So I sit down to finish a piece on Michael Sam (it’s going to be a pretty gay week), and the twittersvere is blowing up with great news out of Idaho!
U.S. Chief Magistrate Judge Candy Wagahoff Dale held that Idaho’s ban on same-sex marriage is unconstitutional. And as we’ve already seen this week, state law after state law continues to fall.
Here are my takeaways (which come in handy for a 57 page opinion!):
- The will of the majority can’t trump the rights of a minority: Right off the bat, Dale frames her opinion in a way that, to me, nails the crux of the argument over these constitutional amendments: “whether the will of the majority, based as it often is on sincere belief and democratic consensus, may trump the right of the minority.” You see many comments about “activists judges” being able to just “throw out the will of millions of people.” What those commenters don’t realize is that no matter how large the majority, the laws created can’t trample a person’s fundamental rights, in this case the right to marry. The point of our check and balance system is to make sure that doesn’t happen. Dale concludes, “a state’s broad authority to regulate matters of state concern does not include the power to violate an individual’s protected constitutional right.” I wonder whether we would have this same argument if we were talking about a different right (freedom of speech, right to bear arms, etc.).
- Plaintiffs provide multiple angles of consideration: There are four plaintiff couples in this case. Two that are legally married in other states and wish to have Idaho recognize their marriage, and two others that wish to marry in Idaho. The scenario provides an interesting contrast of rights. I found particularly interesting Dale’s comments that the state recognizing some marriages from out of state but specifically not same-sex couples creates a two-tiered system for out-of-state marriages. I’ve said from the beginning of my blog that this selective recognition is unfair and should be remedied. It looks like we are on our way.
- These laws do not withstand any applicable level of scrutiny: We see the same arguments in all of the recent cases as to why these laws are needed: they promote child welfare, preserve state’s rights, and serve religious liberties. All of these arguments have failed before. This case also included an argument that the law promotes child welfare by spending the state’s limited resources on “couples with biological creative capacity.” (I can’t imagine even making that argument with a straight face.) Judge after judge has concluded that these arguments hold no water and can’t withstand even the minimum level of scrutiny, let alone strict scrutiny, which Dale used as the standard of review in this case. Dale says, “the message of these cases is unmistakable – all individuals have the fundamental right to marry.” Under this type of analysis, it will be hard for any state to win this type of case.
- Marriage begins 9:00 am on Friday: Dale said the plaintiffs in this case are “entitled to extraordinary remedies because of their extraordinary injuries.” She permanently enjoined the state from not recognizing same-sex marriage. The injunction takes effect May 16, 2014 at 9:00am.
- Supreme Court is inevitable?: Idaho Governor Butch Otter mentioned in a quote on NPR.org that he anticipates this issue will end up in the Supreme Court. He’s likely right with the flood of cases overturning these constitutional amendments and the push back from the states. On the other hand, the Court could also decline to hear any appeals, if the consensus of all the federal courts is that these laws are unconstitutional. Dale points out that since Windsor, no federal court has upheld same-sex marriage bans (and cites every case decided thus far). That would be a very interesting twist.
Another great and very favorