator Curt McKenzie opened his presentation by saying that he and Senator Sweet are representing 16 Senators who are asking the committee to send SJR 101 to the floor and allow a vote by the entire Idaho Senate. He also introduced Mr. Dale Schowengerdt, an attorney with the Alliance Defense Fund, who has knowledge of other states which have been through this amendment process. He stated that in Idaho, we have a fairly unique process to amend the Constitution. He stated that the citizens of Idaho are the gate keepers of the Constitution. He pointed out that a yes vote would show that we are a government of the people, by the people, and for the people. He remarked that the people of Idaho should have a vote on this fundamental issue and that such a vote would allow this to be placed on the ballot. He pointed out that recently, in November, citizens in eleven other states had the opportunity to vote on similar amendments and overwhelmingly supported protecting marriage in their state constitutions. He stated that the language in this amendment provides that the union of only one man and one woman shall be valid and recognized as marriage in this state. It also provides that the state and its political subdivisions shall not create or recognize a legal status similar to that of marriage. The phrase in the first sentence valid refers to marriages created within the state, the reference to recognized refers to unions formed out of the state and complies with the Federal Defense of Marriage Act that was recently upheld by a Federal Court in Florida. The second sentence refers to state and political subdivisions and clarifies that the prohibition refers only to government entities, like state agencies, departments or other state entities, from granting official recognition to non-familial or non-marital relationships except as provided under marriage law. He pointed out that the Louisiana Supreme Court recently upheld a similar amendment. He added that this amendment does not prohibit the state from adopting laws that would allow individuals to create reciprocal benefits between them, or to undertake legal obligations to each other,
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SJR 101:
LIS - 4b

but it does prevent extending a status similar to marriage. He pointed out that the Louisiana Court said that this Constitutional amendment does not impair any property rights which are not identical or substantially similar to the package of unique property rights necessary for marriage. It does not prohibit any couple from entering into contracts for property, or to designate each other for making critical life or medical decisions in cases of medical emergency where one is not conscious, or acting as power of attorney. It also does not prohibit an unmarried couple from making wills to leave their estates to one another. He read from the Indiana Court of Appeals discussion of this issue: On January 12, 2004, the Massachusetts Supreme Judicial Court ruled that only same sex marriages, not civil union, would satisfy that states constitution. Same sex couples have been marrying in Massachusetts since May of 2004. The City of San Franciscos Mayor issued marriage licenses to thousands of same sex couples and officials in other locales. Lawsuits similar to the one before us are pending in many other states. He concluded that Idaho is not an island and that what goes on in other states, especially neighboring states, does affect us. He added that the decision we make today is whether we are going to allow the citizens of Idaho to vote on this fundamental policy or whether we will just leave it to the courts to set this policy. He stated that some have argued that we do not need an amendment in Idaho because Idaho judges are elected and therefore wouldnt go against the will of the people. But simply being elected does not guarantee that an official will follow the will of the people on a particular issue. He further pointed out that unelected judges from the Federal 9th Circuit frequently interpret Idahos Statutes. Senator McKenzie pointed out that under Article 1, Section 1 of Idahos Constitution, all men, by nature, are free and equal and have certain inalienable rights, among which are enjoying and defending life and liberty. He added that by the decision of three out of the five Supreme Court Judges in Idaho or even two of the three 9 th Circuit Judges Idaho could be required to redefine marriage. He reported that the bottom line is that this is a fundamental issue for our society and that through this amendment process, we put this issue before the people of Idaho and let the people decide what they want the policy to be, which is the appropriate course. Senator Gerry Sweet reported that the Idaho Constitution has been amended 124 times since 1893. He pointed out that each of these amendments related to issues of great significance to the people of Idaho and stated that the institution of marriage is the foundation from which families are built on and should also be protected within the Constitution. He quoted an article by Dr. Matthew Spalding of the Heritage Foundations B. Kenneth Simon Center for American Studies, For thousands of years, on the basis of experience, tradition, and legal precedent, every society and every major religious faith have upheld marriage as a unique relationship by which a man and a woman are joined together for the primary purpose of forming and maintaining a family. This overwhelming consensus results from the fact that the union of man and woman is apparent and manifest in the most basic and evident truths of human nature. Marriage is the formal recognition of this relationship by society and its laws. While individual marriages are
SENATE STATE AFFAIRS January 28, 2005 - Minutes - Page 2
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recognized by government, the institution of marriage preexists and is antecedent to the institution of government, which in turn presupposes and depends on the institution of marriage. Societys interest in uniquely elevating the status of marriage among human relationships is that marriage is the necessary foundation of the family, and is necessary for societal existence and well-being. The basic building block of society is the family, which is the primary institution through which children are raised, nurtured, and educated, and develop into adults. Marriage is the cornerstone of the family. It produces children, provides them with mothers and fathers, and is the framework through which relationships among mothers, fathers, and children are established and maintained. Only in the context of family built on the foundation of marriage can the sometimes competing needs and interests of men, women, and children be harmonized. Because of its characteristic relationship with the family, marriage is uniquely beneficial to society. Based on existing studies comparing two-parent and single-parent households, social science overwhelmingly demonstrates that children do far better when they are raised by two married parents in a stable family relationship and that children raised in other household structures are subject to significantly increased risk of harm. Evidence further suggests that one reason children do better in a married household is not just the stability of having two parents, but the fact that a male and a female parent each bring distinctive strengths, perspectives, and characteristics to the family unit that benefit both children and the parents. Although we have little information concerning children raised in households with same-sex parents, what we do know is that marriage between a man and a woman provides unique social, economic, and health benefits for children, adults, and society in general. Moreover, because of the shared obligations and generational relationships that accrue with marriage, the institution brings significant stability, continuity, and meaning to human relationships and plays an important role in transferring basic cultural knowledge and civilization to future generations. Senator Sweet clarified four of the prominent inaccuracies: 1. Amendment is discriminatory. He cited the 1971 Minnesota Supreme Court case of Baker v. Nelson, 191 N.W.2d 185. He added that it does not violate the US Constitution, in particular, the Fourteenth Amendment. 2. Amendment impacts the rights of couples. He referred back to the Louisiana Supreme Court ruling that Senator McKenzie spoke of. 3. Amendment impacts existing common law marriages. He pointed out that after 1996, Idaho code abolished common law marriages. He added that common law marriages prior to 1996 will still be valid after passage of the marriage amendment. 4. Opponents just want to expand the definition of marriage. He pointed out that they want to radically redefine marriage. Senator Sweet remarked that we must not allow any adult special interest groups political agenda to deny our children the social ideal of marriage, or to use our children as test subjects in a risky social experiment with irreversible effects. He shared information on studies conducted by University of Michigan Professor David Chambers, studies conducted in the Netherlands, and another conducted by Harvard University Law Professor Mary Glendon. He concluded by asking who should decide the marriage issue in Idaho?
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He stated that in Massachusetts, it was four judges, and added that it should be decided by a vote of the people, in the form of a constitutional amendment. He then introduced Mr. Dale Schowengerdt with the Alliance Defense Fund, and Mr. William C. Duncan from the Marriage Law Foundation. Mr. Schowengerdt explained that this issue has erupted in the past three years and stated that he has been involved in 11 lawsuits. He pointed out that there are great efforts occurring to define marriage then shared a couple of recent efforts in Massachusetts and Washington. Mr. Schowengerdt reported that in Massachusetts, they were very explicit in defining marriage and applied the lowest level of scrutiny. In Washington, two superior courts overturned the definition that was also based on the lowest level of scrutiny. He concluded by saying that this issue will be decided in Idaho, but asked would it be decided by the Legislature and the people, or by the courts. Chairman Burtenshaw again defined the time allotment for testimony.
(800) 666-1917 LEGISLATIVE INTENT SERVICE
Below is a brief statement of each testimony. Full copies of each testimony are included in the State Affairs Committee Legislative Session Notebook. Ms. Julie Lynde with the Cornerstone Institute testified in support by explaining that marriage is the cornerstone of civilization and is foundational. It is the cornerstone of who we, as a civilization, are. She added that diluting and redefining that cornerstone has serious ramifications. She concluded that the amending process is needed for a time such as this. Mr. Fred Prouty of Mountain Home testified in opposition and said that he learned a few important rules from being a parent. He believes any combination of parents can raise their children well if they are involved with their children, create a family atmosphere and provide discipline. He shared 6 ideas relating to parenthood: never give up on your children; create a family atmosphere where children can develop good self-esteem; be involved in your childrens activities away from home; provide a positive home environment; know the people and groups that influence your children; and provide discipline. He concluded that these concepts work with any family style and added that as a school principal, he discovered that parents of the same sex had no more or less problems with their children than any of the other parental makeups. Mr. Brad Miller with Focus on the Family testified in support by saying that civil unions are unwise public policy because they teach our children and society that all close personal relationships are equal. He added that this is problematic because no society has ever been able to sustain itself with a buffet-like mentality of family; just pick what suits you, because all choices are equally valid. Mr. Scott Curtis, a trained Social Worker in Boise, testified in opposition by saying that this amendment does not address the raising of children and that a constitutional amendment preventing the establishment of any recognized civil unions for non-heterosexual couples does not outlaw

parenthood by such couples. Mr. Nathaniel Longstreet testified in support by saying that nature shows that the most stable societies are formed with monogamous relationships between one male and one female and that history shows that the strength of a society is founded on families formed with one man and one woman to raise children. Mr. Paul Rolig, a computer programmer, testified in opposition. He stated that he believes that freedom to marry whomever you want is a matter of equal rights under the law. He remarked that under Article 1, Section 4 of the Idaho Constitution bigamy and polygamy are forever prohibited in the state and concluded that this amendment is not needed. Senator Davis asked if he would strike the language about polygamy. Mr. Rolig replied that he does not propose a change to the Constitution at this time. Senator Davis asked him to explain why polygamy and bigotry were included in the laws. Mr. Rolig answered that bigotry was probably put there to prevent deformed births and that polygamy was to stop multiple partners from qualifying for benefits under one provider. He stated that these were there as a caution to care for financial situations of the State. Mr. Allen Marsh testified in support. He explained that committed homosexual relationships are radically different from married couples in several key respects: relationship duration; monogamy vs. promiscuity; relationship commitment; number of children being raised; health risks; and rates of intimate partner violence. He concluded that even though this amendment would not stop a federal judge from imposing his will on us, it will protect us from state judges and will put our state on the record as favoring the Federal marriage Amendment. Mr. Gene Arnold, former Idaho Senate Chaplain from 2003, testified in support by saying that he believes that the present political currents and the agendas of certain ardent social activists demand that he join the voices of those who are advocates for the proposed amendment to the Idaho Constitution. He added that it takes nothing away and adds no rights to any segment of people in this state, it simply affirms the ancient, commonly accepted, nearly universal definition of marriage. Ms. Karen Pfleger, teacher, testified in opposition by pointing out that Idaho has a history plagued with hate groups and discrimination. She stated that we need to move away from this history by embracing tolerance of all people and ensuring all people equal rights under the law rather than furthering a homophobic agenda. She asked the committee to not send a message that says Idaho is not tolerant. Mr. Christopher McGreer, retired Chaplain and Fighter Pilot for the US Air Force, testified in support of this amendment. He stated that this resolution is giving us a firm definition of marriage that is needed in the midst of our society in which to debate the social issues and the traditional family. He concluded that this is for the good of our society, the good of our beloved state, the good of America and for our families.
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Mr. James East testified in opposition. He reported that he is a conservative gay Idahoan, in a loving and committed relationship. He asked that if they cannot be married, then what are their alternatives? He then listed that he has spent more than 20 years trying to be straight. He pointed out that he knows of many who are pretending to be straight, are married with children, yet still long for homosexual intimacy. He remarked that this amendment will abandon more children to foster care, as wards of the state, denying them the chance to be adopted and raised in loving homes where they can receive stability, love, and learn values such as commitment, integrity, community and responsibility. He concluded that this will hurt children and families and is against the values and ideals of this great state and her people. Mr. Allen Gorin, representative of Toward Tradition, a national, public policy coalition of Jews and Christians who work together where common purpose exist testified in support. He brought up three main points raised last year with HJR 9: Discrimination; Compassion for gays; and the need for a Constitutional Definition of Marriage. He stated that he views this amendment as insurance and concluded by saying that some things are so precious that they warrant insurance against even the possibility that some harm may come to them. Mr. David Johns testified in opposition. He recounted an incident last summer where he was injured at a local water park and taken to the emergency room of a local hospital. He stated that because of hospital policy, the understanding nurse had to refer to his partner as his brother Jim for the night. He concluded that as a flight attendant for the past nine and a half years, he feels the most unsafe and receives the most bigoted remarks in Lewiston, Idaho Falls, Pocatello, Sun Valley, and Boise. Mr. Michael Duff, with United Families of Idaho, testified in support of the amendment. He stated that the family is the natural and fundamental unit of society and should be valued and protected accordingly. He stated that United Families of Idaho seeks to strengthen families by promoting: marriage between man and woman, founded on chastity before marriage and fidelity within marriage; the sanctity of human life including unborn children; the right and obligation of parents to love, protect, provide for, and teach their children; respect for laws, policies, programs, political structures, cultural norms, and religious values that preserve and protect the family; and compassion for the distressed and truly disadvantaged. He gave a brief discussion on the institutional history of marriage, the proper role of government, protecting the form and substance of marriage, and social justice. He then presented information on the Federal Constitutional Amendment and concluded with a call to action saying that passage of SJR 101 will reflect continued adherence to the fundamental principles that made our society as great as it is today. Mr. Don Curtis, retired General Manager of HP, testified in opposition. He shared three myths and explained how each are incorrect: being gay or lesbian is a choice; gays and lesbians are a threat to heterosexual marriage and the family; and constitutional change is the answer. He stated that we are not talking about some inanimate highway issue, but fellow human beings. He concluded that our humanity must be what
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unites us and asked the members to not let the constitution be what divides us. Mr. Ron Vieselmeyer a family and marriage crisis counselor with United Families of Idaho testified in support. He emphasized the important role that natural or traditional marriage and family play in the welfare of society. He shared with the committee findings from a postgraduate study he conducted for a paper on the homosexual matrix. He pointed out that married people are less likely to report, problem drinking, engage in risktaking behavior such as drunk driving, smoking, and drug abuse, and are less likely to contract a sexually transmitted disease. He further added that marriage has also been linked with reports of increased happiness, life satisfaction, and overall occurrence of positive emotions. He concluded that the best way to improve society is to improve its families. Senator Geddes asked what is societys responsibility to the gay community. Mr. Vieselmeyer replied that the gay community is not different than any other community and mentioned the gangs in California. He stated that it is the responsibility of society to provide stability and to protect the rest of society from dangers such as drunk driving among other things. Senator Malepeai asked about his statement on suicide rates being the highest among homosexuals and asked if this had something to do with non acceptance by society. Mr. Vieselmeyer responded that this has been part of the argument and added that he has personally done research on this. He stated that he is more convinced suicides by homosexuals is due to guilt and depression that they live with. Mrs. Susan Curtis a retired Nurse Manager with St. Lukes Regional Medical Center testified in opposition to the amendment. She shared with the committee that today is her 38 th wedding anniversary and explained that she is the mother of four. She also shared what her gay son has accomplished in becoming a responsible and reliable adult and how he deals with the dilemma of how to honor and validate his relationship with his significant other in a society that will support neither. She stated that she is here because she is convinced that putting in place a constitutional amendment that clearly disallows the legal recognition of any commitment, covenant, or bond that is similar to marriage is both discriminatory and wrong. She concluded that she represents all those who are seeking ways to choose their life-time partner; make commitments to those persons in an honorable and respectable and acceptable way; and be legally protected in their joint decisions regarding life, liberty, and the pursuit of happiness. She believes that these rights belong to all. Mr. Bill Duncan with United Families of Idaho testified in support. He stated that this is the simplest way to address this issue. He discussed true legal effects and raised three things: the amendment will not impact the ability of the Legislature to offer health insurance or other kinds of benefits; the Legislature is free to create any kind of scenario in the future as long as it does not redefine marriage or create a status substantially similar to marriage to give benefits through some other setting; and this would have no effect on private arrangements like wills, trusts, or other
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legal instruments. Senator Geddes asked him for his opinion as to what is adequate to reflect what we currently have in law versus a Constitutional amendment and what is the threat that this amendment is trying to address. Mr. Duncan answered that the reality is that we are trying to respond to something that we have not thought of before with regard to same sex marriage. He shared a story of a couple in Washington who sought a marriage license for a same sex marriage and were denied then sued the state in the 1970s. He added that this could happen in Idaho if the marriage statute were challenged today. The threat is that we cant control this without some kind of Constitutional amendment as to how courts in the state or out of state will interpret the statute in the future. There may be some other way to address this, but added that this is the simplest and less obtrusive. Senator Davis stated that in the spirit of intellectual honesty, Mr. Duncan would have to acknowledge that although same sex relationships can write wills and enter into contract, heterosexual couples do not need to and they would still be the beneficiary based on laws of succession. Mr. Duncan agreed that this was correct. He stated that marriage gives those rights automatically. He stated that even with SJR 101, they could create simple beneficiary laws that do something like that in the future where the people register in the state and then access those kinds of benefits like medical decision making, power of attorney, etc. Ms. Julianne Russell, a teacher of statistics, testified in opposition. She had her toddler child asleep in a backpack on her back. She asked the committee how history will view their role and their vote on this matter. She addressed the claims of thousands of studies on this issue and asked if they had read all of the research; noted who authored the research and funded it; who comprised the sample group and how were they chosen; was there a control group and how was it chosen; and how long was the study conducted. She listed the past choices made by politicians: Jim Crow laws, Internment Camps in WWII, and the guise of Manifest Destiny where the Indians were placed on reservations. She concluded that this vote will be scrutinized by future generations who will look to them for an explanation. Mr. Herm Steger testified in support. He called upon the committee to become gatekeepers for marriage. He concluded that we have a choice of leaving future generations a blessing or a curse and urged the committee to vote yes. Mr. Edwin Keener a retired pastor, testified in opposition by saying that this proposed legislation is hurtful, discriminatory, and unworthy of our Constitution. He urged the committee to have the courage to vote no. Mr. David Snyder with the Treasure Valley Pastors Policy Council testified in support. He pointed out that humans in society cannot make the decisions for society, but that almighty God must make that decision. He submits that we cannot make this decision. Mr. David Wettstein, Bishop of St. Stephens Episcopal Church and the
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Diocese of Boise, testified in opposition. He asked if this was good for the common good and what is just for our gay neighbors and our society. He concluded that together we may find more common good for all citizens of our state, rather than this attack on a minority. Mr. George Detweiler an attorney from Twin Falls testified in support. He said that the Massachusetts court decision in favor of gay marriage was an outrageous example of judicial tyranny. He concluded that an amendment must be enacted. Mr. Leland Whitlatch from the Cambridge Bible Church testified in support. He quoted Websters dictionary entry of marriage and Marry; testified to the following reasons: that since the beginning of time, it has been one man and one woman in all cultures world wide; studies show both a mother and a father are needed to raise healthy children; Genesis 2:24 and Ephesians 5:31 regarding God establishing marriage of one man and one woman; procreation occurs only through one man and one woman; the design of the physical differences and how they provide sexual union; and the overwhelming majority of other states who have voted for this same type of amendment. Mr. Adam Graham testified in support of the proposed amendment. He stated that even though we have strayed from traditional values, we can find our way back by re-affirming the values that made us great and by finding our strength once again in the bedrock of traditional marriage as God created and intended it. He concluded that the committee can help keep the hope of our society alive by passing this legislation. Ms. Shaun Engstrom, a freshman from North Junior High School testified in opposition. She pointed out that our country was formed because of the realization of an unfair suppression put on us by the British tyranny. She reported that ever since we won our independence from Britain, our nation has faced, and overcome, many social injustices: the slaves being ruled by masters; women being suppressed by society; and blacks being controlled by whites. She added that it seems like every generation has had their civil battle, and we are now facing the beginning of our own. She reminded the committee that the Declaration of Independence includes John Lockes theory of natural rights: life, liberty and the pursuit of happiness and stated that one should have the freedom to live where they want, to learn what they please, and finally the freedom to love who they wish. Ms. Tiffany Hall, a student at North Junior High, testified in opposition. She testified that the once women took their rightful place in the workforce, the gender roles with each parent started to deteriorate. As long as a child has enough love, and is raised in a supportive household, she does not believe that he gender of either parent should matter. She then provided some statistics that she gathered: 97% of students in public high school report regularly hearing homophobic remarks from their peers; 53% of students report hearing homophobic remarks being made by school staff; 45% of gays and 20% of lesbians have either experienced verbal harassment and/or physical violence because of their sexual orientation during high school. She concluded by asking the committee to not support SJR 101.
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Mr. Wendell Bartlow testified in support by saying that he desires Idaho to follow the lead of the 11 states that rejected homosexual marriage last November. He concluded by saying that protecting your own interests is not intolerance. Upholding traditional families is not intolerance. It is those who seethe with envy and who jealously seek to devalue real marriages who are the intolerant ones. Ms. Julie Fanselow explained that her brother is gay and in a long-term relationship. She stated that she opposes this because it fails to recognize the loving responsibility and commitment undertaken by couples of all kinds and that this resolution denies the essential humanity of a significant number of our citizens, which is unacceptable. She concluded that this is a real distraction from the real business of our state and urged the committee to vote no and move on to the business the taxpayers are paying them to do. Ms. Katherine Frazier, Financial Advisor, testified in support by saying that the institution of marriage is not broken. She stated that it was weakened when no-fault divorce was passed. She then quoted Genesis 2:22-24 regarding the creation of man and woman. She concluded that it is a concern of the State and trusts that Idaho will be one of the leaders in this movement. Mr. Nik Dumas, Travel Consultant, testified in opposition by chastising the Legislature for expending tax dollars to attempt to enter verbiage into the State Constitution that not only limits the rights of homosexual individuals, but also could very well nullify any common law marriages between heterosexual couples as well. He concluded that the Legislature should be addressing more prominent issues at hand and asked them to not let our state become one tainted with prejudice and filled with disrespect. Mr. John Elliot, Businessman, testified in support. He shared some experiences he has had with the 150 employees, most of which are between the ages of 20-25. He stated that it is hard enough with the prevalence of divorce in our society for kids today to understand marriage, its importance and the rock solid foundation that the union between one man and one woman provides. He added that without this amendment there is no guarantee that the institution of marriage will be preserved and have any hope of surviving. Mr. Tony Fisk testified in opposition by saying that rather than using the Constitution to limit the marital rights of your constituents, use it to protect and defend the rights of the citizens of Idaho. He mentioned Martin Luther King III who spoke of the opportunity for parents today to show their kids how to love instead of hate by leading by example and gave this quote, Judge people individually, by their merit and what they bring to the table. We all have talents, every last one of us. He concluded by asking the committee to make just, kind, and fair laws based on the best science and information that can be obtained at this point in our history and urged the committee to be open to change, to realize that change is the only constant in our history. Mr. Michael Hastings testified in support by saying that Idaho does need
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this amendment to our Constitution, or at least the opportunity to vote on the matter. He reported that homosexual unions are not natural union, regardless of how the media spins it and suggested that there have been countless studies of the harm caused to individuals and groups that participate in these unspeakable practices. He stated that we have passed no smoking laws because smoking causes cancer and stated that homosexual acts cause sickness, bodily harm, and a shortened life span by up to 20 years. He concluded that government is by the people, and for the people. By not allowing this issue to be put on a public ballot, this Senate will be sending a message that you dont have the confidence in your constituents to decide what is best for their families, their community, their state. A decision of this magnitude should not be decided behind the closed doors of the Senate, or by a rogue judge, but by the method that put the senators in the position they are in today, public vote. He urged the committee to let the people of Idaho decide. Ms. Josephine Halfhide testified in opposition of the legislation by sharing some numbers relating to children and traditional homes as well as foster care. She concluded by requesting that the committee consider focusing on assuring that the children who are in the custody of the State of Idaho receive appropriate services and stated that we should not extend valuable time, money, and energy on legislation without proper data confirming that children raised in non-traditional family settings are at risk. Reverend David Hardesty testified in support of the amendment by saying that this defines what marriage is rather than who one can marry. He pointed out that from the beginning, marriage was defined as one man, one woman. Ms. Vicki Worthan testified in support of the amendment by saying that same sex marriage is unnatural on the basis of nature and pointed out that this country was founded on Christian values. She shared that she has three children and that there have been times when she has been shouted at with such things like, Do you know what birth control is?, and Hey, do you know where babies come from?. She concluded that everyone, at one time, has been ridiculed for something and urged the committee to support this amendment. Ms. Carla Finis a Forensic Consultant, testified in opposition of the amendment. She informed the committee that Idaho has the fourth worst divorce rate of 5.6 per 1000 unions and stated that historically, the major causes for divorce and break up of the family are infidelity and stress due mostly to financial difficulties. She stated that if the purpose was to have an impact on reversing a trend of marriage and family dissolution, then perhaps they should bring legislation to outlaw divorce or to establish adultery as a felony as a reasonable course. She further asked the committee to not exchange the Aryan Nation bigotry for another. Mr. Jared Hawk, an Insurance Agent, testified in support. He shared his personal feelings about marriage; support of the existing Idaho law banning gay marriage; and why the State Constitution should be amended. He pointed out that the right to get married is not a right to marry whomever or whatever we choose, it is a limited right to marry
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someone of the opposite sex. He added that this right needs to be guarded by definition within the bounds of our law to secure marriage for generations yet to come. He concluded that an ounce of prevention is worth a pound of cure. and urged the committee to support SJR 101. Mr. Travis Riggs an Educator, testified in opposition. He shared a touching story of his wedding and reception followed by a discovery that his spouse had been diagnosed with a rare platelet disorder. He then explained that his spouse was a man. He pointed out that this legislation may force people to die alone in their hospital beds, or force their loved ones to be unemployed and have nothing if they were to die. He concluded that if the members of the committee have compassion for their neighbors and compassion for the people of Idaho, they should vote no. Mr. Jeff Estes of Fellowship Baptist Church testified in support by saying that he feels marriage is a foundation of society and should be defined for future generations. He stated that without this definition, there would be no moral anchor and that a man could marry his child, pet, or as one man tried, his T.V. He concluded that marriage between one man and one woman is time-honored and tested as the healthiest ground for nurturing children. He urged the committee to vote yes. MOTION: Senator Geddes made a motion to send SJR to the Floor with a DO PASS RECOMMENDATION. Senator McKenzie seconded the motion There was no committee discussion. The roll call vote was 5-4. Ayes: Darrington, Geddes, Davis, McKenzie, and Burtenshaw. Nays: Stegner, Little, Stennett, and Malepeai. There being no further business before the committee, Chairman Burtenshaw adjourned the meeting at 11:27 a.m.
VOTE:
ADJOURN:
Senator Don Burtenshaw Chairman
Lisa Lalliss-Skogsberg Secretary
DISCUSSION:
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EXHIBIT C
MINUTES
HOUSE STATE AFFAIRS COMMITTEE
DATE: TIME: PLACE: MEMBERS:
February 2, 2006 8:00 A.M. Gold Room Chairman Deal, Vice Chairman Smylie, Representatives Stevenson, Ellsworth, Black, Edmunson, Miller, Ring, Snodgrass, Garrett, Loertscher, Anderson, Andrus, Hart, Bilbao, Shepherd(2), Smith(30), Pasley-Stuart
ABSENTI EXCUSED: GUESTS:
Representative Black Please refer to the attached Committee sign-in sheet and see the names of those testifying highlighted below. Chairman Deal called the meeting to order at 8:04 A.M. with a quorum being present. The first order of business was to approve the minutes of Tuesday, January 31, 2006 and Wednesday, February 1, 2006.
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MOTION:
Representative Pasley-Stuart moved to approve the minutes of January 31,2006 as printed. The motion carried by voice vote. Representative Stevenson moved to accept the minutes of February 1, 2006 as written. The motion carried by voice vote.
MOTION:
Before the testimony on HJR2 began, Chairman Deal went over the ground rules for this hearing. He explained that the testimony would be limited to three minutes. He asked that (1) testimony be specific to the legislation; (2) that those testifying be respectful in their testimony; and (3) if their testimony is repetitive, state they are pro or con and agree with previous testimony.
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HJR 2
Representative Lawrence Denney, introduced HJR 2, legislation that proposes an amendment to the Idaho Constitution defining marriage. It states that a marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.
Why are we bringing this amendment? Article III, Section 24 of the Idaho constitution states liThe first concern of all good government is the virtue and sobriety of the people, and the purity of the home." This legislation should further well directed efforts for the promotion of temperance and morality . Some feel this amendment isn't needed because we already have a law on the books prohibiting same sex marriage. But there are ongoing challenges to laws like ours all over the country with a current challenge going on in Washington. Given the unsettled status of the law, a Constitutional amendment would strengthen the public policies concerning marriage that are currently articulated in Idaho Code - and likely preclude a state constitutional challenge. This is a policy question, a very important one, about one of the very
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core values of our society. No matter how you feel about marriage, we should all be able to agree that the people of Idaho should be included in this decision - a decision so fundamental to society. This amendment will allow the people of this state to express their opinion on this issue. Eighteen states have already passed similar amendments and several more will have the issue on the ballot this November. It is time for Idaho to act.
A brief summary of the testimony given at the hearing on HJR2 is presented

be/ow. Written testimony submitted will be made part of the official record kept in the Legislative Library minutes and in the House State Affairs Secretary's minutes.
PRO Julie Lynde, representing Cornerstone Institute of Idaho, spoke in favor of HJR2. Marriage is foundational - the cornerstone of who we as a civilization. Common sense reasons for the state to strengthen and protect marriage are (1) one of the greatest benefits to society is that it shelters and nurtures the next generation and (2) there is an impressive body of evidence that children with both a mother and a father do better academically, emotionally, and behaviorally. De-constructing marriage to include alternatives is just one more social experiment placed squarely on the backs of children. See Attachment 1 for complete written testimony. Representative Nicole LeFavour, Boise, spoke in opposition to HJR2. She reminded the members that those in the legislature have gay family members, neighbors, co-workers, close friends, but this is not talked about. People in our communities are like that. She asked that they consider the question that voters will be asked on the November ballot. She asked whether they are certain about the intent and effect of this amendment, certain enough to write into our Constitution those words. See Attachment 2 for complete written testimony. Leslie Goddard, Director of the Idaho Human Rights Commission, spoke in opposition to HJR 2 because she feels this resolution is clearly designed to prohibit same-sex civil unions. Gays and lesbians will be denied privileges that heterosexuals take for granted: public health insurance for partners, ability to inherit an estate without a will, or having a hospital recognize you as "next of kin" in a medical emergency. It took Idaho 90 years to remove discriminatory language against Mormons and people of Chinese descent. Costs of the process will be great, including not only money, but human energy and dignity as well. See Attachment 3 for complete written testimony. Tony Edmondson, representing himself, spoke in opposition to HJR2. He discussed how he and his partner of 35 years have cared for elderly parents and sisters. They have volunteered countless hours of public service, have been elected to city and county governments, and have served on various local and statewide boards and commissions. He stressed he is not a threat and is testifying because there are those who feel he threatens the sanctity of marriage and family. See Attachment 4 for complete written testimony_ Rabbi Dan Fink, Ahavath Beth Israel Synagogue, spoke in opposition to HJR 2. This has become an offensive debate. Somehow there is a belief that there is not enough to go around. There is enough love to go around for
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gay and straight people. Marriage as we now know it is not a biblical institution. Until recently in western world marriage was about business. If tradition mandates anything, it is expanding our notion of marriage to include loving adults who have been excluded from it. Urged that this bill be opposed.
CON
Paul Rolig, President of Humanists of Idaho and representing their members throughout the state, spoke in opposition to HJR 2. They oppose this bill because they support freedom of religion. This bill presents a very narrow view of religion. Government must restrict its governance to the secular aspects of marriage and not establish religious doctrine as law. See Attachment 5 for complete written testimony. Bryan Fischer, Executive Director of the Idaho Values Alliance, spoke in favor of HJR 2. He addressed three issues: (1) some argue that we don't need this amendment because we have a conservative judiciary in Idaho, yet our state supreme court changes with every election; (2) some say that allowing civil unions will not weaken the institution of marriage, but legitimizing marriage look-a-likes will weaken marriage; and (3) this amendment will not take away a single right - it will simply preserve the institution of natural marriage. See Attachment 6 for complete testimony. Amy Herzfeld, Executive Director of the Idaho Human Rights Education Center, spoke in opposition to HJR 2. This legislation brings no value to our state. Idaho's constitution is designed to protect our liberties, not deny fundamental rights and human dignity for the political benefit of a few. Americans are committed to values of equality and fairness. This legislation is a misguided attempt to codify discrimination. She urged that the members reflect on the profound human rights implications of legislation and take action to protect all Idaho families. See Attachment 7 for complete written testimony. Rev. Dr. Susan Watterson, citizen and Senior Pastor of the First Congregational United Church of Christ, Boise, spoke in opposition to HJR 2. United Church of Christ pastors have been performing services of union for same-sex couples since the 1980s. There are same-sex couples in their congregations who have been in faithful relationships and are raising children and grandchildren in loving, stable homes. Lesbian, gay, bisexual, and transgender persons are not a threat to the institution of marriage. See Attachment 8 for complete written testimony. Clayton Cramer, representing himself, spoke in favor of HJR 2. He said he moved to Boise from San Francisco in 2001. You've heard that the claim of banning same-sex marriage is similar to laws banning interracial marriage this is wrong for various reasons. Laws to ban interracial marriage was not universal to the US. He is not aware of any society anywhere until recently that has recognized same-sex marriage. Prefers we do not define marriage in the Constitution because it limits further changes, but prefers that the legislation would limit the authority of the judiciary to alter the definition keep the powers where they belong with the Legislators and the people. Gwendolyn Kimball, representing herself, spoke in opposition to HJR 2 because she feels this legislation discriminates against one-tenth of our population: our gay, lesbian, transgender and bisexual community. Her
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daughter Cynthia came out when she was 29. Cynthia is the best daughter, friend, professor, aunt, sister, niece, and partner and her parents will advocate for her and others who are born to be different in their sexual orientation. See Attachment 9 for complete written testimony.
CON
Andrea Shipley, Board Member, Your Family, Friends and Neighbors, an organization dedicated to issues affecting the lesbian, gay, bisexual and transgender community. She spoke in opposition to HJR 2, saying never before in our state's history have we amended our sacred constitution to exclude people from legal protections. This marriage amendment also affects straight families opting not to marry. They will face all the legal battles and expenses that same-sex couples do. It is fiscally irresponsible to let this bill go any further. See Attachment 10 for complete written testimony. George Detweiler, Attorney from Twin Falls representing himself, spoke in favor of HJR 2. He stated that this amendment is necessary because of national movements by such groups as NAMBLA (North American Man-Boy Love Association, and others), to use the Full Faith and Credit clause of the US Constitution (Article 4, Section 1) as a means to force all states to recognize non-traditional unions (same sex, multiple partner, adult-child) performed in Massachusetts and Vermont, which already allow same-sex marriages. Signed petitions from citizens in the Magic Valley who are in favor of this legislation are included in Attachment 11. Julianne Russell, representing herself and her family, spoke in opposition to HJR 2. Mrs. Russell was accompanied by her husband and her four children and said she was wearing the hats of a teacher, a wife and a mother. She said each of these roles has a different perspective and yet from each perspective she concluded that this legislation is WRONG. As a teacher, as wife and s a mother she asked that the members rethink their position on this piece of legislation that she finds to be unnecessary, exclusionary and discriminatory. See Attachment 12 for complete written testimony. Delmar Stone, resident from Nampa, licensed master social worker, and the Lobbyist for the Idaho Chapter of the National Association of Social Workers, spoke in opposition to HJR 2. Scientific literature strongly indicates that sexual orientation is far from being a voluntary choice. Research also undermines negative assumptions about gay men and lesbians as parents. The National Association of Social Workers calls on the Legislators not to pass legislation that divides our state and promotes bigotry. See Attachment 13 for complete written testimony. Greg Fadness, Pastor of Lighthouse Congregation in Twin Falls and father of five, spoke in favor of HJR 2. He said he is very concerned about the nation we we are passing down to our children. Understands the heartfelt arguments that come from the gay and lesbian communities. God does loves all sinners. There seems to be a concerted effort to cut loose from our moorings, its foundation, creating immoral chaos. There is one race, the human race. By adopting this amendment, Idaho can set a good example, not of intolerance, but strengthen that which is good by passing this amendment.
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Alex Daw, representing BSU BGLAD and its sister organizations throughout Idaho, spoke in opposition to HJR 2. These organizations have described this legislation as an answer to a non-existent problem. They agree that marriage is a sacred institution and disagree that allowing gays and lesbians to marry will degrade that institution . Our nations founding fathers were very smart to set up an institution to protect the minority - the judiciary. It is unwise to ban the third branch of government from having a say in this matter, and this amendment would do just that. Many fellow students have come up to say what a bad idea this is. Stand up for the rights of the minority. Monica Hopkins, representing herself, spoke in opposition to HJR 2. She stated that Idaho's adoption of the Defense of Marriage Act in 1996 makes this amendment extreme and unnecessary. Each church, synagogue and house of worship is still able to make decisions according to their traditions and beliefs. This is what a constitution is designed to do, protect people from discrimination. Her and her partner respect the right of religious institutions to honor their traditions and beliefs. See Attachment 14 for complete written testimony Rev. Ed Keener, representing The Interfaith Alliance of Idaho and Parents & Friends of Lesbian and Gay persons, spoke in opposition to HJR 2, saying these organizations see no positive benefit for the citizens of Idaho in defining marriage in our Constitution. Rather than seeing homosexuality as a threat, they see the opposite. They are our mentors, civic leaders, teachers and neighbors. See Attachment 15 for complete written testimony. Dr. James Smith, representing himself, spoke in opposition of HJR 2. He said he is a volunteer for Your Family, Friends, and Neighbors, an organization that represents over 100,000 Idahoans that oppose this legislation and will be harmed by its addition to our state constitution. He talked about his ancestors seeking freedom nearly 400 years ago, and he feels it is inappropriate to modify our state constitution to limit freedom. See Attachment 16 for complete written testimony. Marty Durand, Legislative Counsel for the American Civil Liberties Union of Idaho spoke in opposition to HJR 2, stating that ACLU of Idaho urges them to oppose amending the Constitution to deprive committed couples in Idaho, including lesbian and gay couples, of any legal protection of their lifelong relationships. Such an amendment is unnecessary and fundamentally unfair. Fundamental unfairness of the proposed amendment is of concern beyond the lesbian and gay community. Nearly half of the Fortune 500 companies offer domestic partner benefits. See Attachment 17 for complete written testimony. Elysse Barrett, representing America's Renewal, spoke in support of HJR 2. Family goes back three generations in Idaho. She said she is passionate about preserving our state and is concerned about our society her younger siblings are growing up in. She represents her generation and feels they need to stand and make their voice be heard. Truth can be discussed and debated, but truth never changes remains the same. Marriage is God given and the core of social relationships and needs to be preserved and protected. Idaho has always protected traditional marriage. Have opportunity to preserve and protect traditional marriage.
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Kathy Haley, Lobbyist, representing Idaho Women's Network, spoke in opposition to HJR 2. She believes HJR 2 would write discrimination into our Idaho constitution which was written to guarantee that all citizens are afforded the same protections, and our democratic process is in place to protect the minority from the majority in case of discrimination. She feels this is a civil rights issue. Denying some couples any recognition of their committed relationships takes away legal access to rights inherent to married couples. See Attachment 18 for complete written testimony.
Jim East, representing himself, spoke in opposition to HJR 2, saying this amendment could be used to prevent him and is partner from ever having any kind of recognition from the state. He was concerned about having to lie to see his partner in a hospital, about health insurance, and about more children being raised in homes where their parents do not love each other if this amendment passes. See Attachment 19 for complete written testimony. Mike Duff, President of United Families of Idaho, spoke in favor of HJR 2, stating that the institution of marriage was not created by government and it must not be redefined by unelected, activist courts "legislating" outside the bounds of the Constitutional balance of powers. The courts will redefine marriage as they have in other states. Idahoans understand that the most profound and emphatic legal and more statement a free people can make is to place it in their constitution. See Attachment 20 for complete written testimony. Nik Dumas, representing himself and Kevin Skinner who could not be here, declared his fierce opposition to HJR 2. Pains him to see this legislation being considered. He cited the cost of this legislation and feels this legislation limits individual rights and it will hurt Idaho's economy and businesses, in the long run. Article 1, Section 1 of the state Constitution says all men by nature are free and equal regardless of who they are. Litigation from this legislation may take years. Religious beliefs are not being threatened. He urged the members to think of addressing other more pressing issues in the state.
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Eileen Banholzer, concerned citizen representing herself, spoke in favor of HJR 2. She said she traveled this morning to let them know there are people who are concerned about marriage. Union of a man and women will produce our next generation of children. She asked for their support to do whatever they can to strengthen marriage. She said she polled her family and neighbors who are also concerned about strengthening marriage .. Robert Brown, citizen representing many family and friends, spoke in favor of HJR 2. Has learned a lot from those who do oppose this movement .are against this amendment. If you are against the amendment then what definition will we have in its place. Where do we draw the line. What is proposed is not a change, but a further anchoring of what is in place. It is the Legislator's sworn duty to preserve the purity of the home. Youth are more likely to turn to crime when not raised in a home with a mother and father. Strong homes creates strong communities. The final decision will be with the people, not the Legislature if this amendment passes. Consideration of the family should be the center of all legislation.
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Allen Gorin, Idaho representative of Toward Tradition: a national, public policy coalition of Jews and Christians who work together where common purpose exists. He focused on three main points raised by those opposing last year's amendment (1) discrimination, (2) compassion for gays, and (3) the need for a constitutional definition of marriage. He made an analogy of insuring a house and insuring what's inside the insured house - the traditional family unit, saying he views this constitutional amendment as that added level of insurance. See Attachment 21 for complete written testimony. Steven Thayn, citizen representing himself, spoke in favor of HJR 2 for two reasons. First, public policy such as marriage should be made in the legislative branch of government, where the public and elected officials can have an open debate about the pros and cons of any proposed legislation. Second, what is wrong with supporting traditional marriage? Many of our most vexing social problems are a direct result of family breakdown. This amendment simply codifies the belief in the ideal family. See Attachment 22 for complete written testimony.
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Donna Yule, citizen representing herself, spoke in opposition to HJR 2. She said she wants to speak up for her son. She said she is like all parents who want their children to be happy and have good jobs. Her youngest son is gay and in a long-tem relationship. She feels the dumbest argument is that same-sex marriage poses a threat to traditional marriage. Britton Holdaway, citizen representing himself, spoke in support of HJR 2, stating that the issue is not about equal rights, unfair treatment, or secondclass citizenship. It is about whether or not we want unelected officials violating the good faith of this state's citizens by legislating humanistic morality from the bench. Voting for this amendment does not advocate hate or disenfranchise homosexuals or write discrimination into the Constitution. It reaffirms the sanctity and importance of traditional family. See Attachment 24 for complete written testimony. Chris Harriman, Twin Falls, spoke in favor of HJR 2, stating he is grateful to be able to add his voice in favor of this legislation. Judicial activism threatens marriage and placing this amendment on the ballot allows citizens to codify marriage as a legal union between one man and one women. It is not likely that Washington will address this issue so states need to continue to take action . He said he comments are not meant to be mean spirited.
PRO
PRO
LEGI LE G SL GI S AT ATIV IVE IV E IN INTE TENT TE NT T SER RVI V CE C
Janette Kurz, citizen representing herself, spoke in favor of HJR 2. She and her husband Robert have been happily married for 12 years. She was raised in Bulgaria which was part of the Communist regime and her father spent 10 years in a Communist prison because he upheld social values. The most valued part of the Bulgarian society is the sacred covenant of marriage between one man and one woman and is considered the only sacred union in Bulgaria. Future societies depend on the decision to protect marriage. See Attachment 23 for complete written testimony.
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PRO
Katherine Frazier, 40-year citizen of Boise, spoke in favor of HJR 2, stating this is a moral issue and she is offended by those who have turned this around and claim we are immoral. Her husband, Dr. George Frazier, shares her belief that the proper definition of a legal union is between a man and a women. She is sorry the divorce laws have been cheapened. This issue needs to be voted on. She wishes no evil to anyone.
PRO
Pat Burnam, spoke in favor of HJR 2 on behalf of the Idaho Eagle Forum. She urged that this measure be placed on the ballot to allow the people to exercise their voting rights. Marriage is the oldest social institution know to mankind and the greatest threat to our nation is the demise of marriage and the family. The Idaho Eagle Forum affirms that children need both a father and a mother in the home for optimal growth and development. Marriage between a man and a woman further undergirds the structure of society, culture and government. See Attachment 25 for complete written testimony.
The testimony being completed, Chairman Deal said he appreciated the high road taken during the testimony. Thirty-eight people testified. A short break was taken before concluded the hearing. Chairman Deal called the meeting back to order and asked Representative Denney to give a brief summary of the legislation. Representative Denney stated this is a very fundamental societal question. This is not a policy change but a policy reinforcement. It does not take away current rights, but elevates the protection of marriage to the constitutional level.
MOTION:
Representative Stevenson made a motion to send HJR 2 to the floor with a DO PASS recommendation. He said he had heard a great deal of discussion about not having access to partners in hospitals and indicated that this issue needs to be addressed in that arena.
ADJOURN:
Chairman Deal thanked everyone for their testimony and for their courteousness to him. There being no further business to come before the Commit e, the meeting was adjourned at 10:40 A.M.
Karen Daniels Secretary
HOUSE STATE AFFAIRS February 2,2006 - Minutes - Page 8
L GI LE GISL SLAT SL A IV AT IVE E IN NTE TENT NT T SERVI ER RVI VICE CE
ROLL CALL VOTE:
A roll call vote was called for. The motion to send HJR 2 to the floor with a DO PASS recommendation passed by a 13 to 4 vote. Representatives Deal, Smylie, Stevenson, Ellsworth, Edumnson, Snodgrass, Garrett, Loertscher, Anderson, Andrus, Hart, Bilbao, and Shepherd (2) voted "Aye" and Representatives Miller, Ring, Smith (30), and Pasley-Stuart voted "Nay". Representative Black was excused. The measure passed by more than a 2/3 vote and will therefore be sent to the floor with a DO PASS recommendation.
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EXHIBIT D
STATEMENT OF PURPOSE RS 15639 The language of this bill, including the term "domestic legal union" is intended to protect marriage as being only between a man and a woman. It is intended to prohi,bit recognition by the' State of Idaho, or any of its political subdivisions, of civil unions, domestic partnerships, or any other relationship that attempts to approximate marriage, no matter how denominated. The language is further intended to prohibit the State of Idaho, or any of its political subdivisions, from granting any or all of the legal benefits of marriage to civil unions, domestic partnerships, or any other relationship that attempts to approximate marriage. It is the intent that the language of this bill shall not (a) interfere with the ability of persons or entities to enter into private contracts; (b) interfere with the ability of a person to provide for the disposition of their property at death, including through wills or trusts; (c) interfere with the ability of a person to name representatives, including financial or medical powers of attorney, or to choose guardians or conservators, through the means provided by the statutes of the State of Idaho.
FISCAL NOTE The fiscal impact to the General Fund will be $50,000.00 (fifty thousand dollars) to cover costs of placing the measure on the ballot.
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Contact Name: President Pro Tern Robert Geddes Speaker Bruce Newcomb Rep. Lawerence Denney Rep. Mike Moyle Phone: (208) 332-10QO
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STATEMENT OF PURPOSE/FISCAL NOTE
HJR 2
LE L EGI ISLATIVE INTENT T SERVI V CE
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EXHIBIT E
STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL LAWRENCE G. WASDEN
ATTORNEY GENERAL OPINION NO. 06-1
Hand Delivered Honorable Lawerence Denney Majority Leader Idaho House of Representatives STATEHOUSE Per Request for Attorney General's Opinion Regarding Proposed Amendment to the Idaho Constitution Dear Representative Denney: The Idaho Legislature IS considering a proposed amendment to the Idaho Constitution concerning marriage. You have written that the proposed amendment is to ensure the State of Idaho's policy provides for and protects the traditional institution of marriage, and you have. requested the Attorney General's opinion regarding several questions. This opmlOn responds to your questions concerning the constitutionality of marriage laws and the potential impact of a constitutional marriage amendment on certain rights and benefits under current Idaho law. This opinion is not intended to address the particular language of the proposed marriage amendment currently under consideration. QUESTIONS PRESENTED For purposes of this opinion, your questions are summarized as follows: 1. Without a defense of marriage amendment, is it possible for the Idaho Supreme Court to recognize a marriage solemnized in another state that is not between a man and a woman? Will a defense of marriage amendment directly conflict with any provisions of the United States Constitution?
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P.O. Box 83720, Boise, Idaho 83720-0010 Telephone: (208) 334-2400, FAX: (208) 334-2530 Located at 700 W. Jefferson Street, Suite 210
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Case 1:13-cv-00482-CWD Document 60-5 Filed 02/18/14 Page 3 of 32 Honorable Lawerence Denney Page - 2
3.
Will a defense of marriage amendment inhibit the ability of any individuals to conduct business of any nature via contract or interfere with powers of attorney? Will a defense of marriage amendment interfere with the right of a person to leave property by a will to anyone of his or her choosing? Will a defense of marriage amendment interfere with: (a) the rights of unmarried persons to cohabitate; (b) the rights of extended family members to help raise minor members of their family; (c) the rules regarding the making of medical care decisions by unmarried persons; or (d) the ability of unmarried persons to visit each other if one is hospitalized?
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4.
5.
CONCLUSIONS
1. Idaho Code 32-201 and 32-209 limit marriage under Idaho law to a marriage between a man and a woman. Without a marriage amendment, a couple who seeks to solemnize their relationship in Idaho could bring a lawsuit alleging that Idaho's marriage statutes violate the due process and equal protection clauses of the Idaho Constitution. Idaho Const. art. I, 1-2. A couple that seeks recognition in Idaho of a relationship solemnized in another state could further claim that full faith and credit is due the relationship under the United States Constitution. U.S. Const. art. IV, 1. Although the Idaho Supreme Court would probably reject these challenges under current law, a marriage amendment would bar a challenge under the Idaho Constitution and would strengthen Idaho's current statement of public policy rejecting same-sex marriages formed in other states. Ultimately, the United States Supreme Court will face and probably uphold marriage laws that limit marriage to a man and a woman as constitutional under the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution, but there are no guarantees given wide discrepancies in the current case law. U.S. Const. amend. XIV. In Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed Baker v. Nelson, 409 U.S. 810, 93 S. Ct. 37, 34 L. Ed. 2d 65 (1972), the Supreme Court summarily dismissed on appeal, without discussion, a federal constitutional challenge to a marriage statute that limited marriage to a man and a woman. Some courts have held that Baker v. Nelson is determinative of a federal constitutional challenge, but other courts have questioned or ignored its precedential value. Numerous federal and state courts have addressed the constitutionality of marriage laws and reached opposite decisions on similar facts and arguments. A marriage law that not only defines marriage as between a man and a woman but also prohibits recognition of other domestic relationships faces additional federal constitutional hurdles.
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3.
A marriage amendment need not be drafted to inhibit the ability of individuals to conduct business via contract or powers of attorney. Contracts with third parties outside of a same-sex relationship should not be invalidated by a marriage amendment. A same-sex couple's contract with each other would more likely be upheld on contract principles than rejected as an unenforceable legal union akin to marriage. Powers of attorney are generally not dependent upon marriage and, therefore, should not be invalidated by a marriage amendment. A marriage amendment need not be drafted to interfere with the right of a person to leave property by a will to anyone of his or her choosing. Because the right to leave property by a will is not dependent upon marital status, the right to leave property by a will should not be invalidated by a marriage amendment. A marriage amendment need not be drafted to impair the decisions of unmarried persons to cohabitate, or the rights of extended family members to raise minor members of that extended family. A marriage amendment should not invalidate current statutes governing medical care decisions or hospital visitation rules. A marriage amendment that not only defines marriage as between a man and a woman but also prohibits recognition of other domestic relationships carries a higher risk of affecting relationships outside of traditional marriage.
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4.
5.
BACKGROUND
In 1967, in Loving v. Commonwealth of Virginia, the United States Supreme Court established marriage as a fundamental right protected by the Fourteenth Amendment of the United States Constitution. 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967). In Loving, the United States Supreme Court held that Virginia's miscegenation statutes which outlawed interracial marriages violated both the substantive due process and equal protection clauses of the Fourteenth Amendment. 388 U.S. at 12, 87 S. Ct. at 1824. "The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." Id. Traditionally, the courts have refused to recognize any right of same-sex couples to marriage. In 1971, in Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed Baker v. Nelson, 409 U.S. 810, 93 S. Ct. 37, 34 L. Ed. 2d 65 (1972), a same-sex couple who were denied a marriage license claimed that they had a fundamental right to marry and that restricting marriage to couples of the opposite sex violated equal protection principles. On appeal, the Minnesota Supreme Court held that same-sex couples do not have a fundamental right to marry under the United States Constitution. 191 N.W. 2d at 186. The court reasoned: "The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the
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book of Genesis." Id. The court also rejected the couple's equal protection claim, holding that prohibiting same-sex marriage was not invidious discrimination. Id. at 187. Several early cases are in accord with Baker v. Nelson. See, Adams v. Howerton, 486 F. Supp. 1119, 1124-25 (C.D. Cal. 1980) (upholding prohibition of same-sex marriage under Colorado law and federal immigration law); Singer v. Hara, 522 P.2d 1187, 1197 (Wash. Ct. App. 1974), rev. denied, 84 Wash. 2d 1008 (1974) (upholding prohibition of same-sex marriage under Washington and federal law); Jones v. Hallahan, 501 S.W.2d 588, 588-89 (Ky. Ct. App. 1973) (citing Baker v. Nelson, fmding no constitutional protection for right of marriage between persons of the same sex); Anonymous v. Anonymous, 325 N.Y.S.2d 499, 500 (N.Y. Sup. Ct. 1971) ("Marriage is and always has been a contract between a man and a woman"). In 1993, however, the Hawaii Supreme Court made a stark departure from the traditional rule and held that prohibiting same-sex marriages violated the equal protection provisions of the Hawaii Constitution. Baehr v. Lewin, 852 P.2d 44, 67 (Haw. 1993), superseded by constitutional amendment, Smelt v. County of Orange, 374 F. Supp. 2d 861,875 (C.D. Cal. 2005). Congress responded to Baehr by proposing the Defense of Marriage Act ("DOMA") which was enacted in 1996. 1 U.S.C. 7 (1996); 28 U.S.c. 1738C (1996). DOMA defines marriage for purposes of federal law as limited to opposite-sex couples:
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In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife.
1 U.S.C. 7. DOMA also allows states to refuse recognition of same-sex marriages recognized in other states: No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship. 28 U.S.C. 1738C.
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Many states followed suit and enacted defense of marriage statutes. Idaho already limited marriage to a man and a woman. See 1993 Idaho Att'y Gen. Ann. Rpt. 119, 132 ("The State of Idaho does not legally recognize either homosexual marriages or homosexual domestic partnerships."). However, Idaho modified its marriage laws to bar recognition of same-sex marriages formed in other jurisdictions. Idaho Code 32-201(1) states: Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of parties capable of making it is necessary. Consent alone will not constitute marriage; it must be followed by a license and solemnization as authorized and provided by law. Marriage created by a mutual assumption of marital rights, duties or obligations shall not be recognized as a lawful marriage. Idaho Code 32-209 states: All marriages contracted without this state, which would be valid by the laws of the state or country in which the same were contracted, are valid in this state, unless they violate the public policy of this state. Marriages that violate the public policy of this state include, but are not limited to, same-sex marriages, and marriages entered into under the laws of another state or country with the intent to evade the prohibitions of the marriage laws of this state. Despite DOMA, over the past decade a growing number of state courts have followed Baehr and struck down marriage statutes that limit marriage to a man and a woman under their state constitutions. See, e.g., Baker v. State of Vermont, 744 A.2d 864, 886 (Vt. 1999) (exclusion of same-sex couples from benefits and protections of marriage violated Vermont Constitution); Goodridge v. Dept. of Public Health, 798 N.E.2d 941,969 (Mass. 2003) (limitation of marriage to persons of opposite sex violated equal protection principles under the Massachusetts Constitution). In response, several states have passed defense of marriage amendments to their state constitutions. 1 Some marriage amendments only define marriage as between a man and a woman. Other marriage amendments define marriage as between a man and a
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1 See, e.g., Ala. Const. art. I, 25 (1999); Ark. Const. amend. 83 (2004); Ga. Const. art. I, 4 ~ I (2004); Ky. Const. 233A (2004); La. Const. art. XII, 15 (2004); Mich. Const. art. I, 25 (2004); Miss. Const. art. XN, 263A (2004); Mo. Const. art. I, 33 (2004); Mont. Const. art. XIII, 7 (2004); Nev. Const. art. I, 21 (2002); N.D. Const. art. XI, 28 (2004); Ohio Const. art. XV, 11 (2004); Okla. Const. art. II, 35 (2004); Or. Const. art. XV, 52 (2004); Tex. Const. art. I, 32 (2005); Utah Const. art. I, 29 (2005).
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woman and also prohibit legal recognition of other domestic relationships, such as samesex marriages, domestic partnerships and civil unions. The broader the scope of the amendment, the more likely a constitutional challenge will be brought. ANALYSIS
I.
EFFECTS OF THE PASSAGE OF A MARRIAGE AMENDMENT UPON SAME-SEX UNIONS ENTERED INTO IN OTHER STATES You have asked whether, without a marriage amendment to the Idaho Constitution, the Idaho Supreme Court could recognize a marriage solemnized in another state that is not between a man and a woman. Your question actually poses two inquiries. First, without a marriage amendment, could the Idaho Supreme Court conclude that the prohibition of same-sex marriage under Idaho Code 32-201 and 32-209 violates the Idaho Constitution? Second, even though same-sex marriages are not recognized under the Idaho Code, could the Idaho Supreme Court be required to recognize a same-sex marriage formed in another state?
It is unlikely that the Idaho Supreme Court would adopt marriage policies contrary to those articulated in Idaho Code 32-201 and 32-209. However, as discussed below, a marriage amendment would preclude a state constitutional challenge and would reinforce Idaho's public policy against recognizing same-sex marriages solemnized in other states.
A.
Without a Marriage Amendment, Whether a State Constitutional Challenge Could be Brought Against Idaho's Marriage Statutes
Without a marriage amendment, a challenge could be brought that prohibiting same-sex marriage under Idaho Code 32-201 and 32-209 violates the due process and equal protection clauses of the Idaho Constitution. Idaho Const. art. I, 1-2. A state constitutional challenge might be brought by a same-sex couple who wishes to solemnize a marriage or other domestic union (e.g., a domestic partnership or civil union) in Idaho, or by a same-sex couple who asks Idaho to recognize a marriage or other domestic union solemnized in another state. Other courts have faced similar challenges. A growing number of cases have struck down marriage statutes as unconstitutional. In 1993, in Baehr v. Lewin, same-sex couples who were denied marriage licenses claimed that Hawaii's marriage statute violated the Hawaii Constitution's equal protection provisions. 852 P.2d at 64. The Hawaii Supreme Court agreed and held that limiting marriage to opposite-sex couples discriminated against same-sex couples on the basis of sex. ld. The court concluded that the discrimination
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was unlawful because the marriage statute was not narrowly drawn to compelling state interest. Id. at 67. The court reasoned that the equal provisions of the Hawaii Constitution were more "elaborate" than the equal provisions of the Fourteenth Amendment of the United States Constitution. Id.
support a protection protection at 64.
In 2003, in Goodridge v. Dept. of Public Health, the Massachusetts Supreme Court held that same-sex couples in Massachusetts are entitled to marry, on the grounds that prohibiting same-sex marriage does not satisfy substantive due process or equal protection requirements under the Massachusetts Constitution. 798 N.E.2d at 961. The court reasoned, "[t]he Massachusetts Constitution is, if anything, more protective of individual liberty and equality than the Federal Constitution; it may demand broader protection for fundamental rights; and it is less tolerant of government intrusion into the protected spheres of private life." Id. at 948-49. The court's holding was challenged unsuccessfully in the federal courts, in Largess v. Supreme Judicial Court for the State of Massachusetts, 317 F. Supp. 2d 77 (D. Mass.), afJ'd, 373 F.3d 219 (1st Cir.), cert. denied, 543 U.S. 1002, 125 S. Ct. 618, 160 L. Ed. 2d 461 (2004), which rejected an attempt by state legislators to enjoin enforcement of Goodridge on the grounds of judicial overreaching. In 2004 and 2005, additional courts rejected state marriage statutes. Among them are two cases pending on appeal before the Washington Supreme Court. See, Castle v. State of Washington, No. 04-2-00614-4, 2004 WL 1985215, at **16-17 (Wash. Super. Sept. 7, 2004) (unpublished decision) (holding that DOMA violates the privileges or immunities clause of the Washington Constitution); Andersen v. King County, No. 04-204964-4,2004 WL 1738447, at *11 (Wash. Super. Aug. 4, 2004) (unpublished decision) (holding that Washington's marriage statutes, which prohibit same-sex marriages, violate the privileges or immunities clause and due process clause of the Washington Constitution). The Washington Supreme Court held oral argument in March 2005 and a decision is pending. Six more cases are pending on appeal in a consolidated action before the California Court of Appeals. See, Judicial Council Coordination Proceeding
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In 1999, in Baker v. State of Vermont, the Vermont Supreme Court upheld the right of same-sex couples under the Vermont Constitution to receive the common benefits and protections that flow from marriage. The court reasoned that the Common Benefits Clause of the Vermont Constitution requires that the same benefits and protections afforded to married opposite-sex couples be afforded to same-sex couples. 744 A.2d at 887. The court did not hold that the same-sex couples had any right to a marriage license, but rather only to the common benefits and protections that flow from marriage under Vermont law. Id. at 878. The court distinguished its analysis from a federal constitutional analysis, holding that interpreting the Vermont Constitution must reflect an "inclusionary principle" rather than track a federal constitutional analysis. Id.
(Marriage Cases), No. 4365, 2005 WL 583129 (Cal. Super. Ct. March 14, 2005) (unpublished decision) (holding limitation of marriage to opposite-sex couples under California's marriage statute is unconstitutional under California Constitution). See also, Deane v. Conaway, No. 24-C-04-005390, 2006 WL 148145 (Md. Cir. Ct. Jan. 20,2006) (striking down Maryland's prohibition of same-sex marriages, under the equal protection and due process provisions of the Maryland Constitution). However, other courts have upheld marriage statutes. Several federal courts have upheld DOMA as compatible with the United States Constitution. See, In re Kandu, 315 B.R. 123, 148 (Bankr. W.D. Wash. 2004) (upholding DOMA and concluding that a lesbian couple who married in Canada could not jointly file a Chapter 7 bankruptcy); Smelt v. County of Orange, 374 F. Supp. 2d at 880 (upholding DOMA, finding no due process or equal protection violations); Wilson v. Ake, 354 F. Supp. 2d 1298, 1309 (M.D. Fla. 2005) (holding that DOMA does not violate Full Faith and Credit Clause or the due process or equal protection protections of the United States Constitution); see also, Morrison v. Sadler, 821 N.E.2d 15, 35 (Ind. Ct. App. 2005) (upholding DOMA). Also, several state courts have upheld state marriage statutes as compatible with state constitutions, holding that marriage is properly limited to opposite-sex couples. See, Li v. State of Oregon, 110 P.3d 91, 102 (Or. 2005) (upholding prohibition of same-sex marriages under Oregon law); Hernandez v. Robles, 805 N.Y.S.2d 354, 377 (N.Y. App. Div. 2005) (holding denial of same-sex marriage does not violate due process or equal protection provisions of New York Constitution); Standhardt v. Superior Court of Arizona, 77 P.3d 451, 464 (Ariz. Ct. App. 2004) (holding denial of same-sex marriage does not violate any fundamental due process or equal protection right under Arizona or United States Constitutions); Dean v. District of Columbia, 653 A.2d 307, 333 (D.C. Ct. App. 1995) (holding same-sex marriage is not a fundamental right protected by due process). Given this wide split in the case law, there is no majority rule to guide the Idaho Supreme Court if a state constitutional challenge to Idaho's marriage statutes is brought. However, the court should consider federal cases upholding DOMA. See, In re Kandu, 315 B.R. at 148; Smelt v. County of Orange, 374 F. Supp. 2d at 880; Wilson v. Ake, 354 F. Supp. 2d at 1309. The Idaho Constitution is "separate and in many respects independent" from the United States Constitution, but Idaho courts can interpret the Idaho Constitution by considering federal court rulings interpreting the United States Constitution. Rudeen v. Cenarrusa, 136 Idaho 560, 568, 38 P.3d 598, 606 (2001), citing Thompson v. Engelking, 96 Idaho 793, 818, 537 P.2d 635, 660 (1975). "The majority of Idaho cases . . . state that the equal protection guarantees of the federal and Idaho Constitutions are substantially equivalent." ld. An Idaho court "is free to interpret its constitution as more protective than the United States Constitution." Garcia v. State Tax
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Commission, 136 Idaho 610, 615, 38 P.3d 1266, 1271 (2002), citing State v. Thompson, 114 Idaho 746, 748, 760 P.2d 1162, 1164 (1988). However, "independent analysis under the Idaho Constitution does not mean that [the Idaho Supreme] Court will reach a different result from that reached by the U.S. Supreme Court under a similar constitutional provision." Garcia, 136 Idaho at 614,38 P.3d at 1270. The court could very well disregard case law from Hawaii, Vermont and Massachusetts that struck down state marriage statutes on the basis that the state constitutional provisions at issue were more protective than their federal constitutional counterparts. See, Baehr v. Lewin, 852 P.2d at 572 (holding the equal protection provisions of the Hawaii Constitution were more "elaborate" than the equal protection provisions of the Fourteenth Amendment); Baker v. State of Vermont, 744 A.2d at 878 (holding that interpretation of the Common Benefits Clause of the Vermont Constitution must reflect an "inclusionary principle" rather than track a federal constitutional analysis); Goodridge v. Dept. of Public Health, 798 N.E.2d at 948-49 ("The Massachusetts Constitution is, if anything, more protective of individual liberty and equality than the Federal Constitution; it may demand broader protection for fundamental rights; and it is less tolerant of government intrusion into the protected spheres of private life"). Thus, Idaho's marriage statutes are probably less vulnerable than the statutes challenged in Vermont, Hawaii and Massachusetts. However, a marriage amendment would articulate Idaho's marriage policy at a constitutional level and preclude a state constitutional challenge. B. Without a Marriage Amendment, Whether the Idaho Supreme Court Would Be Required to Recognize Same-Sex Marriages Formed in Other States
You have asked whether, without a marriage amendment, the Idaho Supreme Court could be required to recognize a same-sex marriage formed in another state. The answer is most likely "no." The Full Faith and Credit Clause of the United States Constitution generally requires that full faith and credit be given to the public acts, records and judicial proceedings of sister states, as follows: Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof. U.S. Const. art. IV, 1. See also 28 U.S.c. 1738; 28 U.S.C. 1739 (implementing statutes governing attestation for recognition of, respectively, acts of legislature and
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records and judicial proceedings of courts, and nonjudicial records or books of public offices). Pursuant to the Full Faith and Credit Clause, a valid judgment entered into in a sister state with jurisdiction is entitled to full faith and credit in Idaho. See, Mitchell v. Pincock, 99 Idaho 56, 58, 577 P.2d 343, 345 (1978) (upholding rights of birth mother in adoption dispute that was adjudicated in California, under Full Faith and Credit Clause). The Full Faith and Credit Clause does not, however, create a license for a single state to create national policy regarding marriage. Wilson v. Ake, 354 F. Supp. 2d at 1309, citing Nevada v. Hall, 440 U.S. 410, 423-24, 99 S. Ct. 1182, 1189, 1190,591. Ed. 2d 416 (1979). Idaho retains some attributes of sovereignty to enact its own laws and, in effect, defme its own public policy. See, Pacific Emp. Ins. Co. v. Indus. Accident Comm. 306 U.S. 493, 501, 59 S. Ct. 629, 632 (1939); Brotherhood of Locomotive Firemen & Enginemen v. Chicago, Rock Island & Pacific RR Co., 393 U.S. 129, 142, 89 Ct. 323, 330, 83 1. Ed. 940 (1968) ("policy decisions are for the state legislature") (citation omitted). "[T]he Full Faith and Credit Clause does not require a State to apply another State's law in violation of its own legitimate public policy." Nevada v. Hall, 440 U.S. at 422,99 S. Ct. at 1189. Several courts have held that the Full Faith and Credit Clause does not require one state to recognize a same-sex marriage formed in another state. See Wilson v. Ake, 354 of. Supp. 2d at 1309 (upholding Florida's right to reject a same-sex couple's marriage entered into in Massachusetts); Bums v. Bums, 560 S.E.2d 47,49 (Ga. Ct. App. 2002) (in child custody matter, holding that Full Faith and Credit Clause did not require Georgia to recognize a civil union formed in Vermont); Hennefeld v. Township of Montclair, 22 N.J. Tax 166 (2005) (in matter regarding disabled veteran's property tax exemption, holding that Full Faith and Credit Clause did not require New Jersey to recognize civil union formed in Vermont); Langan v, St. Vincent's Hospital of New York, 802 N.Y.S.2d 476, (N.Y. App. Div. 2005); (holding that Full Faith and Credit Clause did not require New York to allow a wrongful death action brought on behalf of the decedent's same-sex partner); Raum v. Restaurant Assoc., 675 N.Y.S.2d 343, 370 (N.Y. App. Div. 1998) (same); Rosengarten v. Downes, 802 A.2d. 170, 172, 174-75 (Conn. Ct. App. 2002) (rejecting demand that Connecticut provide a forum to dissolve a same-sex civil union formed in Vermont); see also, In re Kandu, 315 B.R. at 134 (rejecting claim for comity regarding same-sex marriage formed in Canada). Also, Congress adopted DOMA pursuant to its powers under the Full Faith and Credit Clause to determine the effect of a marriage entered into in one state on other states. Wilson v. Ake, 354 F. Supp. 2d at 1303; see U.S. Const. art. IV, 1 ("And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof'). DOMA expressly protects a state's right to reject same-sex marriages formed in other states. 28 U.S.C. 1738C.
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Idaho's public policy to limit marriage to a man and a woman and prohibit recognition of same-sex marriages and other domestic relationships is articulated in Idaho Code 32-201 and 32-209. The Full Faith and Credit Clause and DOMA do not require an Idaho court to recognize domestic relationships that are contrary to this stated public policy. However, although the public policy exception to the Full Faith and Credit Clause and DOMA allow an Idaho court to reject an out-of-state same-sex marriage or other domestic relationship, neither mandate that an Idaho court reject such a marriage or relationship. Thus, as discussed above, without a marriage amendment an Idaho court could consider a state constitutional challenge to Idaho Code 32-201 and 32-209. (See Sec. LA, supra.) Additionally, Idaho Code 32-201 and 32-209 are limited to "marriages" and do not expressly prohibit civil unions, domestic partnerships or other marriage equivalents. Thus, under current Idaho law a court could recognize such a relationship formed in another state, as compatible with Idaho's marriage statutes. See Idaho Code 32-201, 32-209 (addressing "marriage"). Adopting a marriage amendment would more clearly articulate Idaho's public policies concerning marriage, as well as bar a state constitutional challenge to Idaho Code 32-201 and 32-209.
II.
POTENTIAL FEDERAL CONSTITUTIONAL CHALLENGES TO A MARRIAGE AMENDMENT You have asked whether a defense of marriage amendment will directly conflict with any provisions of the United States Constitution. The United States Supreme Court will ultimately face and decide the constitutionality of marriage amendments. At that time, the Court will probably uphold their constitutionality, but there are no guarantees. A.
Baker v. Nelson May Preclude a Federal Constitutional Challenge
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Baker v. Nelson, which upheld the prohibition of same-sex marriage, could preclude a federal constitutional challenge to Idaho's proposed amendment. Baker v. Nelson, 191 N.W.2d at 186-87, appeal dismissed, Baker v. Nelson, 409 U.S. 810, 93 S. Ct. 37, 34 L. Ed. 2d 65. After the Minnesota Supreme Court rejected the plaintiffs' claim that same-sex marriages should be recognized, the plaintiffs sought review of the court's decision by invoking the mandatory appellate jurisdiction of the United States Supreme Court (since repealed). Baker v. Nelson, 409 U.S. 810, 93 S. Ct. 37, 34 L. Ed. 2d 65. The Supreme Court summarily decided the case, without a full opinion on the merits, dismissing the appeal "for want of a substantial federal question." Id.
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Several courts have recognized Baker v. Nelson as binding precedent and, on that basis, have dismissed federal constitutional challenges to defense of marriage laws. In Wilson v. Ake, the court held, "The Supreme Court has not explicitly or implicitly overturned its holding in Baker or provided the lower courts, including this Court, with any reason to believe that the holding is invalid today." 354 F. Supp. 2d at 1305. See also, Morrison v. Sadler, 821 N.E.2d at 20 (finding no grounds for a Fourteenth Amendment challenge in light of Baker v. Nelson); Adams v. Howerton, 486 F. Supp. at 1124 (holding that Baker v. Nelson precluded claim to same-sex marriage). Thus, a federal constitutional challenge to an Idaho marriage amendment could be dismissed under Baker v. Nelson for want of a substantial federal question. However, some courts have rejected Baker v. Nelson as binding precedent and other cases have ignored the decision. See, Smelt v. County of Orange, 374 F. Supp. 2d at 874 (holding Baker v. Nelson was not binding precedent); In re Kandu, 315 B.R. at 138 (same). Because a court addressing an Idaho marriage amendment might reject Baker v. Nelson as binding precedent, the potential federal constitutional challenges are discussed below. B. Potential Challenges Under the Fourteenth Amendment
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Courts addressing marriage laws under the Due Process and Equal Protection Clauses of the Fourteenth Amendment generally answer three legal questions: (1) whether
The statement of jurisdiction in Baker v. Nelson presented the specific question of whether a "county clerk's refusal to authorize a same-sex marriage deprived plaintiffs of their liberty to marry and of their property without due process of law under the Fourteenth Amendment, their rights under the Equal Protection Clause of the Fourteenth Amendment, or their right to privacy under the Ninth and Fourteenth Amendments." Smelt, 374 F. Supp. 2d at 872, citing Baker v. Nelson, Jurisdictional Statement, No. 711027 (Oct. Term 1972).
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A dismissal for want of a substantial federal question is a decision on the merits that is binding on lower courts, except when doctrinal developments indicate otherwise. Smelt v. County of Orange, 374 F. Supp. 2d at 872, citing Hicks v. Miranda, 422 U.S. 332, 344-45, 95 S. Ct. 2281, 45 L. Ed. 2d 223 (1975). The scope of this rule is narrow; the decision is dispositive only of "the specific challenges presented in the statement of jurisdiction." Smelt, 374 F. Supp. 2d at 872, citing Mandel v. Bradley, 432 U.S. 173, 176, 97 S. Ct. 2238, 53 L. Ed. 2d 199 (1977) (per curium). The rationale is to prevent "lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by the dismissal, but it does not affirm the reasoning or the opinion of the lower court whose judgment is appealed." Smelt, 374 F. Supp. 2d at 872, citing Mandel, and Washington v. Confederated Bands & Tribes, 439 U.S. 463, 476, n.20, 99 S. Ct. 740, 58 L. Ed. 2d 740 (1979).
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same-sex couples have a fundamental right to marry; (2) for purposes of equal protection, whether homosexuals are a suspect or quasi-suspect classification or whether marriage laws discriminate on the basis of sex, which is a suspect or quasi-suspect classification; and (3) depending on how a court answers the first two questions, whether the marriage law should be reviewed under the rational basis test or heightened scrutiny. 1. Whether There Is a Fundamental Right to Same-Sex Marriage
The Due Process Clause "protects those fundamental rights and liberties which are, objectively, 'deeply rooted in this Nation's history and tradition. ,,, Wilson v. Ake, 354 F. Supp. 2d at 1305, quoting Washington v. Glucksberg, 521 U.S. 702, 721, 117 S. Ct. 2258, 2268, 138 L. Ed 2d 772 (1997). Fundamental rights are those liberties that are "implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed." Glucksberg, 521 U.S. at 721, 117 S. Ct. at 2268. "The Supreme Court has cautioned courts to 'exercise the utmost care' in conferring fundamental-right status on a newly asserted interest." In re Kandu, 315 B.R. at 140, citing Glucksberg, 521 U.S. at 720, 117 S. Ct. at 2268. The United States Supreme Court has never held that same-sex couples have a fundamental right of marriage. Three years ago in Lawrence v. Texas, 539 U.S. 558, 575, 123 S. Ct. 2472, 2482, 156 L. Ed. 2d 508 (2003), the Court reversed longstanding precedent and held unconstitutional a Texas statute outlawing sodomy between two persons of the same sex. Id. (reversing Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 _(1986), holding that the continuance of Bowers as precedent would "demean[] the lives of homosexual persons"). However, Lawrence declined to address the validity of same-sex marriage, concluding that the case did "not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." 539 U.S. at 578, 123 S. Ct. at 2484. Most lower courts have found that same-sex couples do not have a fundamental right of marriage. See, Wilson v. Ake, 354 F. Supp. 2d at 1307 (no fundamental right to marry person of same sex); In re Kandu, 315 B.R. at 139-40 (same); Smelt v. County of Orange, 374 F. Supp. 2d at 879 ("the fundamental due process right to marry does not include a fundamental right to same-sex marriage"); Hernandez v. Robles, 805 N.Y.S.2d at 362 ("we reject plaintiffs' argument in support of a fundamental right"); Dean v. District of Columbia, 653 A.2d at 333 (quoting Moore v. City of East Cleveland, 431 U.S. 494, 503, 97 S. Ct. 1932, 52 L. Ed. 2d 531 (1977): "[W]e cannot say that same-sex marriage 'is deeply rooted in this Nation's history and tradition"'); Standhardt v. Superior Court of Arizona, 77 P.3d at 457 (rejecting claim by same-sex couple of fundamental right to marry). On the weight of the case law, there is most likely no fundamental right to same-sex marriage which would require heightened scrutiny of marriage laws.
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2.
Whether a Marriage Amendment Would Discriminate Against a Suspect or Quasi -Suspect Class
Most likely, marriage laws that reject same-sex marriages and related domestic relationships would not be found to discriminate on the basis of a suspect or quasi-suspect class. The United States Supreme Court and the Ninth Circuit Court of Appeals have not recognized homosexuals as a suspect or quasi-suspect class for equal protection purposes. In Romer v. Evans, the United States Supreme Court applied a rational basis review to a constitutional amendment that discriminated against homosexuals. 517 U.S. 620, 631-32, 116 S. Ct. 1620, 1626-27, 134 L. Ed. 2d 855 (1996). In High Tech Gays v. Def. Indus. Sec. Clearance Office, the Ninth Circuit Court of Appeals held that homosexuality is not a suspect or quasi-suspect classification. 895 F.2d 563,573-74 (9th Cir. 1990). In Smelt v. County of Orange, the court held that homosexuals are not a suspect or quasi-suspect class for purposes of evaluating whether DOMA violates equal protection principles. 374 F. Supp. 2d at 875, citing Romer, 517 U.S. at 631-32, 116 S. Ct. at 1626-27 and High Tech Gays, 895 F.2d at 573-74. In re Kandu reached the same conclusion, holding that homosexuals are not a suspect or quasi-suspect class. In re Kandu, 315 B.R. at 143-44, citing Lawrence v. Texas, 539 U.S. at 579-81, 123 S. Ct. 2472 (O'Connor, J., concurring) and High Tech Gays, 895 F.2d at 574. But see, Castle v. State of Washington, 2004 WL 1985215, at *13 (holding homosexuality is a suspect class for equal protection purposes; case pending appeal before the Washington Supreme Court). Thus, homosexuals are most likely not a suspect or quasi-suspect class. Whether marriage laws discriminate on the basis of sex is less certain, but they probably do not. Several cases have held that defense of marriage laws do not discriminate on the basis of sex. See, Smelt, 374 F. Supp. 2d at 877 (holding DOMA does not discriminate on the basis of sex); In re Kandu, 315 B.R. at 143 ("There is no evidence from the voluminous legislative history or otherwise, that DOMA's purpose is to discriminate against men or women as a class"); Singer v. Hara, 522 P.2d at 1192-93 (holding that prohibiting same-sex marriages is not discrimination on the basis of sex). The rationale is that marriage laws do not make any distinctions on the basis of sex. Men and women are treated the same; neither men nor women receive the benefits of marriage in same-sex relationships. Id. at 1196 ("Appellants were not denied a marriage license because of their sex; rather they were denied a marriage license because of the nature of marriage itself'). Other courts have reached a contrary result, holding that marriage laws discriminate on the basis of sex. See, e.g., Baehr v. Lewin, 852 P.2d at 63-64 (rejecting argument that there was no sex discrimination on the grounds that marriage statute
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prohibited both men and women in same-sex relationships from marrying). See also, Loving v. Virginia, 388 U.S. at 9, 12, 87 S. Ct. at 1822-23 (rejecting claim that a law which punishes members of different races equally for entering into interracial marriages does not discriminate on the basis of race). Thus, although the law is uncertain, several courts evaluating marriage amendments have refused to find the suspect classification of sex at issue. These cases are probably more closely aligned with Romer v. Evans, which applied a rational basis review to a constitutional amendment that discriminated against homosexuals. 517 U.S. at 631-32, 116 S. ct. at 1626-27. 3. Whether a Marriage Amendment Would Satisfy Rational Basis Review
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The rational basis test is stated as follows: "Where ... a law does not make a quasi-suspect or suspect classification (the equal protection issue) and does not burden a fundamental right (the due process issue), it will be upheld if it is rationally related to a legitimate government interest." Smelt v. County of Orange, 374 F. Supp. 2d at 879 (citing Romer v. Evans, 517 U.S. at 631, 116 S. Ct. 1620). The burden is on the plaintiff challenging the defense of marriage law to negate "every conceivable basis" for support of the law. Smelt, 374 F. Supp. 2d at 880, citing Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S. Ct. 1001,35 L. Ed. 2d 351 (1973). The plaintiff s burden is heavy and difficult to satisfy. "Courts are compelled under rational-basis review to accept a legislature's generalizations even when there is an imperfect fit between means and ends .... A statutory classification fails rational-basis review only when it 'rests on grounds wholly irrelevant to the achievement of the State's objective.'" In re Kandu, 315 B.R. at 144, quoting Heller v. Doe, 509 U.S. 312, 321, 324, 113 S. Ct. 2637, 125 L. Ed. 2d 257 (1993). The rational basis scrutiny "is not a license for courts to judge the wisdom, fairness, or logic of legislative choices." Id. (citation omitted). However, "[m]oral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be 'drawn for the purpose of disadvantaging the group burdened by the law. '" Lawrence v. Texas, 539 U.S. at 583, 123 S. Ct. at 2486 (O'Connor, J., concurring), quoting Romer v. Evans, 517 U.S. at 633,116 S. Ct. at 1620.
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Because most courts refuse to find a fundamental right to same-sex marriage or discrimination on the basis of a suspect classification, courts typically evaluate the constitutionality of defense of marriage laws under rational basis scrutiny. It is under the rational basis test, however, where the wide breadth of judicial disagreement concerning defense of marriage laws is most evident. Courts have reached dramatically different conclusions when considering substantially similar state interests and arguments.
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Many courts have applied the rational basis test and held that marriage laws are rationally related to a legitimate government interest. In Smelt v. County of Orange, the court found DOMA to be rationally related to the government's interest of encouraging the optimal union for procreation and for rearing children by both biological parents, and to communicate to citizens that opposite-sex relationships have special significance. 374 at F. Supp. at 880. In re Kandu held that DOMA is rationally related to the government's legitimate interest in promoting marriage to encourage stable relationships and facilitate the rearing of children by both biological parents. 315 B.R. at 146.
In Baker v. State of Vermont, the Vermont Supreme Court held that the laudable government goal of promoting the commitment of married couples to ensure the security of their children provided no reasonable basis for denying the benefits of marriage to same-sex couples. 744 A.2d at 884. The court reasoned that many opposite-sex couples marry for reasons unrelated to procreation and, therefore, there was no logical connection to the stated governmental purpose. Id. at 88l. See also, Deane v. Conaway, No. 24-C04-005390, 2006 WL 148145 (Md. Cir. Ct. Jan. 20, 2006) (unpublished decision, p. 15) ("This Court, like others, can find no rational connection between the prevention of samesex marriages and an increase or decrease in the number of heterosexual marriages or of children born to those unions"). Under a heightened strict scrutiny standard, similar state arguments have been closely examined and rejected. See, Baehr v. Miike, No. 91-1394, 1996 WL 694235 (Haw. Cir. Ct. Dec. 3, 1996), on remand/rom Baehr v. Miike, 852 P.2d 44 (Haw. 1993) (fmding under heightened scrutiny standard that there was no causal link between allowing same-sex marriage and adverse effects on children).
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However, other courts have held that denying same-sex couples the status or benefits of marriage does not satisfy a rational basis review. In Goodridge v. Dept of Public Health, the Massachusetts Supreme Court rejected the state's assertion that prohibiting same-sex couples from marrying promoted a favorable setting for procreation, promoted an optimal setting for child rearing in a two-parent family with one parent of each sex, and preserved scarce state and private financial resources. 798 N.B. 2d at 96168. The court found there was no evidence that "forbidding marriage to people of the same sex will increase the number of couples choosing to enter into opposite-sex marriages in order to have and raise children." Id. at 963.
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In Adams v. Howerton, the court upheld a marriage law under heightened strict scrutiny based upon a similar rationale: "In traditional equal protection terminology, it seems beyond dispute that the state has a compelling interest in encouraging and fostering procreation of the race and providing status and stability to the environment in which children are raised." 486 F. Supp. at 1124. See also, Standhardt v. Superior Court, 77 P.3d at 464 (upholding marriage statute under rational basis test); Singer v. Hara, 522 P. 2d at 1191-92 (same).
The enforceability of marriage laws is a highly disputed area of law, which will remain so until the United States Supreme Court resolves the issue. Thus, states that adopt marriage amendments should anticipate and be prepared to defend legal challenges.
C.
A Marriage Amendment That Precludes Recognition of Other Domestic Relationships Could Face Additional Constitutional Challenges
At issue in Citizens for Equal Protection was Nebraska's marriage amendment, which provides: Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska. Neb. Const. art. I, 29. The court held that the Nebraska amendment's broad scope violated the First and Fourteenth Amendments of the United States Constitution by imposing "significant burdens on both the expressive and intimate associational rights of the plaintiffs' members and creat[ing] a significant barrier to the plaintiffs' right to petition or to participate in the political process." Citizens for Equal Protection, 368 F. Supp. 2d at 995. The court also held that the amendment was an illegal bill of attainder because it singled out gays and lesbians for legislative punishment by limiting their access to lobby for benefits and protections. ld. at 1008. In reaching these conclusions, the court reasoned that the scope of the amendment was too broad: "The amendment goes far beyond merely defming marriage as between a man and a woman." ld. at 995. In support of these holdings, the court cited Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996). In Romer v. Evans, the United States Supreme Court struck down, under a rational basis review, an amendment to Colorado's constitution that precluded all state and local government action designed to protect the status of persons based on their "homosexual, lesbian or bisexual orientation, conduct, practices or relationships." 517 U.S. at 620, 116 S. Ct. at 1622. The Court held that the Colorado amendment violated the equal protection clause of the Fourteenth Amendment by singling out homosexuals and imposing barriers that made it more difficult for them to seek aid from the government. 517 U.S. at 633, 116 S. Ct. at 1628.
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A marriage amendment that both defmes marriage and also bars recognition of domestic relationships outside of marriage furthermore could be challenged under the recent case of Citizens for Equal Protection, Inc. v. Bruning, 368 F. Supp. 2d 980 (D. Neb. 2005). In Citizens for Equal Protection, a federal district court struck down Nebraska's constitutional marriage amendment, which bans recognition of same-sex civil unions, domestic partnerships, and other similar relationships. ld. at 989.
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Citizens for Equal Protection is on appeal to the Eighth Circuit Court of Appeals and may not be upheld; oral argument is scheduled for later this month. (Case No. 052604). However, the case is notable for its criticism of a marriage amendment with a broad scope. Under Romer, a constitutional amendment may not single out homosexuals and impose barriers that make it more difficult for them to seek aid from the government. Attorney General Opinion No. 93-11, dated November 3, 1993, reached a similar conclusion. 1993 Idaho Att'y Gen. Ann. Rpt. 119. In that opinion, former Idaho Attorney General Larry EchoHawk evaluated a proposed initiative to articulate state policies concerning homosexuals. The Attorney General opined that the initiative's proposal to preclude any grant of minority status to persons engaging in homosexual activities barred the homosexual community from obtaining anti-discrimination laws and thus violated equal protection principles, by "denying homosexuals equal access to the political process." Id. at 132. However, the Attorney General also recognized that "[t]he State of Idaho does not legally recognize either homosexual marriages or homosexual domestic partnerships." Id. Romer and Attorney General Opinion No. 93-11 should not invalidate marriage amendments that simply limit marriage to a marriage between a man and a woman. In re Kandu rejected a challenge under Romer, distinguishing Romer and holding that DOMA is "not so exceptional and unduly broad as to render the ... reasons for its enactment 'inexplicable by anything but animus' towards same sex couples." In re Kandu, 315 B.R. at 147-48. See also, Standhardt v. Superior Court of Arizona, 77 P.3d at 465 (rejecting a Romer analogy, holding that a marriage statute was not enacted to make same-sex couples unequal). The inapplicability of Romer and Opinion No. 93-11 becomes less clear, however, regarding a marriage amendment that furthermore bans any legal recognition of all nonmarital domestic relationships. However, Romer addressed a constitutional amendment that precluded all legislative, executive or judicial action at any level of state or local government designed to protect the status of homosexuals. Romer, 517 U.S. at 620,116 S. Ct. at 1622. Citizens for Equal Protection likely stretches Romer too far by applying the principles of Romer to the limited context of marriage laws.
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III.
UNDER PRINCIPLES OF CONSTITUTIONAL CONSTRUCTION, COURTS ARE UNLIKELY TO RULE THAT A MARRIAGE AMENDMENT GOVERNS RELATIONSHIPS THAT ARE UNLIKE MARRIAGE Several of your questions focus on the effect of a constitutional amendment on current rights and benefits of domestic relationships outside of marriage. An amendment should not cancel current rights and obligations that are not dependent upon the status of marriage. 2 However, an amendment that not only defines marriage but also bars recognition of other domestic relationships carries a greater risk of claims of interference with such relationships. Terms in marriage amendments adopted by other states, such as "domestic union," "legal union," "identical or substantially similar to marriage" or "approximate " to marriage, may require judicial interpretation to determine their effect on other domestic relationships. See, e.g., Ky. Const. 233A (2004); La. Const. art. XII, 15 (2004); N.D. Const. art. XI, 280 (2004); Ohio Const. art. XV, 11 (2004). General principles of statutory construction apply to the construction of the Idaho Constitution. State v. Blaine County, 139 Idaho 348, 350, 79 P.3d 707, 709 (2003); Keenan v. Price, 68 Idaho 423, 437, 195 P.2d 662, 670 (1948). Where the language is plain and unambiguous, an Idaho court must give effect to the provision as written without engaging in statutory construction. State v. Knott, 132 Idaho 476, 478, 974 Pold 1105, 1107 (1999). Where, however, the language of a constitutional provision or statute is not plain and unambiguous, a court must ascertain the legislative intent and give effect to that intent. Id. at 478, 974 P.2d at 1107. "All statutes must be liberally construed with a view to accomplishing their aims and purposes, and attaining substantial justice, and courts are not limited to the mere letter of the law, but may look behind the letter to
"The benefits accessible only by way of a marriage license are enormous, touching nearly every aspect of life and death." Goodrich v. Department of Health, 798 N.E.2d at 955. Goodrich identified a list of numerous rights arising out of marriage under Massachusetts law, including, for example, joint income tax filing, rights to inherit property from a spouse without a will, certain health care, pension and veteran benefits for spouses, presumptions of parentage of children born to a married couple, evidentiary protections for private marital conversations, bereavement and medical leave to care for family members, a preference for family members to make medical decisions about an incompetent or disabled spouse, and predictable rules of child custody, visitation, support and removal out of state upon a divorce. Id. at 955-56. See also, Baehr v. Lewin, 852 P.2d at 59 (listing the more "salient" of a "multiplicity of rights and benefits that are contingent upon [marital] status," including, for example, community property rights, rights regarding the disposition of property upon a spouse's death, awards of child custody and support payments in divorce proceedings, post-divorce rights regarding support and property division, evidentiary benefits for the spousal privilege and confidential marital communications, exemptions of real property from attachment or execution and the right to bring a wrongful death action upon a spouse's death).
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determine its purpose and effect, the object being to determine what the legislature intended, and to give effect to that intent." Keenan, 68 Idaho at 438, 195 P.2d at 670. "To ascertain the intent of the legislature, not only must the literal words of the statute be examined, but also the context of those words, the public policy behind the statute and its legislative history." State v. Rhode, 133 Idaho 459, 462,988 P.2d 685,688 (1999). Thus, if an Idaho court concludes that the language of a marriage amendment is not plain and unambiguous, the court should consider the context of the amendment, the public policy behind the amendment and its legislative history. The context should include references to marriage within the text of the amendment and current limits on marriage articulated in Idaho Code 32-201 and 32-209. Consideration of public policy behind the amendment should include any statement of purpose for the proposed amendment as well as the public debate on this topic. The legislative history also will be relevant. These guidelines should discourage an Idaho court from upholding a marriage amendment's unintended consequence to relationships that are dissimilar to marriage. With these principles in mind, answers to your questions are provided below. A. Contract Rights and Powers of Attorney
The language of a marriage amendment need not interfere with individuals conducting business via contract or executing enforceable powers of attorney. Both the United States Constitution and the Idaho Constitution prohibit the enactment of laws that impair the obligations of contracts. U.S . Const. art. I, 10; Idaho Const. art. I, 16. Therefore, a marriage amendment should not be interpreted to automatically impair all existing contract rights. See, Steward v. Nelson, 54 Idaho 437, 32 P.2d 843, 846-47 (1934). Additionally, contracts with third parties outside of a domestic relationship should not be affected. For example, employers and employees should continue to be allowed to contract for the provision of, for example, health care benefits or leave benefits to be provided to same-sex couples where one of the individuals works for the employer. Same-sex couples would likely continue to enter into enforceable contracts that document their obligations to each other. One partner might later allege that a contract between a same-sex couple is an unenforceable legal union or legal relationship under a marriage amendment. However, under the statutory construction principles discussed above, this challenge should fail. The determinative issue in a same-sex couple's contract dispute should be the enforceability of the contract rather than the status of their domestic relationship. A remark in the amendment or its statement of purpose that the marriage amendment is not intended to interfere with contracts would support this conclusion. Idaho Code 15-5-501, et seq., governs durable powers of attorney under Idaho law. Idaho Code 39-4510 governs durable powers of attorney for health care. Neither
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statutory scheme makes a distinction between married and unmarried persons. There "is no presumption of agency between husband and wife in dealing with each other's property resulting from the mere fact of the marital relationship." 41 c.J.S. Husband and Wife 58. "An agency relationship between husband and wife will not be established merely by virtue of their marriage." Zukowski v. Dunton, 650 F.2d 30, 34 (4th Cir. 1981). Thus, because marital status does not control powers of attorney, a marriage amendment should not interfere with powers of attorney under Idaho law. To avoid potential challenges, the amendment's statement of purpose and the legislative history can make clear that the amendment is not intended to interfere with powers of attorney.
B.
The Disposition of Property Upon Death

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The Uniform Probate Code gives some preferences based upon marriage and divorce that will not be available to unmarried couples. For example, Idaho Code 15-2301 favors a surviving spouse who marries a testator after the execution of his or her will but is omitted from the will. Idaho Code 15-2-508 provides that if a testator divorces after executing a will, the divorce revokes the will's disposition of property to the former spouse. These statutes are compatible with a constitutional marriage amendment and thus should not be affected by adoption of an amendment.
C.
Other Relationships
You have also asked about the potential for interference with other relationships, such as existing rights of unmarried persons to cohabitate, existing rights of extended family members to help raise minor members of that extended family, rules regarding the making of medical care decisions by unmarried persons, and whether it would be more difficult for unmarried persons to visit each other if one is hospitalized. A marriage amendment probably would not be interpreted to cancel the rights and benefits of these relationships. However, the broader the net that a marriage amendment casts over domestic relationships outside of marriage, the more uncertain the amendment's effect will be on the types of relationships you have described.
A marriage amendment should not interfere with the right of a person to leave property by a will to anyone of his or her choosing. The Uniform Probate Code, at title 15 of the Idaho Code, governs wills. Because the right to dispose of property by will is not dependent upon marriage, a marriage amendment will most likely not affect that right. A statement of purpose that the amendment is not intended to interfere with the right of a person to provide for the disposition of their property at death will support this result.
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1.
Unmarried Couples and Cohabitation
An unmarried couple's decision to cohabitate should not be impaired. Interpreting a marriage amendment to prohibit any and all cohabitation would be a slippery slope towards prohibiting ordinary roommate arrangements. This interpretation would stretch too far the context and public policy of the amendment. But see, Citizens for Equal Protection, Inc. v. Bruning, 368 F. Supp. 2d at 995-96 (holding that breadth of Nebraska's marriage amendment threatened relationships such as "roommates, co-tenants, foster parents, and related people who share living arrangements, expenses, custody of children, or ownership of property").
In the unpublished case of State v. Burk, a criminal defendant asserted that Ohio's domestic violence statute as applied to unmarried couples who cohabitate was unconstitutional under Ohio's marriage amendment. No. 86162, 2005 WL 3475812, at *1 (Ohio Ct. App. Dec. 20, 2005) (unpublished decision). Ohio's marriage amendment bars recognition of any legal status for "relationships or unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage." fd., citing Ohio Const. art. XV, 11. The trial court held that Ohio's domestic violence statute was invalid because it "confers a legal status upon cohabiting, unmarried individuals that approximates 'the design, qualities, significance or effect of marriage' simply because a 'family or household member' includes a person 'living as a spouse. ,,, fd. at *2. However, the appellate court reversed the decision, holding instead that Ohio's domestic violence statute properly protects household relationships outside of marriage, including persons living as spouses, parents, children and blood relatives of the offender. fd. at *4. The court reasoned, "[w]hile 'cohabitation' defines a relationship between people, that status is factual not legal. 'Cohabitant' is therefore not a legal status, let alone a legal status that 'intends to approximate the design, qualities, significance or effect of marriage'" within the meaning of Ohio's marriage amendment. fd. (citation omitted).
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A related question is whether a marriage amendment would invalidate Idaho's domestic violence statute as applied to unmarried couples who cohabitate. Idaho Code 18-918(2) makes it a felony for one household member to inflict a traumatic injury upon another household member. A household member includes a "spouse, former spouse, or a person who has a child in common regardless of whether they have been married or a person with whom a person is cohabiting, whether or not they have married or have held themselves out to be husband or wife." Idaho Code 18-918(1)(a). In State v. Hart, the court held that Idaho's domestic violence laws apply even where a domestic relationship no longer exists. 135 Idaho 827, 830,25 P.3d 850, 853 (2001).
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Burk is an unpublished decision that is not binding on an Ohio court, much less an Idaho court, facing the same issue. However, the reasoning in Burk is persuasive. The public health and welfare is not advanced by limiting the right to be free from family violence to those relationships connected by marriage and excluding unmarried couples from such protection. Idaho's domestic violence laws, which recognize domestic relationships outside of marriage, should not be invalidated by a marriage amendment. 2. Extended Families
Also, Idaho courts will not invalidate a parent-child relationship solely because one parent is in a same-sex relationship. The recent case of McGriff v. McGriff addressed a divorced father's shared custody of his children, after the father moved in with another man. 140 Idaho 642, 644, 99 P.3d Ill, 113 (2004). The Idaho Supreme Court held that parental custody can not be determined solely based upon a parent's sexual orientation. The court reasoned, "only when the parent's sexual orientation is shown to cause harm to the child, such that the child's best interests are not served, should sexual orientation be a factor in determining custody." Id. at 648,99 P.3d at 117. The court held that custody was properly transferred to the mother based on conduct in the record, such as inappropriate conduct by the father's partner toward the children's mother and the father's failure to cooperate in communicating his lifestyle to the children. Id. at 648-52,99 P.3d at 117-21. 3
3 Idaho case law recognizes familial relationships outside of marriage between a man and a woman in a variety of circumstances. For purposes of determining gratuitous services to family members (for which no wages are due), Idaho law defines a family relationship as "a collective body of persons who form one household under one head and one domestic government, and who have reciprocal, natural
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Various sections of the Idaho Code address parental and other child custody relationships. Title 32 of the Idaho Code governs child custody issues arising out of marriage and divorce. See, Idaho Code 32-1001, et seq. (Parent-Child Relations); Idaho Code 32-11-101, et seq. (Uniform Child Custody Jurisdiction and Enforcement Act). Title 16 of the Idaho Code governs juvenile proceedings. See, Idaho Code 161501, et seq. (Adoptions); Idaho Code 16-1601, et seq. (Child Protective Act). It is unlikely that a marriage amendment would be construed to invalidate these statutes or the familial relationships sanctioned by them.
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Your question as to whether a marriage amendment would interfere with existing rights of extended family members to help raise minor children of the extended family is more difficult. Terms such as "legal union" or "domestic union" in marriage amendments arguably apply to grandparent-grandchild, uncle-nephew, sibling or other familial relationships. However, a legal challenge arising out of such terms should be defeated based upon the context, public policy and legislative history of a marriage amendment.
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Thus, a marriage amendment should be generally compatible with the current Idaho laws discussed above governing parental, child custody and familial statuses. 3. Medical Decisions and Hospital Visitation
Your concerns about medical care decisions and hospital visitation are common in the public debate about marriage laws. The adoption of a marriage amendment to the Idaho Constitution should not interfere with current rights regarding these issues. The making of health care decisions for a loved one implicates federal and state law. The privacy regulations under the federal Health Insurance and Portability Accountability Act ("HIPAA"), at 45 C.F.R. 164.510, allow a health care provider to disclose certain protected health care infornlation about a patient to a family member, relative or other "close friend," where the patient is unable to consent or object to the disclosure. 45 C.F.R. 164.510. A state constitutional marriage amendment would not interfere with this federal right to obtain protected health infonnation. Idaho Code 39-4503 establishes the order of persons who may give consent to health care treatment for minors and other persons who are incapable of deciding for themselves. The order gives priority, in part, first to a legal guardian, then to a person named in a Living Will and Durable Power of Attorney for Health Care, then to a spouse, then to a parent, then to another relative who is responsible to act under the circumstances and then to any other competent individual who is responsible for the health care of the patient. Idaho Code 39-4503. A marriage amendment should not mandate a change in this order. Unmarried couples can execute Living Wills and Durable Powers of Attorney for Health Care to protect their rights to make health care decisions. Some states have enacted statutes to recognize rights to hospital visitation. See e.g., HRS 323-2 LSA-R.S. 40:2005 (Louisiana statute providing that adult patient may designate individuals who will be denied access to hospital visitation); 22 M.R.S.A. 1711-D (Maine statute providing that a hospital patient may designate persons to be considered immediate family members for purposes of visitation). However, Idaho has no comparable statutory scheme governing hospital visitation. Thus, a marriage amendment should not interfere with current rules in Idaho regarding hospital visitation.
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and moral duties to support and care for one another." McMahon v. Auger, 83 Idaho 27, 39, 357 P.2d 374,381 (1960). As discussed above, Idaho's domestic violence laws protect household members, even where a domestic relationship no longer exists. State v. Hart, 135 Idaho at 830, 25 P.3d at 853.
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Case 1:13-cv-00482-CWD Document 60-5 Filed 02/18/14 Page 26 of 32 Honorable Lawerence Denney Page - 25
IV.
CONCLUSION If Idaho adopts a marriage amendment to the Idaho Constitution, Idaho will join a growing number of states that are taking similar action. Importantly, the scope of an adopted marriage amendment must accurately reflect the legislature's intended state policy regarding marriage. Enforcement issues for a marriage amendment that only defines marriage as between a man and a woman are limited to whether prohibiting same-sex marriage is constitutional. However, an amendment that only defines marriage will not prohibit courts, future legislatures or the state's political subdivisions from recognizing domestic partnerships, civil unions or other relationships that approximate marriage. Accordingly, a narrow amendment is insufficient to articulate a public policy that seeks not only to define marriage as between a man and a woman but also to prohibit recognition of other relationships such as samesex marriages, civil unions and domestic partnerships. The trade-off is that marriage laws that prohibit recognition of relationships outside of marriage contain an inherent degree of ambiguity as to scope and therefore pose a greater risk of a successful legal challenge. When the United States Supreme Court ultimately addresses marriage laws under the United States Constitution, the Court will probably defer to state rights to govern marriage and uphold the traditional view that a marriage is between a man and a woman. However, given the unsettled state of the law, there is no guarantee that a proposed marriage amendment to the Idaho Constitution would comply with all requirements of the United States Constitution. AUTHORITIES CONSIDERED
1.
United States Constitution:

Art. I, 10. Art. I, 16. Art. IV, l. First Amendment. Fourteenth Amendment.
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Idaho Constitution:
Art. I, l. Art. I, 2. Art. I, 16.
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United States Code:

1 U.S.C. 7. 28 U.S.c. 1738. 28 U.S.C. 1738C. 28 U.S.C. 1739.
4.
Idaho Code:
15-2-301. 15-2-508. 15-5-501. 16-150l. 16-1601. 18-918(1)(a). 18-918(2). 18-6605. 32-11-101. 32-201. 32-201(1). 32-209. 39-4503. 39-4510.
5.
U.S. Supreme Court Cases:

Baker v. Nelson, 409 U.S. 810,93 S. Ct. 37, 34 L. Ed. 2d 65 (1972). Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986). Brotherhood of Locomotive Firemen & Enginemen v. Chicago, Rock Island & Pacific RR Co., 393 U.S. 129, 89 Ct. 323, 83 L. Ed. 940 (1968). Heller v. Doe, 509 U.S. 312, 113 S. Ct. 2637, 125 L. Ed. 2d 257 (1993). Hicks v. Miranda, 422 U.S. 332, 95 S. Ct. 2281,45 L. Ed. 2d 223 (1975). Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003).
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Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 93 S. Ct. 1001, 35 1. Ed. 2d 351 (1973). Loving v. Commonwealth of Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 1. Ed. 2d 1010 (1967). Mandel v. Bradley, 432 U.S. 173,97 S. Ct. 2238, 53 1. Ed. 2d 199 (1977). Moore v. City of East Cleveland, 431 U.S. 494, 97 S. Ct. 1932, 52 1. Ed. 2d 531 (1977).
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Nevada v. Hall, 440 U.S. 410, 99 S. Ct. 1182,591. Ed. 2d 416 (1979). Pacific Emp. Ins. Co. v. Indus. Accident Comm. 306 U.S. 493, 59 S. Ct. 629, 83 1. Ed. 940 (1939). Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620, 1341. Ed. 2d 855 (1996). Washington v. Confederated Bands & Tribes, 439 U.S. 463, 99 S. Ct. 740, 58 1. Ed. 2d 740 (1979). Washington v. Glucksberg, 521 U.S. 702, 117 S. Ct. 2258, 138 1. Ed 2d 772 (1997).
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Idaho Cases:
Garcia v. State Tax Commission, 136 Idaho 610, 38 P.3d 1266 (2002). Keenan v. Price, 68 Idaho 423, 195 P.2d 662 (1948) McGriffv. McGriff, 140 Idaho 642, 99 P.3d 111 (2004). McMahon v. Auger, 83 Idaho 27, 357 P.2d 374 (1960). Mitchell v. Pincock, 99 Idaho 56, 577 P.2d 343 (1978). Rudeen v. Cenarrusa, 136 Idaho 560, 38 P.3d 598 (2001). State v. Blaine County, 139 Idaho 348, 79 P.3d 707 (2003).
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State v. Hart, 135 Idaho 827, 25 P.3d 850 (2001). State v. Knott, 132 Idaho 476, 974 P.2d 1105 (1999). State v. Rhode, 133 Idaho 459, 988 P.2d 685 (1999). State v. Thompson, 114 Idaho 746, 760 P.2d 1162 (1988). Steward v. Nelson, 54 Idaho 437,32 P.2d 843 (1934). Thompson v. Engelking, 96 Idaho 793, 537 P.2d 635 (1975). 7. Other Cases: Adams v. Howerton, 486 F. Supp. 1119 (C.D. Cal. 1980). Andersen v. King County, No. 04-2-04964-4, 2004 WL 1738447 (Wash. Super. Aug. 4, 2004). Anonymous v. Anonymous, 325 N.Y.S.2d 499 (N.Y. Sup. Ct. 1971). Baehr v. Lewin, 852 P.2d 44 (Haw. 1993). Baehr v. Miike, No. 91-1394, 1996 WL 694235 (Haw. CiT. Ct. Dec. 3, 1996). Baehr v. Miike, 852 P.2d 44 (Haw. 1993). Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971). Baker v. State of Vermont, 744 A.2d 864 (Vt. 1999). Burns v. Burns, 560 S.E.2d 47 (Ga. Ct. App. 2002). Castle v. State of Washington, No. 04-2-00614-4, 2004 WL 1985215 (Wash. Super. Sept. 7, 2004). Citizens for Equal Protection, Inc. v. Bruning, 368 F. Supp. 2d 980 (D. Neb. 2005). Dean v. District of Columbia, 653 A.2d 307 (D.C. Ct. App. 1995).
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Deane v. Conaway, No. 24-C-04-005390, 2006 WL 148145 (Md. Cir. Ct. Jan. 20, 2006). Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003). Hennefeld v. Township ofMontc1air, 22 N.J. Tax 166 (2005). Hernandez v. Robles, 805 N.Y.S.2d 354 (N.Y. App. Div. 2005). High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990). In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004). Jones v. Hallahan, 501 S.W.2d 588 (Ky. Ct. App. 1973). Judicial Council Coordination Proceeding (Marriage Cases), No. 4365, 2005 WL 583129 (Cal. Super. Ct. March 14,2005) (unpublished decision). Langan v. St. Vincent's Hospital of New York, 802 N.Y.S.2d 476 (N.Y. App. Div. 2005). Largess v. Supreme Judicial Court for the State of Massachusetts, 317 F. Supp. 2d 77 (D. Mass.), aff'd, 373 F.3d 219 (1st Cir.), cert. denied, 542 U.S. 1002, 125 S. Ct. 618, 160 L. Ed. 2d 461 (2004). Li v. State of Oregon, 110 P.3d 91 (Or. 2005). Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App. 2005). Raum v. Restaurant Assoc., 675 N.Y.S.2d 343 (N.Y. App. Div. 1998). Rosengarten v. Downes, 802 A.2d 170 (Conn. Ct. App. 2002). Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974), rev. denied, 84 Wash. 2d 1008 (1974). Smelt v. County of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005).
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Standhardt v. Superior Court of Arizona, 77 P.3d 451 (Ariz. Ct. App. 2004). State v. Burk, No. 86162,2005 WL 3475812 (Ohio Ct. App. Dec. 20,2005). Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005). Zukowski v. Dunton, 650 F.2d 30 (4th Cir. 1981).
8.
Other Constitutions:
Ala. Const. art. I, 25 (1999). Ark. Const. amend. 83 (2004). Ga. Const. art. I, 4 'U I (2004). Ky. Const. 233A (2004). La. Const. art. XII, 15 (2004). Mich. Const. art. I, 25 (2004). Miss. Const. art. XIV, 263A (2004). Mo. Const. art. I, 33 (2004). Mont. Const. art. XIII, 7 (2004). Neb. Const. art. I, 29. Nev. Const. art. I, 21 (2002) . N.D. Const. art. XI, 28 (2004). Ohio Const. art. XV, 11 (2004). Okla. Const. art. II~ 35 (2004). Or. Const. art. XV, 52 (2004). Tex. Const. art. I, 32 (2005). Utah Const. art. I, 29 (2005).
9.
Other Authorities:
22 M.R.S.A. 1711-D. 41 C.J.S. Husband and Wife 58. 45 C.P.R. 164.510. 1993 Idaho Att'y Gen. Ann. Rpt. 119. HRS 323-2 LSA-R.S. 40:2005.
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DATED this 8th day of February, 2006.
LAWRENCE G. WASDEN Attorney General
Analysis by:
EMILY A. MAc MASTER Deputy Attorney General
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EXHIBIT F

DATE: TIME: PLACE: MEMBERS: February 5, 2004 1:30 p.m. GOLD ROOM Chairman Field(18), Vice Chairman Clark, Representatives Sali, Ellsworth, Smith(24), Ridinger, Harwood, Edmunson, Kulczyk, Nielsen, Ring, Shirley, Wills, Boe, Andersen, Pasley-Stuart Replacing Vice Chairman Clark was Mike Jorgenson
ABSENT/ EXCUSED: GUESTS: MINUTES:
See attached sign-in sheets Chairman Field called the meeting to order and asked the members to review the minutes. Representative Wills moved to accept the minutes of the meeting held on January 29, as written. Motion carried. The Chairman welcomed everyone and said the members received hundreds of emails and phone calls about the resolution before the committee. The purpose of the resolution is to define marriage. The members would not be here discussing this issue if it was one of hate. There also have been many people asking if this issue could not be put aside and more important issues studied. The Chairman said there are over 700 bills printed for this session of the legislature. However, this is the most emotional issue. Civility to all is the rule.
HJR 9:
Chairman Field said there were long lists of people who wanted to testify. Therefore, except for opening remarks by one of the sponsors, the testimony would be limited to three minutes in order that all might be heard. The same testimony should not be repeated. If that is the case, it would be appreciated if the testifiers would state their name and whether they are for or against the resolution. Representative Kulczyk was recognized to explain the legislation. Representative Kulczyk started his remarks by thanking the Chairman and his Co-sponsors for taking the time to work on and hear this proposed constitutional amendment. On line 17 of the resolution a new Section 28 has been added which defines marriage by saying one man and one woman at one time shall be recognized as valid in this state. This constitutional amendment will not change the policy in the state of Idaho. This is being done in view of the overturning of the Massachusetts law regarding marriage. In order to pass, this amendment would require a 2/3 majority vote in the House, a 2/3 majority vote in the Senate and a 2/3 majority vote by the people. The cost would be approximately $40,000 to $45,000 if this goes into law. In closing, Representative Kulczyk quoted President Bush as saying: "Marriage is a sacred institution between a man and a woman. If activist judges insist on re-defining marriage by court order, the only alternative will be the constitutional process. We must do what is legally necessary to defend the sanctity of marriage."
CON:
John Hummel was recognized to testify. Mr. Hummel said he is an Idaho native and a licensed attorney who has practiced law in the state of Idaho since 1986. He is also a gay man. He opposes passing the resolution for many reasons. We are debating this discriminatory legislation when there are many other important issues confronting this state. The resolution is redundant since the Legislature enacted legislation covering this issue several years ago. The mere act of presenting this amendment to the electorate for consideration in a costly election will stir up prejudice and create division among Idahoans. The cost of placing this issue on the ballot will be $40,000 to $50,000. Mr. Hummel said he would rather see this money spent on education. Also, five years ago his partner of nine years died suddenly. At the hospital, Mr. Hummel used his medical power of attorney to make decisions about his care. He had written a will that left his property to Mr. Hummel, and Mr. Hummel probated that will in Ada County and received his property. If this resolution passes, those decisions might be challenged by a court. This amends the highest law in this state and should be changed only when absolutely necessary and when the public is presented with compelling reasons for doing so.
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PRO: Allen Gorin was recognized. Mr. Gorin said he represents the Idaho Chapter of Jewish Coalition. The concept of marriage came from the Jews. Adding this amendment is necessary to protect that concept. Bishop Harry Bainbridge, Episcopal Diocese of Idaho, was recognized. The Bishop said all of us are interested and concerned that we have a healthy society and strong family values. This bill under consideration does not promote this goal. It says that liberty and justice are not for all, but just for the majority of the population. It will divide our community. Julie Lynde was recognized. Ms. Lynde said she represents Cornerstone which fully supports the resolution. Don and Susan Curtis of Boise were recognized. They have been married for 37 years. This current legislation is not aimed at solving any problem. It makes a scapegoat out of gays and lesbians. No gain will be had by passing this legislation. The gay and lesbian population are not enemies, but are part of the human family. Please do not pass this legislation. Darci Gromolski was recognized. Mrs. Gromolski said she is a housewife and mother and she supports the resolution. Robert McDiarmid was recognized to testify. Mr. McDiarmid said he is a board member of Your Family Friends and Neighbors, and a gay citizen of Idaho. This proposed amendment to the constitution would bar marriage between gay people. This proposal bashes gay people in Idaho. This bill is really about hate. The Chairman corrected Mr. McDiarmid by saying hate is not the issue here. Mr. McDiarmid said he respectfully disagreed. He concluded his remarks by saying he and his partner love Idaho and lead a quiet life. They are not a threat to the state. Brian Gromolski was recognized. Mr. Gromolski said he is a father of three and has been married for ten years. He supports the legislation. Marriage is a sacred institution between one man and one woman. Agnes Burkholder was recognized to testify. Mrs. Burkholder said she has been married for 61 years. She asked the members to table this resolution. She doesn't feel that it will help the families at all. Paul Rolig was recognized. Mr. Rolid said he opposes this bill because he doesn't believe that all marriages have to be exactly the same. It is his family's belief that legalizing same-sex marriage in no way threatens his marriage or anyone else's. His wife and he believe the most important purpose of government is to secure people's rights to life, liberty, and the pursuit of happiness. This proposed amendment secures no one's life, no one's liberty and no one's happiness. David Snyder was recognized. The question is not whether we are going to have an amendment. It is whether morality can be legislated. Government established marriage between a man and woman. God legislates morality. This legislation would secure a building block on what marriage is all about. Marty Durand was recognized. Ms. Durand said the ACLU of Idaho strongly objects to the proposed anti-gay constitutional amendment. This amendment seeks to deprive loving lesbian and gay couples in this state of any mechanism for ensuring that the law recognizes their emotional and financial commitment to one another. The proposed amendment is fundamentally unfair and, moreover, constitutionally deficient. If the state legislature were to approve this amendment, it would do so with the intent of fencing lesbian and gay couples out of any form of civil equality. Such action would violate the constitutional guarantee of equal protection of the laws. Jean Luze Revaul stood in support of the resolution. Mary Knodell of the Unitarian Universalist Church of Boise was recognized. Ms. Knodell said legislation should honor the worth and dignity of each human being. Please vote against this resolution. Gloria Pfost was recognized. Ms. Pfost said she supports this resolution. She believes it would be good to give a message to the rest of the country that Idaho stands for marriages between men and women. Man was created to be able to reproduce with a woman. The citizens of Idaho stand with our legislators. Tina Alexanderson was recognized. Ms. Alexanderson said she is opposed to this
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legislation. She reveres the constitution. This legislation hurts her and her family. They cannot enjoy the benefits enjoyed by heterosexual couples. She said she didn't choose homosexuality and asked the members not to sanction discrimination. CON: Reverend Susan Watterson, First Congregational Church of Boise, was recognized. Pastor Watterson said she is in opposition to the passage of the resolution for many reasons, but chiefly because of her Christian convictions. The United Church traces its roots back to the Reformers, Martin Luther, John Calvin and other courageous and visionary men and women of faith who worked for justice for all God's people. She said we are many members, but are all one body in Christ. We all have different gifts. We are called to love our neighbor as ourselves. We believe that lesbian, gay and bisexual people share with all others the worth that comes from being unique individuals. James Mandell was recognized. Mr. Mandel said he has been married for 22 years and has three children. He teaches the children love and kindness and honesty. If one of his children turns out to be gay, he will love that child just as much. We should spend more time helping and loving others. Reverend Betty Luginbill was recognized to testify. She said sometimes in our efforts to fix something we don't like, we open a can of worms that is far worse than what we wanted to fix. Certain basis human rights and civil liberties are due all persons, including homosexual persons. There is an issue of simple justice in protecting their rightful claims where they have shared material resources, pensions, guardian relationship. Mutual powers of attorney and other lawful claims attendant to contractual relationships. Lee Flinn, Idaho Women's Network, was recognized. The network opposes HJR 9. The legislation is divisive and discriminatory. Please protect the quality of life for all citizens of Idaho. Marilyn Stein was recognized. She prefaced her speech by saying much of what the committee is here today to decide is already in Idaho Statute. She works for an ammunition company which allows her to take advantage of most of the medical, dental and vision insurance benefits for herself and her same-sex partner, Karen Ross. She and her partner have documentation attesting to their committed union in wills, durable powers of attorney, notarization of our union for proof for her company. However, she is taxed on the insurance money for her partner. Also, under today's marriage rules, her partner would get nothing from Social Security. This is about the state of Idaho being fair and doing right. Karen Ross was recognized. Ms. Ross said she is a direct descendant of Betsy Ross of American Flag/Daughters of the American Revolution fame. She was raised in a Fundamentalist family. She met her soulmate and the two have committed themselves to each other. We are not a threat to society. Fred Riggers was recognized to give his testimony. Mr. Riggers said he has been married to the same woman for 40 years. He has a lot of children and grandchildren. He puts his trust in the legislature. He believes the legislature will do the right thing. Leslie Goddard, director of the Idaho Human Rights Commission, spoke in opposition to the resolution. Idaho already has a statute holding that same-sex marriages violate the public policy of this state and are not recognized here. This law was passed in 1996. There is currently a division of opinion as to whether it is a good or a bad law. There is no need to rush into an amendment of the Idaho Constitution because of what happened in Massachusetts. Give the courts a chance to look at Idaho's law and let us know if we have a problem. Let's give the very important issues about marriage time for considered judgment by the people of Idaho and the court system. Do not carve out certain people from our Constitution and deny them the right to equal treatment under the law. Brian Anthony was recognized. Mr. Anthony said he cannot enjoy the benefits of marriage. The world is divided into two camps - those who have rights and those who do not. The sponsors of this bill don't understand equal protection for all. He and his partner are proud Idaho natives and deserve better. Nicole LeFavour was recognized. Ms. LeFavour pointed to a lack of merit of this constitutional amendment. The majority of the people in this room oppose this bill.
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Ms. LeFavour asked the members to vote their conscience. CON: Alex Neiwirt was recognized. Mr. Neiwirt is a fourth generation Idahoan. This is a constitutional amendment which would alter the Idaho Constitution. He urged the representatives to stand against its passage. Rev. Elizabeth Beck, pastor of the First Presbyterian Church of Emmett, was recognized. Rev. Beck stood in opposition to the resolution. It seeks to radically change the Constitution which was written to protect the rights of all citizens of this state. The proposed legislation seeks to deny the rights of non-heterosexuals to enter into committed relationships that are the equivalent of marriage. Most people of faith are strongly in favor of granting civil rights to every citizen of Idaho, regardless of sexual orientation. She asked the Committee to take a positive stand for all the people of Idaho and vote against this mean-spirited legislation. Sara Kelly was recognized. Ms. Kelly said she and her partner are raising a beautiful son, Nicholas. She wants her son to be raised in a loving, accepting community. Heather Scott was recognized. Ms. Scott said this resolution shows discrimination. This will not protect the children. Children will learn that only a relationship between a man and woman is recognized as a family. She asked the Committee to consider whether the Committee needs to pass the bill and, if so, why.
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David Snyder was recognized. He said the institution of marriage is an ancient one. Because of the times, it has been necessary to redefine marriage. Homosexual couples cannot have biological children. It is essential that we define marriage and the state should make laws on moral issues. Jared Hawk was recognized. Mr. Hawk said this issue is not about money. Relationships between homosexuals are real. If they adopt, the genes don't determine the degree of love that a child will receive. However, our society has shown that children are raised best by having a mother and a father. Therefore, Mr. Hawk said he supports the resolution. Sean Kelly was recognized. Mr. Kelly said he is a teacher. We try to promote tolerance in our school. What kind of message will this resolution send to our young people. Many children grow up with only one parent and they don't do very well. Children need two parents, regardless of their sexual orientation. House Republican Leader Lawerence Denney was recognized to give closing remarks. Representative Denney said this is a moral issue and it is necessary to establish boundaries. If everyone is allowed to do what they want, we will have chaos. Tolerance is considered to be one of the highest values of modern society. You cannot make people moral through legislation. However, we can and we must legislate moral laws. The family is the cornerstone of our society. When the family collapses, it is the children who are damaged. On a massive scale, the community crumbles. In closing, Representative Denney reiterated that we must establish boundaries and this is one of those boundaries. Representative Sali moved to send HJR 9 to the floor without recommendation. Representative Pasley-Stuart moved to hold HJR 9 in Committee. Representative Nielsen moved to send HJR to the floor with a Do Pass recommendation. During a discussion on the motion, Representative Boe said she was opposed to the legislation. It is unnecessary and divisive. It is irresponsible to try to change our Constitution. Representative Shirley said he respects the right of people to make their choices. Most choice in this country is made under the umbrella of law. He said he has the obligation to preserve those parts of our culture and past that are most beneficial to the whole community. He supports the amendment. Representative Ring said he had some heartburn with the bill. He felt it was mean-spirited and overkill. Therefore, he stands in opposition to its passage. Representative Pasley-Stuart said she was opposed to the motion. We currently have laws in place and it violates the 14th amendment. It is
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Warren Bean was recognized. Mr. Bean asked the Committee to table this resolution. This is a national issue. Study what the consequences would be if it is passed. Society is moving to be more gracious.

unnecessary and unwise. Representative Sali said it would be irresponsible not to send this to the floor. The public policy of this state should not be established by the court system. Representative Smith spoke in opposition to sending the resolution to the floor. Representative Andersen said this should go to the people of the state in order for them to vote their conscience. A roll call vote was requested. ROLL CALL VOTE: Voting Aye - Representatives Field, Sali, Ellsworth, Harwood, Edmunson, Kulczyk, Nielsen, Shirley, Wills and Jorgenson, substituting for Clark. Voting Nay Representatives Smith, Ridinger, Ring, Boe, Andersen and Pasley Stuart. 10-6-0. Motion carried. Chairman Field thanked all those who attended the meeting. There being no further business to come before the Committee, the meeting was adjourned at 4:35 p.m.
ADJOURN:
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EXHIBIT G
ATTORNEY GENERAL OPINION NO. 93-11 Honorable Mary Lou Reed Minority Leader Idaho State Senate 10 Giesa Road Coeur d'Alene, ID 83814 Honorable Mary Ellen Lloyd Minority Caucus Chair Idaho State Senate 162 Hawthorne Pocatello, ID 83204 Per Request for Attorney General Opinion Regarding the Idaho Citizens Alliance's Revised Initiative Dear Senators Reed, Davis and Lloyd: QUESTIONS PRESENTED 1. Section 67-8002 addresses minority status of those who engage in homosexual behavior as well as special classifications based upon homosexuality or sexual orientation. What would be the effect of this section and does it violate the United States Constitution? Section 67-8003 addresses same-sex marriages and domestic partnerships. What, if any, is the legal effect of this provision and what does the term "domestic partnership" mean? Section 67-8004 limits the discussion of homosexuality in the public elementary and secondary schools. Does this provision violate the United States Constitution? Section 67-8005 limits expenditure of public funds and access to library materials discussing homosexuality. Does this provision violate the United States Constitution? Section 67-8006 addresses consideration of private sexual behavior in the public employment context. What does this section mean? What is its scope and how Honorable Dennis M. Davis Assistant Minority Leader Idaho State Senate 816 Sherman Avenue Coeur d'Alene, ID 83814
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would a court likely construe this provision in context with the balance of the initiative's provisions? 6. 7. Does the initiative violate any rights guaranteed under the Idaho Constitution? If certain provisions of the initiative are unconstitutional, can the other provisions be given effect by employment of the initiative's severability clause? CONCLUSION 1. Section 67-8002 essentially authorizes discrimination against homosexuals in such contexts as employment, housing, education and health care. This provision violates equal protection guarantees of the United States Constitution by officially condoning discrimination against homosexuals and by denying them equal access to the political process. Section 67-8003, addressing same-sex marriages and domestic partnerships, is merely a statement of the current law already in place in Idaho. The term "domestic partnership" presumably means an arrangement whereby two homosexuals have agreed to share their home, financial resources and life together. Because the provision simply restates current law, it has no legal effect. Section 67-8004 violates First Amendment protections. A state may reasonably restrict school-endorsed curriculum-related speech in elementary and secondary schools to further legitimate pedagogical concerns. Significant discretion is given to the state and local authorities in determining whether such restrictions are reasonable and whether the concerns they further are, in fact, legitimate pedagogical ones. Nevertheless, there are limits. Suppression of a viewpoint not based on legitimate pedagogical concerns but because the state disagrees with it falls outside the bounds of the state's permitted discretion. As to curriculumrelated speech, section 67-8004 goes beyond the bounds of the state's discretion and violates the First Amendment. Further, the section restricts some noncurriculum-related speech as well as advice a counselor may offer a student/ patient. These restrictions are also violations of free speech rights. Section 67-8005, addressing expenditure of public funds and access to library materials for minors, is unconstitutional. The government can place some restrictions on the expenditure of public funds to ensure those funds are not spent on speech which falls outside of the scope of the particular government program being subsidized. However, restricting funds to suppress an idea in numerous programs at state and local government levels falls far beyond what is a legitimate
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restriction. Moreover, there are certain traditional areas, such as universities, public forums, doctor-patient relationships, artistic expression and scientific research, in which the government cannot censor speech even if that speech is directly subsidized by the government. Section 67-8005 is drafted in sweeping terms and violates this precept. Additionally, the provision addressing access to library materials is overbroad and violates the First Amendment rights of minors. 5. Section 67-8006 allows discrimination against homosexuals in the public employment context, but does not require it. More importantly, the section does not address discrimination in housing, education, health care and private employment contexts. Thus, section 67-8006 does not remedy the constitutional problems created by section 67-8002. Like the United States Constitution, the Idaho Constitution guarantees equal protection of the law and free speech. These independent state constitutional rights are also violated by the initiative's sweeping terms. The severability clause would not salvage this initiative because so many of its provisions violate the federal and state constitutions. A reviewing court will not rewrite a law when its basic core and purpose have been invalidated. BACKGROUND The Idaho Citizens Alliance ("ICA") is sponsoring an effort to place its initiative regarding homosexuality on the 1994 election ballot. The ICA submitted a draft of its initiative on March 4, 1993, and this office, in its March 18, 1993, Certificate of Review, stated that almost every provision of the proposed initiative was unconstitutional. The ICA subsequently redrafted the initiative, making, in at least some of the provisions, substantial changes. Consequently, this office's Certificate of Review is no longer completely germane as to each provision. This formal opinion will review afresh each of the initiative's provisions and discuss their validity. ANALYSIS I. SECTION 67-8002 The first section of the ICA initiative, section 67-8002, provides: SPECIAL RIGHTS FOR PERSONS WHO ENGAGE IN HOMOSEXUAL BEHAVIOR PROHIBITED. No agency, department,
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or political subdivision of the State of Idaho shall enact or adopt any law, rule, policy, or agreement which has the purpose or effect of granting minority status to persons who engage in homosexual behavior, solely on the basis of such behavior; therefore, affirmative action, quota preferences, and special classifications such as "sexual orientation" or similar designations shall not be established on the basis of homosexuality. All private persons shall be guaranteed equal protection of the law in the full and free exercise of all rights enumerated and guaranteed by the U.S. Constitution, the Constitution of the State of Idaho, and federal and state law. All existing civil rights protections based on race, color, religion, gender, age, or national origin are reaffirmed, and public services shall be available to all persons on an equal basis. This section violates the Equal Protection Clause of the United States Constitution, both by promoting discrimination against homosexuals and by denying them equal access to the political process. A. The Legal Effect of Section 67-8002
A constitutional analysis of proposed section 67-8002 cannot be undertaken without first discussing the section's legal effect. The section begins by forbidding any "agency, department or political subdivision of the State of Idaho" from enacting any "law, rule, policy or agreement" which has the "purpose or effect of granting minority status to persons who engage in homosexual behavior." Thus, the section is directed at three legal entities--agencies, departments and political subdivisions of the state. Agencies and departments include an array of governmental or public organizations ranging from the Department of Health and Welfare to the State Board of Education which governs public universities. The term "political subdivision[s] of the State of Idaho" clearly encompasses counties, entities such as county hospitals, and other subdivisions such as school, highway and irrigation districts. Finally, the term includes cities and public organizations which they fund.1 What the initiative targets is the enactment of certain "law[s], rule[s], polic[ies], or agreement[s]." The use of the term "law" is confusing in this context as it would normally refer to statutes, which only the legislature can enact. Consequently, the question arises as to whether this initiative is directed at the state legislature as well as agencies, departments and political subdivisions. However, it is well settled that the
1 "Political subdivision" is commonly defined in the Idaho Code to include numerous local governmental entities including counties, cities and other municipal corporations. See, e.g., Idaho Code 6-902, 21-101, 31-4510 and 63-3622 J.J. We assume a similar meaning was intended in the proposed initiative.
legislature cannot be bound by an initiative. Luker v. Curtis, 64 Idaho 703, 136 P.2d 978 (1943). Indeed, this settled principle likely accounts for the legislature not being expressly mentioned in the initiative. This office concludes that, while section 67-8002 is not entirely clear, the term "law" is probably used in a generic sense meaning enactments such as ordinances, rules and policies that have the force of law, and that its use is not intended to pull the legislature within the scope of this section. Having addressed which public entities are restricted by the initiative, the next question is which group of citizens is burdened by these restrictions. Section 67-8002 forbids the granting of "minority status to persons who engage in homosexual behavior," but then adds that "special classifications such as 'sexual orientation' or similar designations" based on "homosexuality" cannot be established. (Emphasis added.) Thus, the provision is not limited to overt conduct, but encompasses the mere status of homosexuality. The "homosexual behavior" which falls within the section's reach is not defined by the initiative but is, instead, left vague. Arguably, the term encompasses conduct ranging from sexual acts criminalized by Idaho Code 18-6605 (infamous crimes against nature) to clearly legal conduct such as holding hands.2 See Watkins v. U.S. Army, 875 F.2d 699, 715 (9th Cir. 1989) (alleged knee-squeezing described as homosexual act). As to the status of "homosexuality," it is not necessarily linked to any behavior at all and includes within its scope feelings, thoughts and preferences, and an identification with a particular group. Section 67-8002 of the initiative first precludes "granting minority status" to homosexuals. The term "minority status" alone has little legal significance. Idaho's statutory and case law recognize some legal classifications based upon race, color, religion, gender, age and national origin. In Idaho, the primary legal significance of these classifications is that they form the bases for legally required equal treatment in the areas of employment, real estate transactions, educational services and public accommodations. See Idaho Code 18-7301 and 67-5909. Additionally, these legal classifications can be used to enhance penalties for "hate crimes." Idaho Code 18-7902 and 18-7903. It is important to note that Idaho law, as presently structured, does not confer special status upon any minority. Idaho Code 18-7301 and 67-5909, for example, prohibit discrimination on the basis of race, national origin and religion. But those statutes offer no more protection to "minorities" such as blacks, Hispanics, or adherents of particular religions than to "non-minority" whites of mainstream religions.
It is important to note that, while the term "homosexual behavior" includes conduct proscribed by Idaho Code 18-6605, that criminal statute is not limited to homosexual conduct alone. Idaho Code 18-6605 proscribes heterosexual as well as homosexual sodomy. It also criminalizes oral sex, both heterosexual and homosexual. See State v. Goodrick, 102 Idaho 811, 641 P.2d 998 (1982).
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To implement its "minority status" provision, however, section 67-8002 of the initiative further provides that "affirmative action, quota preferences and special classifications such as 'sexual orientation' or similar designations" may not be "established on the basis of homosexuality." (Emphasis added.) Idaho's statutory and case law do not have "affirmative action" or "quota preferences" for any specific group of people. However, Idaho does have legal classifications based upon characteristics such as race, gender, religion, age and national origin to legally require equal treatment for these groups. This initiative, in forbidding "special classifications such as 'sexual orientation'" or "similar designations . . . established on the basis of homosexuality," limits the protection homosexuals can obtain against discrimination. The true harm of section 67-8002 is its mandate precluding classifications based on homosexuality or sexual orientation. Under even the most narrow construction, this initiative, by forbidding classifications based upon "homosexuality" or "sexual orientation," ensures that homosexuals cannot receive the protections against discrimination in areas of employment, real estate transactions, educational services and public accommodations that other identifiable groups either currently receive or can seek. Section 67-8002, at a minimum, assures that rules, policies and agreements enacted or adopted by agencies, departments and political subdivisions of this state cannot require equal treatment of homosexuals.3 Finally, it is our opinion that the section's statement that "all private persons shall be guaranteed equal protection of the law" does not ameliorate the pragmatic consequences of section 67-8002. The equal protection guarantees provided in the state and federal constitutions reach only state action, not private acts of discrimination. Other types of legal provisions must be enacted or adopted to reach such private discrimination. Consequently, stating the Equal Protection Clause remains in effect does not soften the section's pragmatic effect of uniquely limiting the ability of agencies, departments and political subdivisions to legally require equal treatment of homosexuals. Indeed, this provision, reiterating equal protection guarantees, is little more than surplusage, as the ICA does not have the authority to suspend the Equal Protection Clause by initiative.
3 This is the most narrow reading of section 67-8002. Under a broader construction, by forbidding "special classifications" based upon homosexuality or sexual orientation, other types of beneficial legal provisions are arguably also precluded, such as AIDS education programs created by county hospitals and targeted at the homosexual community, or express policies at county sheriffs' offices to aggressively enforce criminal laws to combat local violence against homosexuals. In short, under a broader reading of section 67-8002, agencies, departments or political subdivisions of the state are forbidden to adopt any beneficial legal provision to address unique problems faced by the homosexual community because such provisions would invariably require a "special classification" based upon homosexuality.
In short, this section has significant pragmatic effects on the homosexual community. It prohibits agencies, departments and political subdivisions from adopting any laws, rules, policies or agreements requiring that homosexuals be treated equally. B. Encouragement of Private Discrimination and the Equal Protection Clause
Given the legal effect of section 67-8002 of the ICA initiative, the next question is what the constitutional implications are likely to be. At the outset, the provision, even under its most narrow construction, violates the Equal Protection Clause by condoning discrimination against homosexuals. Under current Idaho law, the state has taken no position on discrimination against homosexuals. Thus, for example, a private landlord can refuse to rent an apartment to someone because the landlord thinks (rightly or wrongly) that the person is a homosexual. That is a private bias. The state does not prohibit or approve of it; it simply does not address it. Its position is neutral, and the Equal Protection Clause is not implicated. This initiative, however, goes one step further. It effectively gives state approval to that private bias by announcing that this bias cannot be prohibited by agencies, departments and political subdivisions of the state. Moreover, the initiative also forecloses public agencies, departments and political subdivisions of the state from adopting policies or rules to prohibit such a bias in the decisions made within their own structure.4 The initiative, in essence, promises those who would discriminate that, no matter how serious the problems created by their discrimination or how dire the need for legal protections, absent a statute enacted by the legislature, the state will not interfere. By taking this position, the government becomes a partner in the discrimination against homosexuals, fostering that discrimination and placing upon it the state's endorsement. Similar official sanctions of discrimination have been found to violate equal protection guarantees. One of the earliest cases, Reitman v. Mulkey, 387 U.S. 369, 87 S. Ct. 1627, 18 L. Ed. 2d 830 (1967), involved a California amendment which prohibited the state from forbidding any person from selling or renting his real property to "such persons . . . as he, in his absolute discretion, chooses." The U.S. Supreme Court first reviewed the history of the amendment, noting its purpose was to overturn state laws prohibiting racial discrimination in housing and real estate, and concluded: "Section 26
As discussed below at p. 29, section 67-8006 of the initiative allows public employers to treat "private sexual behaviors" as a non-job-related factor. However, that section does not preclude discrimination against homosexuals in public employment, and it does not address discrimination in the areas of real estate, educational services, public accommodations and private employment, leaving the discriminatory effect of section 67-8002 intact as to these matters.
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was intended to authorize, and does authorize, racial discrimination in the housing market. . . . [T]he section will significantly encourage and involve the State in private discriminations . . . ." Id. at 381. The Court struck down the amendment, holding that it violated the Equal Protection Clause of the Constitution. Reitman involved discrimination against a racial minority. However, the Equal Protection Clause guarantees against invidious discrimination apply to all citizens, not just those who are members of traditionally "suspect" classes such as racial minorities. For example, in City of Cleburne, Texas v. Cleburne Living Center, Inc., 473 U.S. 432, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985), the U.S. Supreme Court reviewed a zoning ordinance banning group homes for the mentally retarded in a particular zoning district. Acknowledging the mentally retarded are not a suspect class under the Equal Protection Clause, the Court, using a lesser standard of judicial scrutiny, nevertheless struck down the ordinance on the ground that it arbitrarily and invidiously discriminated against the mentally retarded: Our refusal to recognize the retarded as a quasi-suspect class does not leave them entirely unprotected from invidious discrimination. To withstand equal protection review, legislation that distinguishes between the mentally retarded and others must be rationally related to a legitimate government purpose . . . . [S]ome objectives--such as "a bare . . . desire to harm a politically unpopular group"--are not legitimate state interests . . . . 473 U.S. at 446-47 (emphasis added; citations omitted). Thus, it is apparent that the Equal Protection Clause applies to all citizens, and state encouragement of private discrimination violates constitutional protections even if the targeted group is not a suspect class such as a racial minority. Indeed, the holding of Reitman, that state encouragement of private discrimination violates the Equal Protection Clause, has already been held to encompass discrimination against the homosexual community. In Citizens for Responsible Behavior v. Superior Court, 2 Cal. Rptr. 2d 648 (Cal. App. 4 Dist. 1991), a California court examined an initiative which would have prohibited the City of Riverside, California, from enacting "any policy or law which . . . classifi[ed] AIDS or homosexuality as the basis for determining an unlawful discriminatory practice . . . ." The court found that the proposed ordinance was designed to promote bias against a selected class of citizens--homosexuals --in violation of the Equal Protection Clause: "Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect." 2 Cal. Rptr. 2d at 658 (quoting Palmore v. Sidoti, 466 U.S. 429, 433, 104 S. Ct. 1879, 80 L. Ed. 2d 421 (1984)).
The ICA initiative, like the amendment in Reitman and the initiative in Citizens for Responsible Behavior, does not require private discrimination against homosexuals, but it condones it. It condones it by officially forbidding state agencies, departments and political subdivisions, like counties, from using their authority to require equal treatment of homosexuals. Thus, for example, a state agency contracting with builders could not include an anti-discrimination clause in its agreement. Likewise, a county could not use its inherent police power under art. 12, sec. 2 of the Idaho Constitution to require equal treatment of homosexuals in businesses within its borders. Moreover, the section condones public as well as private discrimination, as agencies, departments and political subdivisions are also forbidden to adopt policies prohibiting bias against homosexuals within their own confines. Importantly, this state-condoned discrimination is not based upon criminal conduct of the targeted group. As noted, this section of the initiative encompasses both conduct and status; behavior defined and prohibited by Idaho Code 18-6605 as well as other behavior, feelings, preferences and an identification with a particular group. Thus, under the initiative's terms, the state is encouraging discrimination against a broad range of Idahoans, many of whom may be in absolute compliance with Idaho law. When the state expressly announces that in many instances discrimination against a targeted group will not be halted, that discrimination bears the state's imprimatur. It is the opinion of this office that this state involvement in discrimination would not pass the most relaxed standard of review under the Equal Protection Clause--that the law be rationally related to a legitimate government purpose. Making the state a partner to discrimination against homosexuals in central areas of life is not a "legitimate" state objective nor a "legitimate" use of the government's power. City of Cleburne, 473 U.S. at 447; Citizens for Responsible Behavior, 2 Cal. Rptr. 2d at 658. Rather, it is an abuse of power based upon hostility to a particular group. An Idaho court would find that section 67-8002 is unconstitutional. C. Access to the Political Process and the Equal Protection Clause
Section 67-8002 singles out homosexuals as a group and substantially limits their ability to have many of their problems addressed by agencies, departments and political subdivisions of the state. While homosexuals may still seek beneficial legislation at the statewide legislative level, agency, department and political subdivision avenues are foreclosed to them. The same is not true for any other independently identifiable group in Idaho seeking comparable legal protections. This redefining of the political structure as to homosexuals alone is an unconstitutional denial of their right to equal access to the political process.
In Evans v. Romer, 854 P.2d 1270 (Colo. 1993), the recent opinion addressing Colorado's Amendment 2, which, among other things, forbade "any statute, regulation, ordinance or policy . . . whereby homosexual[ity]" could "entitle any person" to a "claim of discrimination," the Colorado Supreme Court discussed at length the right of equal access to the political process. After reviewing a series of opinions from the U.S. Supreme Court, the Colorado court concluded that "[t]he Equal Protection Clause guarantees the fundamental right to participate equally in the political process" and, further, "laws may not create unequal burdens on identifiable groups with respect to the right to participate in the political process absent a compelling state interest." 854 P.2d at 1279. This principle of equal access to the political process has been implicated in situations, like the one here, involving legislation intended to prevent an independently identifiable group of voters from using the normal political institutions and processes for obtaining legal protections beneficial to them. The landmark case is Hunter v. Erickson, 393 U.S. 385, 89 S. Ct. 557, 21 L. Ed. 2d 616 (1969), which involved an Akron city charter amendment that required any fair housing ordinance to be approved directly by the electorate, while all other types of ordinances could be enacted by the city council. The Court invalidated the amendment under the Equal Protection Clause because it "place[d] special burdens on racial minorities within the governmental process." 393 U.S. at 391. While the law reviewed targeted a particular racial minority, the principle at stake was broader. The Supreme Court stated that Akron was free to require a plebiscite as to "all its municipal legislation," but, having chosen to do otherwise, Akron could "no more disadvantage any particular group by making it more difficult to enact legislation on its behalf than it [could] dilute any person's vote or give any group a smaller representation than another of comparable size." Id. at 392-93 (emphasis added). In Washington v. Seattle School District No. 1, 458 U.S. 457, 102 S. Ct. 3187, 73 L. Ed. 2d 896 (1982), the U.S. Supreme Court reviewed an initiative which prohibited local school districts from using busing as a means to achieve integration. Due to the initiative, unlike all other local education issues, busing alone could only be decided at the statewide level. Revisiting Hunter, the Supreme Court held that the voters of Washington had impermissibly interfered with the political process and unlawfully burdened the efforts of an independently identifiable group to secure public benefits. Washington, 458 U.S. at 467-70. The Court stated that the Equal Protection Clause reaches political structures that "distort[] governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation." Id. at 467. The Court distinguished the Washington initiative from "laws structuring political institutions or allocating political power according to 'neutral principles' . . . [which] are not subject to equal protection attack." Id. at 470. Because laws based upon
neutral principles "make it more difficult for every group in the community to enact comparable laws, they 'provide a just framework within which the diverse political groups in our society may fairly compete.'" Id. (citation omitted). The Court held that the initiative invalidated in Washington was not based upon a "neutral principle" which burdened all seeking comparable laws equally, but instead used "the racial nature of an issue to define the governmental decisionmaking structure." Id. The principles articulated in Hunter and Washington are clearly not limited to race and, indeed, have already been applied to laws restructuring the political process in order to burden the homosexual community's ability to obtain beneficial legislation. The Colorado Supreme Court in Evans concluded that the homosexual community's access to the political process was burdened by Colorado's recent amendment barring discrimination claims brought by homosexuals because, unlike any other identifiable group, homosexuals alone would now have to amend the state constitution in order to be protected from discrimination: Rather than attempting to withdraw antidiscrimination issues as a whole from state and local control, Amendment 2 singles out one form of discrimination and removes its redress from consideration by the normal political processes. Amendment 2 expressly fences out an independently identifiable group. Like the laws that were invalidated in Hunter, which singled out the class of persons "who would benefit from laws barring racial, religious or ancestral discriminations," Amendment 2 singles out that class of persons (namely gay men, lesbians, and bisexuals) who would benefit from laws barring discrimination on the basis of sexual orientation. No other identifiable group faces such a burden--no other group's ability to participate in the political process is restricted and encumbered in a like manner. . . . Strict scrutiny is thus required because the normal political processes no longer operate to protect these persons. Rather, they, and they alone, must amend the state constitution in order to seek legislation which is beneficial to them. 854 P.2d at 1285. The Colorado Supreme Court remanded the case for trial, but also upheld the trial court's preliminary injunction that enjoined the amendment from going into effect, making it clear that the amendment would ultimately be struck down unless the state succeeded in proving a compelling interest justifying the burden placed upon the fundamental right of equal access to the political process.
Likewise, in Citizens for Responsible Behavior, the California court concluded that an initiative requiring voter approval only for ordinances prohibiting discrimination against homosexuals or AIDS victims, while all other comparable anti-discrimination laws could be enacted directly by the city council, violated the Equal Protection Clause: It is obvious that this provision raises obstacles in the path of persons seeking to have such ordinances enacted. The city council itself may enact ordinances barring discrimination against persons suffering from cancer or tuberculosis, or against families with children. However, under the proposed ordinance, persons seeking protective legislation against discrimination based on sexual orientation or AIDS must attempt to persuade a majority of the voters that such an ordinance is desirable. Precisely this arrangement was condemned in Hunter v. Erickson . . . . .... We are simply unable to conceive of any rational reason why the city council should be permitted to enact an ordinance barring discrimination against persons with any other disease, no matter how serious or communicable, but not one dealing with persons suffering from AIDS. Nor does any significant justification exist for allowing the City to continue to deal with housing difficulties faced by large families, but not with those confronting homosexuals. 2 Cal. Rptr. 2d at 655-56 (citations omitted).5 The ICA initiative also uses homosexuality to redefine the governmental decisionmaking structure. While the initiative does not require homosexuals to amend the state constitution or seek direct voter approval before obtaining beneficial laws, the initiative does foreclose to the homosexual community certain normal political avenues--namely, access to agencies, departments and political subdivisions which otherwise might be used to address their concerns. Thus, unlike all other identifiable political groups, homosexuals are barred from having their problems remedied via these regular political processes. Other identifiable groups can seek comparable anti-discrimination laws, rules, policies and agreements from an "agency, department or political subdivision of the State of Idaho." The homosexual community cannot. Regardless of the narrowness of the
In Citizens for Responsible Behavior, the court further noted that prohibiting local government from addressing local issues encountered by a specific group might also violate the First Amendment right to petition the government for redress of grievances as "the right becomes a hollow exercise if the local government has been deprived of the power to grant redress of the subject grievance." Id. at 655, n.9.
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issue they need addressed or the local level of the interests involved, statewide legislative decision-making is all that is available to them. If an initiative were proposed stating that farmers could not seek relief for their problems through the normal political processes, it would clearly be unconstitutional. Yet, that is what is happening here. An independently identifiable group is being subjected to political obstacles not because of the substantive nature of their problems, but, rather, because of who they, as a group, are. Using homosexuality as the basis to redefine the governmental decision-making structure and to foreclose normal routes of relief available to all other Idahoans seeking comparable protections violates the homosexual citizens' fundamental right to equal access to the political process. Under the strict scrutiny test and even under the rational basis test, it is difficult to conceive of a legitimate justification for this distinction. The Idaho judiciary would conclude that the distinction violates the Equal Protection Clause. D. Summary
Section 67-8002 of the initiative, at a minimum, precludes the homosexual community from obtaining anti-discrimination laws, rules, policies or agreements from agencies, departments and political subdivisions of the state. This violates the Equal Protection Clause both by using the state to encourage discrimination against homosexuals and by denying homosexuals equal access to the political process. The section's statement that "equal protection of the law" continues to be protected under the federal and state constitutions does not ameliorate the constitutional problems raised by section 67-8002. A law which specifically deprives individuals of constitutional rights cannot be remedied by an additional boilerplate clause stating the constitution has not been suspended. This section, if it is passed and challenged, will not withstand judicial scrutiny. II. SECTION 67-8003 The next section of the initiative, section 67-8003, states: EXTENSION OF LEGAL INSTITUTION OF MARRIAGE TO DOMESTIC PARTNERSHIPS BASED ON HOMOSEXUAL BEHAVIOR PROHIBITED. Same-sex marriages and domestic partnerships are hereby declared to be against public policy and shall not be legally recognized in any manner by any agency, department or political subdivision of the State of Idaho.
This provision provides that same-sex marriages and domestic partnerships may not be legally recognized in Idaho. While the term "domestic partnership" is not defined in the initiative, presumably, the drafters intended to refer to arrangements whereby two homosexuals have agreed to share their home, financial resources and life together. The legal effect of this provision is nil. The State of Idaho does not legally recognize either homosexual marriages or homosexual domestic partnerships. By statute, marriage is limited in Idaho to the union between a man and a woman. See Idaho Code 32-202. Moreover, "domestic partnerships" are nowhere officially recognized in Idaho law. Thus, the state currently has a policy on the institution of marriage, and section 678003 is merely a restatement of state law and policy. III. SECTION 67-8004 Section 67-8004 of the initiative addresses speech relating to homosexuality in public elementary and secondary schools. The section provides: PUBLIC SCHOOLS. No employee, representative, or agent of any public elementary or secondary school shall, in connection with school activities, promote, sanction, or endorse homosexuality as a healthy, approved or acceptable behavior. Subject to the provisions of federal law, any discussion of homosexuality within such schools shall be ageappropriate as defined and authorized by the local school board of trustees. Counseling of public school students regarding such students' sexual identity shall conform in the foregoing. This provision restricts speech that endorses the viewpoint that homosexuality is "healthy, approved or acceptable behavior." As with section 67-8002, the provision's language is inconsistent, referencing both homosexual "behavior," i.e., conduct, as well as the status of "homosexuality." The section restricts curriculum-related speech regarding homosexuality. In addition, the section's restrictions go beyond the classroom, preventing any "employee, representative or agent" from expressing those viewpoints in "connection with school activities." Finally, the section limits the discussion of homosexuality between counselors and students. Each of these restrictions will be discussed in turn.
A.
Curriculum-Related Speech
When this office reviewed the proposed initiative on March 18, 1993, the public school provision under review encompassed all public schools, from elementary through the doctorate level. We concluded that the provision violated basic principles of academic freedom. Much of our focus was upon censorship of unpopular or controversial ideas at the university level. The "public schools" section of the ICA initiative has been substantially altered by its drafters and now encompasses only elementary and secondary schools and no longer addresses universities.6 The question now is whether the restrictions placed upon teachers' and other school employees' speech in elementary and secondary schools, particularly as those restrictions relate to curriculum, violate any First Amendment rights of students or their teachers. At the outset, it should be noted that schoolchildren and their instructors, even through the high school level, do not enjoy the same degree of First Amendment protections as do university students and faculty. The Supreme Court's recent opinions have upheld restrictions on speech at the high school level. These recent opinions indicate that, although teachers and students in secondary schools retain some First Amendment protections, teachers' and students' speech which is curriculum-related and appears to carry the school's endorsement--such as statements made by a teacher in a classroom, articles in a student newspaper prepared by a journalism class, and statements made by students during school assemblies or school theater productions--may be restricted if the restrictions are both reasonable and further "legitimate pedagogical concerns." Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592 (1988). Initially, the Supreme Court appeared poised to apply extensive First Amendment protections at the secondary school level similar to those associated with academic freedom at the university level. See Keyishian v. Board of Regents of U. of St. of N.Y., 385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967). Two years after Keyishian, the Court upheld the right of schoolchildren to wear black armbands to class in protest of the Vietnam war, stating in now-famous language that it could "hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969). Tinker swept broadly in its protection of First Amendment rights while its description of exceptional situations justifying interference was narrow. The court stated that, in order to justify prohibiting
While public universities have now been excluded from section 67-8004, the "public schools" section of the initiative, they continue to be included within the broad scope of the "public funding" provision. The application and validity of the public funding restrictions as they relate to universities will be addressed at p. 22 discussing section 67-8005 of the initiative.
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expression, the speech must "'materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.'" Id. at 509 (citation omitted). Thirteen years later, in Board of Education v. Pico, 457 U.S. 853, 102 S. Ct. 2799, 73 L. Ed. 2d 435 (1982), the Supreme Court revisited free speech in public secondary schools and held that a school board could not remove books from a school library merely because of content objectionable to the board. In Pico, the Court began differentiating between school-sponsored as opposed to non-school-sponsored expression. Justice Brennan's plurality opinion focused on the library as the embodiment of the marketplace of ideas and, impliedly, less a part of the school curriculum than an opportunity for students' self-education. Chief Justice Burger's dissent viewed the library as part of the school's curricular environment and the selection of library materials as part and parcel of the school officials' authority to establish school curriculum. 457 U.S. at 889. Chief Justice Burger urged that school officials should be given wide discretion in exercising this authority. In Bethel School District No. 403 v. Fraser, 478 U.S. 675, 106 S. Ct. 3159, 92 L. Ed. 2d 549 (1986), the Court addressed the power of schools to impose standards not merely on formal curriculum but upon students' speech in school-sponsored forums. The Court in Fraser balanced free speech concerns against a high school's role in teaching "appropriate behavior" and "shared values." Holding that a school district had acted within its permissible authority in imposing sanctions upon a student in response to a speech he delivered at a voluntary school assembly in which he used elaborate and explicit sexual metaphors, the Court stated: These fundamental values of "habits and manners of civility" essential to a democratic society must, of course, include tolerance of divergent political and religious views, even when the views expressed may be unpopular. But these "fundamental values" must also take into account consideration of the sensibilities of others, and, in the case of a school, the sensibilities of fellow students. The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society's countervailing interest in teaching students the boundaries of socially appropriate behavior. .... . . . The determination of what manner of speech in the classroom or in the school assembly is inappropriate properly rests with the school board. The process of educating our youth for citizenship in public schools
is not confined to books, the curriculum, and the civics class; schools must teach by example the shared values of a civilized social order. Consciously or otherwise teachers--and indeed the older students--demonstrate the appropriate form of civil discourse and political expression by their conduct and deportment in and out of class. 478 U.S. at 681, 683 (citations omitted). Thus, in Fraser, the Supreme Court clarified that schoolchildren in school-sponsored forums do not have the full panoply of First Amendment free speech rights available to adults in other settings. Importantly, however, in reaching its holding the Court also emphasized that the penalties imposed and upheld in Fraser "were unrelated to any political viewpoint." 478 U.S. at 685. The Court's subsequent opinion in Kuhlmeier dealt with a school's prepublication control of the content of a school newspaper. In Kuhlmeier, the principal had banned from a school newspaper an article concerning divorce and an article addressing teen pregnancy. The Court first determined that the newspaper was not a public forum but instead part of the school's journalism curriculum. The Court then upheld the restriction, stating: [E]ducators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns. 484 U.S. at 273 (emphasis added). concerns" expansively: The Court described "legitimate pedagogical
In addition, a school must be able to take into account the emotional maturity of the intended audience. . . . A school must also retain the authority to refuse to sponsor student speech that might reasonably be perceived to advocate drug or alcohol use, irresponsible sex, or conduct otherwise inconsistent with "the shared values of a civilized social order . . ." or to associate the school with any position other than neutrality on matters of political controversy . . . . 484 U.S. at 272. Likewise, the Court used a broad definition of "curriculum" which it said encompassed "school-sponsored publications, theatrical productions, and other expressive activities that students, parents and members of the public might reasonably perceive to bear the imprimatur of the school." Id. at 271.
Under the Supreme Court's recent jurisprudence, it is clear that elementary and secondary school speech that is curriculum-related may be reasonably restricted to further legitimate pedagogical concerns. A school may take into account the age of the audience and the sensitivity of issues being addressed. This is particularly so when sexual issues are involved, as Kuhlmeier held. See also Fraser, 478 U.S. 675. Thus, there is clearly no constitutional problem with section 67-8004's requirement that any discussion of homosexuality within public schools be "age-appropriate." On the other hand, it does not necessarily further a "legitimate pedagogical concern" if a school opens up a topic for political discussion and then bans the opposing viewpoint. A school could not, for example, establish a rule that during class discussions on current events, students who criticized one political party would be suspended while students who criticized another political party would receive higher marks. See, e.g., Searcey v. Harris, 888 F.2d 1314 (11th Cir. 1989) (once school board determines students should learn about career opportunities at "career day," it cannot exclude peace organization solely because organization disagrees with board's views regarding the military). At some point, the state, the school board and educators' discretion to establish and control school curriculum can be abused. This abuse occurs if restrictions, rather than furthering "legitimate pedagogical concerns," are simply pretexts for suppressing political viewpoints with which the state does not agree. When it comes to homosexuality, the balance is more difficult. Arguably, the state could exclude the issue from teachers' discussions altogether in curriculum-related activities. However, the ICA initiative does not do this. Age-appropriate discussion of the topic is allowed, but one viewpoint on the issue is prohibited. Yet, it is also true that homosexual sodomy, like heterosexual sodomy, is a crime in Idaho, see Idaho Code 18-6605, and Kuhlmeier certainly holds that the advocacy of illegal or irresponsible behavior can be restricted in the classroom. The language of section 67-8004 of the initiative, however, goes beyond mere "endorsement" of the specific conduct prohibited by Idaho Code 18-6605. It prohibits the "promot[ion], sanction[ing] or endorse[ment] [of] homosexuality as a healthy, approved or acceptable behavior." "Homosexuality" as used throughout the initiative is a broad term, encompassing both conduct and status; behavior defined and prohibited by Idaho Code 18-6605; as well as other behavior, feelings, preferences and an identification with a particular group. The ICA initiative abuses the discretion given the state and educators over school curriculum. Curriculum-related speech endorsing illegal or irresponsible sexual conduct can be restricted in elementary and secondary schools and, thus, the state could preclude teachers from advocating, in the classroom, illegal homosexual sodomy. But, the wording of the initiative goes beyond this. It would affect the discussion of topics
ranging from homosexuals in the military to AIDS. A court would be troubled by the breadth of the ICA initiative. The initiative, for example, would allow a teacher to raise, in a high school civics class, gays in the military as a topic for discussion, with the state officially dictating the outcome of the discussion and prohibiting one viewpoint on this topic from being addressed. The ICA initiative permits the state to cross the line between refusing to endorse illegal conduct and requiring the classroom to choose sides in an ongoing political debate and banning the viewpoint with which the state disagrees. Therefore, it is the opinion of this office that the ICA initiative has crossed that line by either prohibiting or chilling expression which is protected by the First Amendment. B. Non-Curriculum-Related Speech
While the government has the discretion to significantly limit curriculum-related speech to further legitimate pedagogical concerns, this authority does not extend to noncurriculum-related or non-school-sponsored speech. Public school employees do not lose their First Amendment rights merely because they work for the state. See Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968) (holding teacher could not be fired for letter to editor of local newspaper criticizing school board); City of Madison v. Wis. Emp. Rel. Com'n, 429 U.S. 167, 97 S. Ct. 421, 50 L. Ed. 2d 376 (1976) (non-union teacher cannot be prohibited from speaking on negotiation issue at open school board meeting); Levin v. Harleston, 966 F.2d 85 (2d Cir. 1992) (teacher cannot be disciplined for letters he wrote to New York Times); National Gay Task Force v. Board of Education of the City of Oklahoma, 729 F.2d 1270 (10th Cir. 1984), aff'd, 470 U.S. 903, 105 S. Ct. 1858, 84 L. Ed. 2d 776 (1985) (teacher cannot be punished for publicly advocating the repeal of an anti-sodomy law). The ICA initiative prohibits speech sanctioning homosexuality by any "employee, representative or agent" of a public elementary or secondary school "in connection with school activities." The scope of this provision is much too broad. Not only does it encompass curriculum-related speech, it also encompasses such statements as those made by teachers at faculty meetings and by board members at board meetings. Discussion and opinion on homosexual issues cannot be censored by the state at these adult, noncurriculum-related functions. To even attempt to do so is a violation of First Amendment principles and would be enjoined by a court. C. Counseling Services
Finally, section 67-8004 mandates that counseling of public school students must conform with the standard on homosexuality enunciated in that section. In short, a counselor must not indicate to a troubled youth seeking counseling that homosexual behavior can ever be considered "healthy, approved or acceptable."
This provision prohibits a non-judgmental approach toward sexual orientation and requires an institutional stance against homosexuality. Under this restriction, a counselor's independent judgment relative to the best interests of a minor client is subordinated to the state's endorsed sexual identity preference, regardless of the psychological needs of the client or the harm potentially inflicted. The U.S. Supreme Court recently addressed First Amendment implications of restrictions placed upon government counseling services and upheld a regulation prohibiting funds granted under the federal Title X family planning program from being expended on abortion counseling. Rust v. Sullivan, ___ U.S. ___, 111 S. Ct. 1759, 114 L. Ed. 2d 233 (1991). The Court reasoned that the speech at issue was simply beyond the scope of the narrow federal program being funded, 111 S. Ct. at 1773, also noting that fund recipients remained "free to pursue abortion-related activities when they [were] not acting under the auspices of the Title X project." 111 S. Ct. at 1775. Importantly, the Court further stated that some types of speech could not be censored by the government even if directly subsidized by the government, and that this "could" include speech that is part of a "traditional" relationship such as that between a "doctor and patient." 111 S. Ct. at 1776. The Court in Rust went on to conclude that the doctor-patient relationship in that case was so limited under the narrow federally funded program at issue, a patient would not be justified in expecting "comprehensive medical advice." Moreover, as the Title X program did not provide "post-conception medical care," a "doctor's silence with regard to abortion" would not "mislead a client into thinking that the doctor [did] not consider abortion an appropriate option for her." Id. The counseling services at issue appear to fall within the scope of traditional relationships that, according to Rust, cannot be controlled by the state, even if the state is the funding source for that relationship. Moreover, unlike the doctor-patient relationship at issue in Rust, when a student seeks counseling on issues of sexual identity, that student is justified in expecting comprehensive and accurate information. To withhold such information either by silence or by offering only state-approved advice would be misleading and possibly harmful. Of course, this is not to say that counselors necessarily will sanction homosexuality as "acceptable" behavior. However, counselors should be able to exercise independent judgment and give accurate advice as to the psychological, medical and legal implications of homosexuality. They should be able to counsel students in a manner that serves the students' best interests and that is neither misleading nor harmful. In our opinion, to require otherwise in the name of an institutionalized position on homosexuality violates the First Amendment.
D.
Summary
In short, section 67-8004 of the initiative restricts curriculum-related speech, some non-curriculum-related speech, and the discussions between school counselors and students. Generally, discretion is allowed as to restrictions of curriculum-related speech, but this initiative exceeds the bounds of that discretion to the extent it allows curriculumrelated discussions concerning ongoing controversies while banning one particular point of view on those issues. A court would conclude that "legitimate pedagogical concerns" are not at the core of these curriculum-related restrictions, and that the restrictions are overly broad and violate the First Amendment. As to the potential non-curriculumrelated censorship at school activities such as faculty and board meetings, the initiative clearly violates the First Amendment rights of school employees, representatives and agents. Finally, the counseling restrictions may also run afoul of the First Amendment. Taken as a whole, section 67-8004 is unconstitutional. IV. SECTION 67-8005 Section 67-8005 addresses public funding as well as access to library materials. This opinion will discuss each of these provisions separately. A. Public Funding The public funding portion of section 67-8005 states: EXPENDITURE OF PUBLIC FUNDS. No agency, department or political subdivision of the State of Idaho shall expend public funds in a manner that has the purpose or effect of promoting, making acceptable, or expressing approval of homosexuality. This section shall not prohibit government from providing positive guidance toward persons experiencing difficulty with sexual identity . . . . This provision restricts both public funding and, potentially, counseling services. The funding restrictions are clearly unconstitutional; the counseling restrictions raise serious constitutional concerns. 1. Funding
The funding restriction prohibits the expenditure of public funds "in a manner" that would have the "purpose or effect of promoting, making acceptable, or expressing approval of homosexuality." The substance of this funding restriction is sweeping and,
again, it is aimed at homosexuality, not just homosexual behavior. For example, government funding of artistic endeavors which treat favorably homosexuality, such as the play La Cage aux Folles, would be prohibited. Likewise, a program addressing the pros as well as the cons of homosexual lifestyles could not be aired on public television without first being censored. Academic freedom at public universities would be curtailed to ensure public funds were not expended in a manner that could have the "effect" of "expressing approval" of homosexuality. This could impact the manner in which homosexual issues are discussed in sociology, psychology and law classes, the type of articles published in university publications, the research conducted at the university level and even the books purchased for university libraries. Nor is the provision's array of consequences necessarily limited to the suppression of ideas. Public health and safety issues could also fall within its scope. By illustration, publicly funded AIDS education programs directed at high-risk groups might have to be tailored to avoid the "effect" of "expressing approval" of homosexuality--which could severely impact the candor and efficacy of such programs. Not only does this section constitute an aggressive effort to suppress controversial ideas, its terms could potentially be construed in a manner that would increase public health and safety risks for that segment of Idaho citizens that it targets. This funding provision is repugnant to First Amendment free expression principles. The landmark case on restricting expenditure of public funds to regulate the content of expression is Perry v. Sindermann, 408 U.S. 593, 597, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972). In that opinion, the U.S. Supreme Court held that a state college could not refuse to rehire a professor solely because of his public criticism of the college administration. In so holding, the Court stated: For at least a quarter-century, this Court has made clear that even though a person has no "right" to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests--especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to "produce a result which [it] could not command directly." Under Perry, the government cannot indirectly burden protected speech through its funding mechanisms.
In Rust, the Court revisited this issue in the context of a federal funding restriction on abortion counseling. The Court drew a distinction between the denial of a benefit to a recipient on account of his speech (which is unconstitutional) and an insistence that public funds be spent for the program purposes for which they are specifically authorized (which the Constitution allows). In so holding, the Court emphasized that it was not addressing a "general law singling out a disfavored group on the basis of speech content," but was instead only reviewing speech which was simply beyond the scope of the narrow federal program being funded. 111 S. Ct. at 1773. Moreover, even within the realm of government-subsidized programs and speech, the Court carved out areas as to which restrictions on the content of government-funded speech are not allowable, including open forums, universities, and traditional relationships such as that between a doctor and patient: This is not to suggest that funding by the government, even when coupled with the freedom of the fund recipients to speak outside the scope of the Government-funded project, is invariably sufficient to justify Government control over the content of expression. For example, this Court has recognized the existence of a government "subsidy" in the form of government-owned property, does not justify the restriction of speech in areas that have "been traditionally open to the public for expressive activity" . . . or have been "expressly dedicated to speech activity" . . . . Similarly, we have recognized that the university is a traditional sphere of free expression so fundamental to the functioning of our society that the Government's ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment . . . . It could be argued by analogy that traditional relationships such as that between doctor and patient should enjoy protection under the First Amendment from Government regulation, even when subsidized by Government. 111 S. Ct. at 1776 (citations omitted). In short, under Rust, the government's interest is in ensuring that the money it raises and appropriates for a particular program is spent to further the purpose of that program. The government does not have a valid interest in simply suppressing speech with which it disagrees, and Rust does not stand for that proposition. Further, there are certain traditional areas such as government-owned open forums, universities and doctorpatient relationships where the content of speech cannot be controlled through funding expenditure restrictions, even if the government is the funding source for those programs
or relationships. In those areas, the historic value placed upon free speech overrides the government's interest in strictly controlling all of its funds. Since Rust, lower courts have had the opportunity to clarify the list of areas that are "traditionally" open to free expression and, therefore, immune from government efforts to attach content-based conditions to the expenditure of subsidies. For example, in Board of Tr. of Leland Stanford Univ. v. Sullivan, 773 F. Supp. 472 (D.D.C. 1991), the court set aside the confidentiality clause in a research contract, stating it unconstitutionally impinged upon freedom of expression in the area of scientific research: The Supreme Court decided in Rust v. Sullivan that when the government grants money to an institution or a program, it may under certain circumstances condition that grant upon curtailment of the program participants' rights under the First Amendment. Defendants' argument in this case is that that decision is applicable to government grants and contracts generally, without substantial limitation. The Rust decision opened the door to government review and suppression of speech and publication in areas which had theretofore been widely thought immune from such intrusion; the government's position in this case, if endorsed by the courts, would take that door off its hinges. That position must be viewed in the context of the fact that few large-scale endeavors are today not supported, directly or indirectly, by government funds--from the health care of senior citizens, to farm subsidies, to the construction of weaponry, to name but a few of the most obvious. Defendants' proposal would, at least potentially, subordinate the free speech rights of the participants in the program receiving such federal monies to the government's wishes. To put it another way, if the Supreme Court decision were to be given the scope and breadth defendants advocate in this case, the result would be an invitation to government censorship wherever public funds flow, and acceptance by the courts of defendants' position would thus present an enormous threat to the First Amendment rights of American citizens and to a free society. 773 F. Supp. at 478 (emphasis added). Likewise, in Finley v. National Endowment for the Arts, 795 F. Supp. 1457 (C.D. Cal. 1992), the court held that as artistic expression, like academic speech, is "at the core of a democratic society's cultural and political vitality," the government is without free reign to impose whatever content restrictions it chooses on funding for the arts:
In both settings, limited public funds are allocated to support expressive activities, and some content-based decisions are unavoidable. Nonetheless, this fact does not permit the government to impose whatever restrictions it pleases on speech in a public university, nor should it provide such license in the arts funding context. 795 F. Supp. at 1475. The public funding restrictions contained in the ICA initiative fall far beyond what Rust and its progeny have held is permissible. It would be apparent to a reviewing court that, unlike the narrow restriction upheld in Rust, these initiative provisions are not a good faith effort to ensure that specifically earmarked funds raised by the state are spent for the program purposes for which they are authorized. Rather, it is an effort to censor a controversial idea in numerous public programs at all levels, regardless of whether the censored speech falls within the scope of the funded programs' purposes. Worse, the restrictions cut severely into areas which the courts have expressly granted heightened free speech protection from government conditions on funding, such as universities, scientific research and the arts. In the words of the U.S. Supreme Court: We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 641-42, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943) (emphasis added). The public funding provision of section 67-8005 violates this First Amendment principle and would be struck down by a reviewing court. 2. Counseling Restrictions
Like the public school section, the public funding section also contains a counseling provision. Here, "positive guidance toward persons experiencing difficulty with sexual identity" is allowed. What constitutes "positive guidance" is not defined. The context of this initiative and its general tenor regarding homosexuality suggest that "positive guidance" on "sexual identity" difficulties means disapproving of homosexuality regardless of the client's needs and interests. As with the school
counseling provision addressed above, if this provision divests counselors and doctors of their independent judgment and intrudes upon the therapist-patient relationship to suppress an unpopular viewpoint, regardless of the health needs of the patient or the medical accuracy of the state-approved view, freedom of speech in a traditionally protected relationship is violated. B. Library Materials
Section 67-8005 of the initiative addresses library materials as well as public funding, stating: This section shall not limit the availability in public libraries of books and materials written for adults which address homosexuality, provided access to such materials is limited to adults and meets local standards as established through the normal library review process. Under the terms of this provision, materials "written for adults" which "address homosexuality" may still be retained in public libraries and adults may have access to them. However, such access is denied to minors. This provision violates the First Amendment of the United States Constitution. As noted above, minors do have limited First Amendment rights, although these rights are not as broad as the rights of adults. As already discussed, substantial restrictions on free expression are allowed in the school classroom to further legitimate pedagogical concerns. Moreover, materials that are "pervasively vulgar," obscene or otherwise age-inappropriate for impressionable young minds may be denied to minors in or out of the classroom. See Ginsberg v. New York, 390 U.S. 629, 88 S. Ct. 1274, 20 L. Ed. 2d 195 (1968). However, despite these limits, minors nevertheless retain some First Amendment rights to receive information and gain knowledge. For example, in Pico, 457 U.S. at 871, the U.S. Supreme Court held that local school boards may not remove books from secondary school libraries simply because they dislike the ideas contained in those books: Our Constitution does not permit the official suppression of ideas. Thus, whether petitioners' removal of books from their school libraries denied respondents their First Amendment rights depends upon the motivation behind petitioners' actions. If petitioners intended by their removal decision to deny respondents access to ideas with which petitioners disagreed, and if this intent was the decisive factor in petitioners' decision, then petitioners have exercised their discretion in violation of the Constitution.
In reaching its holding, the Court emphasized that minors have First Amendment rights to receive information and ideas and to "'remain free to inquire, to study and to evaluate, to gain new maturity and understanding.'" 457 U.S. at 868 (citation omitted). Under this analysis, it is evident that while minors may not have the full panoply of First Amendment rights as do adults, certainly, when it comes to library reading materials, minors cannot be denied access to those materials for no other reason than that the state disagrees with the ideas expressed therein. The provision at issue here severely limits the library books that minors may read. The term "materials written for adults which address homosexuality" is both vague and overbroad. Arguably, it encompasses virtually any reading material not written for children that contains homosexual themes, references, allusions, etc. The list of books and other written materials affected by this provision includes literary works by Socrates, Plato, Thomas Mann, E.M. Forster, James Baldwin, Tennessee Williams and Walt Whitman, to name a few. Likewise, historical biographies on important figures such as Michelangelo, Alexander the Great, Oscar Wilde and King James I would be off-limits. Added to this are the numerous legal, political, scientific and social science writings which may address homosexuality. Moreover, access to widely read magazines generally available at libraries, such as Time or Newsweek, which periodically contain articles discussing homosexual issues would have to be strictly curtailed. The provision's broad restrictions do not appear to be tied to any valid considerations such as the "age-appropriateness" of the banned material. Notably, under the provision, minors are not denied access to adult materials which address heterosexuality. Indeed, under the provision's terms, even explicit age-inappropriate material addressing heterosexuality would not be restricted. The provision is a transparent effort to prevent exposure to ideas with which the initiative's proponents disagree. This sweeping content-based restriction on minors' First Amendment rights to receive information and ideas violates the Constitution and is invalid. Moreover, the library restriction is also unworkable. It is simply unrealistic to assume that librarians are aware of all adult materials which address homosexuality, and a librarian can hardly be expected to go through the library book-by-book, magazine-bymagazine, reading each one and separating any that address the topic. Indeed, a likely consequence of this unreasonable legal duty is that librarians, in an effort to comply with the law, will deny to minors materials to which they should have access even under this provision's restrictive terms. This foreseeable "chilling" effect further exacerbates the constitutional problems at play here. In sum, while there are certainly materials in public libraries minors ought not to read, section 67-8005's sweeping provision does not address that problem in a realistic or
constitutional manner, but instead creates an unworkable scheme which violates the First Amendment rights of minors. V. SECTION 67-8006 Section 67-8006 states: EMPLOYMENT FACTORS. With regard to public employees, no agency, department or political subdivision of the State of Idaho shall forbid generally the consideration of private sexual behaviors as non-job factors, provided that compliance with Title 67, Chapter 80, Idaho Code is maintained, and that such factors do not disrupt the work place. This section, unlike the other sections of the proposed initiative, does not address homosexuality alone, but, rather, addresses all private sexual behavior. This provision certainly clarifies that, in the public employment context at least, discrimination against either homosexuals or heterosexuals based upon their private sexual behavior is not required by the initiative, although it is permitted. The provision does not purport to address such areas as real estate transactions, public accommodations, education and private employment. Thus, the official state policy of section 67-8002 permitting discrimination against homosexuals in these areas remains firmly intact, as does the equal protection abridgment. Section 67-8006 does not cure any of the other constitutional problems discussed in this opinion. VI. THE IDAHO CONSTITUTION The constitutional issues raised throughout this opinion have been analyzed under the United States Constitution. Idaho has its own state constitutional provisions which also protect freedom of speech and equal protection of the law. See art. 1, secs. 2, 9 and 10, Idaho Constitution. Importantly, the Idaho Supreme Court has held that the protections provided by the Idaho Constitution can be given broader scope than those provided under the United States Constitution. See, e.g., State v. Guzman, 122 Idaho 981, 842 P.2d 660 (1992). Thus, the Idaho Supreme Court is not limited by the federal judiciary's interpretation of the United States Constitution. Rather, it can and has relied upon its own authority and responsibility to independently construe and apply state constitutional protections.
The placement of our own state "Bill of Rights" first in the Idaho Constitution reveals how deeply Idahoans cherish both their civil liberties and principles of fairness to others. This initiative, which burdens freedom of expression and equal treatment of all Idaho citizens, clearly violates the principles of the Idaho Constitution. The Idaho Supreme Court is unlikely to stand by and allow a segment of Idaho's citizens to be targeted for state-condoned discrimination and denial of equal access to the political process. Likewise, the court will no doubt find repugnant to free speech guarantees the burdens placed upon the expression of controversial ideas. VII. SECTION 67-8007 Section 67-8007 of the initiative is a severability clause stating that if any section of the "enactment" is "found unconstitutional," the "remaining parts will survive in full force and effect." Generally, courts favor severing unconstitutional provisions in a statute from the remaining portion, if such was the intent of the drafters. However, when the purpose of an act fails, the entire act must also fail. See, e.g., State Water Conservation Board v. Enking, 56 Idaho 722, 58 P.2d 779 (1936). A court is not obligated to rewrite an entire statute when its purpose has been defeated. This initiative could not survive constitutional scrutiny with respect to many, perhaps all, of its substantive portions. The purpose and concept of this initiative is fundamentally flawed, and it is unlikely that a court would invoke the severability clause in an attempt to salvage a portion of it. Indeed, even if a court were so inclined, it is doubtful the initiative could be severed in a constitutionally suitable manner. CONCLUSION The past holds a lesson for the present. In 1879, when U.S. Supreme Court Justice Stephen Field was handling circuit duties in California, he was presented with a San Francisco ordinance requiring that every male entering the county jail have his hair cut to a uniform length of one inch. Despite the innocuous terms in which the ordinance was written, Justice Field understood it to be legislation designed to punish the thenunpopular Chinese by subjecting them to the loss of their traditional "queue." In striking down the seemingly innocent ordinance, Justice Field had this to say: We cannot shut our eyes to matters of public notoriety and general cognizance. When we take our seats on the bench we are not struck with blindness, and forbidden to know as judges what we see as men . . . .
Ho Ah Kow v. Nunan, 12 F. Cas. 546, p. 252 (D. Cal. 1879) (No. 6). In the history of a nation composed of ever-initially unpopular groups, citizens of a homosexual orientation are but the most recent of frequently persecuted persons who look to the law and those who enforce it for fairness and decency. The ICA initiative seeks to corrupt that law, using it as an instrument of division and discrimination rather than for equal protection and equal rights. We live in a country in which our highest court has unequivocally held that some objectives such as "'a bare . . . desire to harm a politically unpopular group' . . . are not legitimate state interests." City of Cleburne, 473 U.S. at 447 (citation omitted). Further, that Court has stated: The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials . . . . One's right to life, liberty, and property, to free speech, a free press, freedom of worship and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 638, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943) (emphasis added). Freedom of speech, equal protection, fair access to the political process--these are all basic principles upon which our society rests. They are the principles which allow our society to flourish. This initiative, while purporting to deny special or unusual protection to one group, in fact seeks to deprive this group of the full enjoyment of these essential principles. The Idaho Supreme Court will not permit this to happen. It is our opinion that even if this initiative marking a politically unpopular group of Idahoans for abridgment of their core constitutional rights succeeds at the ballot, it will never be allowed to go into effect. AUTHORITIES CONSIDERED 1. United States Constitution: First Amendment. Fourteenth Amendment.
2.
Idaho Constitution: Art. 1, sec. 2. Art. 1, sec. 9. Art. 1, sec. 10.
3.
Idaho Code: 18-6605. 18-7301. 18-7902. 18-7903. 32-202. 67-2402. 67-5909.
4.
U.S. Supreme Court Cases: Board of Education v. Pico, 457 U.S. 853, 102 S. Ct. 2799, 73 L. Ed. 2d 435 (1982). Bethel School District No. 403 v. Fraser, 478 U.S. 675, 106 S. Ct. 3159, 92 L. Ed. 2d 549 (1986). City of Cleburne, Texas v. Cleburne Living Center, Inc., 473 U.S. 432, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985). City of Madison v. Wis. Emp. Rel. Com'n, 429 U.S. 167, 97 S. Ct. 421, 50 L. Ed. 2d 376 (1976). Ginsberg v. New York, 390 U.S. 629, 88 S. Ct. 1274, 20 L. Ed. 2d 195 (1968). Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592 (1988). Hunter v. Erickson, 393 U.S. 385, 89 S. Ct. 557, 21 L. Ed. 2d 616 (1969). Keyishian v. Board of Regents of U. of St. of N.Y., 385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967).
Palmore v. Sidoti, 466 U.S. 429, 104 S. Ct. 1879, 80 L. Ed. 2d 421 (1984). Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972). Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968). Reitman v. Mulkey, 387 U.S. 369, 87 S. Ct. 1627, 18 L. Ed. 2d 830 (1967). Rust v. Sullivan, ___ U.S. ___, 111 S. Ct. 1759, 114 L. Ed. 2d 233 (1991). Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969). Washington v. Seattle School District No. 1, 458 U.S. 457, 102 S. Ct. 3187, 73 L. Ed. 2d 896 (1982). West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943). 5. Idaho Cases: Luker v. Curtis, 64 Idaho 703, 136 P.2d 978 (1943). State v. Goodrick, 102 Idaho 811, 641 P.2d 998 (1982). State v. Guzman, 122 Idaho 981, 842 P.2d 660 (1992). State Water Conservation Board v. Enking, 56 Idaho 722, 58 P.2d 779 (1936). 6. Other Cases: Board of Tr. of Leland Stanford Univ. v. Sullivan, 773 F. Supp. 472 (D.D.C. 1991). Citizens for Responsible Behavior v. Superior Court, 2 Cal. Rptr. 2d 648 (Cal. App. 4 Dist. 1991). Evans v. Romer, 854 P.2d 1270 (Colo. 1993).
Finley v. National Endowment for the Arts, 795 F. Supp. 1457 (C.D. Cal. 1992). Ho Ah Kow v. Nunan, 12 F. Cas. 546, p. 252 (D. Cal. 1879) (No. 6). Levin v. Harleston, 966 F.2d 85 (2d Cir. 1992). National Gay Task Force v. Board of Education of the City of Oklahoma, 729 F.2d 1270 (10th Cir. 1984), aff'd, 470 U.S. 903, 105 S. Ct. 1858, 84 L. Ed. 2d 776 (1985). Searcey v. Harris, 888 F.2d 1314 (11th Cir. 1989). Watkins v. U.S. Army, 875 F.2d 699 (9th Cir. 1989). DATED this 3rd day of November, 1993. LARRY ECHOHAWK Attorney General Analysis by: MARGARET HUGHES Deputy Attorney General
EXHIBIT H

OFFICIAL BALLOT PROPOSED BY INITIATIVE PETITIONS _ _ _ _ _ _ _ COUNTY, IDAHO GENERAL ELECTION - NOVEMBER 8, 1994
2226
PRECINCT NAME
-------------------------------------------------------------- ------------------------------------
OFFICIAL BALLOT
PROPOSED BY INITIATIVE PETITIONS _ _ _ _ COUNTY, IDAHO GENERAL ELECTION- NOVEMBER 8, 1994
INSTRUCTIONS TO VOTER: To vote on the following, mark a cross (X) in the square at the right of "Yes" or "No."
PROPOSITION ONE
AN ACT ESTABLISHING STATE POLICIES REGARDING HOMOSEXUALITY. INITIATIVE RELATING TO HOMOSEXUALITY AND THE STATE'S AUTHORITY TO AFFORD HOMOSEXUALS MINORITY STATUS; ENACTING A NEW CHAPTER, CHAP. 80, TITLE 67, IDAHO CODE: PROVIDING THAT NO STATE AGENCY, DEPARTMENT OR POLITICAL SUBDIVISION SHALL GRANT MINORITY STATUS TO PERSONS WHO ENGAGE IN HOMOSEXUAL BEHAVIOR; PROVIDING THAT SAME-SEX MARRIAGES AND DOMESTIC PARTNERSHIPS SHALL NOT BE LEGALLY RECOGNIZED; PROVIDING THAT ELEMENTARY AND SECONDARY SCHOOL EDUCATORS SHALL NOT DISCUSS HOMOSEXUALITY AS ACCEPTABLE BEHAVIOR; PROVIDING THAT NO STATE FUNDS SHALL BE EXPENDED IN A MANNER THAT HAS THE EFFECT OF ACCEPTING OR APPROVING HOMOSEXUALITY; LIMITING TO ADULTS ACCESS TO LIBRARY MATERIALS WHICH ADDRESS HOMOSEXUALITY; PROVIDING THAT PRIVATE SEXUAL PRACTICES MAY BE CONSIDERED NON-JOB FACTORS IN PUBLIC EMPLOYMENT; AND PROVIDING A SEVERABILITY CLAUSE.
PROPOSITION TWO
AN INITIATIVE ESTABLISHING TERM LIMITS FOR ELECTED FEDERAL. STATE, COUNTY, MUNICIPAL AND SCHOOL DISTRICT OFFICIALS. INITIATIVE RELATING TO THE NUMBER OF YEARS AN ELECTED OFFICIAL MAY SERVE: PROVIDING A NEW SECTION TO THE IDAHO CODE, 34-907, LIMITING THE NUMBER OF YEARS A PERSON MAY SERVE IN THE FOLLOWING ELECTED OFFICES BY RESTRICTING ELIGIBILITY TO APPEAR ON THE BALLOT AFl'ER SERVING A PRESCRIBED NUMBER OF YEARS: UNITED STATES HOUSE OF REPRESENTATIVES, UNITED STATES SENATE, STATE EXECUTIVE OFFICES, STATE LEGISLATURE, COUNTY ELECTED OFFICES; PROVIDING A NEW SECTION TO THE IDAHO CODE, 50-478, RESTRICTING MUNICIPAL OFFICERS' ELIGIBILITY TO APPEAR ON THE BALLOT AFTER SERVING EIGHT YEARS IN ONE POSITION; PROVIDING A NEW SECTION TO THE IDAHO CODE, 33-443, RESTRICTING SCHOOL DISTRICT TRUSTEES' ELIGIBILITY TO APPEAR ON THE BALLOT AFTER SERVING SIX YEARS IN ONE DISTRICT; PROVIDING THAT ANY PERSON MAY STAND FOR ELECTION AS A WRITE-IN CANDIDATE; PROVIDING AN EFFECTIVE DATE OF JANUARY 1, 1995; PROVIDING THAT SERVICE PRIOR TO THAT DATE SHALL NOT BE COUNTED FOR PURPOSES OF BALLOT ELIGIBILITY AND PROVIDING A SEVERABILITY CLAUSE.
Shall the above-entitled measure proposed by Proposition One be approved?
YES
D NoD
Shall the above-entitled measure proposed by Proposition Two be approved?
YESD
NoD

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Case 1:13-cv-00482-CWD Document 60 Filed 02/18/14 Page 1 of 4

Case 1:13-cv-00482-CWD Document 60 Filed 02/18/14 Page 2 of 4

Case 1:13-cv-00482-CWD Document 60 Filed 02/18/14 Page 3 of 4

_______________/s/_______________________ Shannon P. Minter (pro hac vice) Attorney for Plaintiffs

Case 1:13-cv-00482-CWD Document 60 Filed 02/18/14 Page 4 of 4

______/s/_________ Shannon P. Minter

Case 1:13-cv-00482-CWD Document 60-1 Filed 02/18/14 Page 1 of 5

Case 1:13-cv-00482-CWD Document 60-1 Filed 02/18/14 Page 2 of 5

HOUSE JUDICIARY, RULES & ADMINISTRATION COMMITTEE

LEGI LE G SL GI SLAT AT TIV IVE E IN INTE TENT TE NT S SER ERVI ER VI ICE

(80 800) 0) 666 66-1 191 917 7

Case 1:13-cv-00482-CWD Document 60-1 Filed 02/18/14 Page 3 of 5

It was moved by Representative King, seconded by Representative Jones, to send HB

Case 1:13-cv-00482-CWD Document 60-1 Filed 02/18/14 Page 4 of 5

LEGISLATIVE INTENT SERVICE

Case 1:13-cv-00482-CWD Document 60-1 Filed 02/18/14 Page 5 of 5

It was moved by Representative Sali, seconded by Representative Tippets to .end HB

658 to the floor with. 00 Pa recommendation. A discussion followed during which

motion. Motion canied.

Celia Gould, Chairman

LEGI LE G SLAT GI SL LAT A IV IVE E IN INTE TENT TE NT T SER E VI VICE CE

(80 800) 0) 666-191 191 917 7

Case 1:13-cv-00482-CWD Document 60-2 Filed 02/18/14 Page 1 of 13

Case 1:13-cv-00482-CWD Document 60-2 Filed 02/18/14 Page 2 of 13

SENATE STATE AFFAIRS COMMITTEE

DATE: TIME: PLACE: MEMBERS:

ABSENT/ EXCUSED: GUESTS: CONVENE:

Case 1:13-cv-00482-CWD Document 60-2 Filed 02/18/14 Page 3 of 13

LEGISLATIVE INTENT SERVICE

Case 1:13-cv-00482-CWD Document 60-2 Filed 02/18/14 Page 4 of 13

LEGISLATIVE INTENT SERVICE

Case 1:13-cv-00482-CWD Document 60-2 Filed 02/18/14 Page 5 of 13

Case 1:13-cv-00482-CWD Document 60-2 Filed 02/18/14 Page 6 of 13

SENATE STATE AFFAIRS January 28, 2005 - Minutes - Page 5

LEGISLATIVE INTENT SERVICE

Case 1:13-cv-00482-CWD Document 60-2 Filed 02/18/14 Page 7 of 13

SENATE STATE AFFAIRS January 28, 2005 - Minutes - Page 6

LEGISLATIVE INTENT SERVICE

Case 1:13-cv-00482-CWD Document 60-2 Filed 02/18/14 Page 8 of 13

LEGISLATIVE INTENT SERVICE

Case 1:13-cv-00482-CWD Document 60-2 Filed 02/18/14 Page 9 of 13

LEGISLATIVE INTENT SERVICE

Case 1:13-cv-00482-CWD Document 60-2 Filed 02/18/14 Page 10 of 13

SENATE STATE AFFAIRS January 28, 2005 - Minutes - Page 9

LEGISLATIVE INTENT SERVICE

Case 1:13-cv-00482-CWD Document 60-2 Filed 02/18/14 Page 11 of 13

LEGISLATIVE INTENT SERVICE

Case 1:13-cv-00482-CWD Document 60-2 Filed 02/18/14 Page 12 of 13

SENATE STATE AFFAIRS January 28, 2005 - Minutes - Page 11

LEGISLATIVE INTENT SERVICE

Case 1:13-cv-00482-CWD Document 60-2 Filed 02/18/14 Page 13 of 13

Senator Don Burtenshaw Chairman

Lisa Lalliss-Skogsberg Secretary

SENATE STATE AFFAIRS January 28, 2005 - Minutes - Page 12

LEGISLATIVE INTENT SERVICE

Case 1:13-cv-00482-CWD Document 60-3 Filed 02/18/14 Page 1 of 9

Case 1:13-cv-00482-CWD Document 60-3 Filed 02/18/14 Page 2 of 9

HOUSE STATE AFFAIRS COMMITTEE

DATE: TIME: PLACE: MEMBERS:

ABSENTI EXCUSED: GUESTS:

L GI LE G SL LAT A IV VE IN I TE TENT NT SER RVI V CE

Case 1:13-cv-00482-CWD Document 60-3 Filed 02/18/14 Page 3 of 9

A brief summary of the testimony given at the hearing on HJR2 is presented

LEGISLATIVE E INTENT SERVICE

_/s/_________ Shannon P. Minter (pro hac vice) Attorney for Plaintiffs

/s/___ Shannon P. Minter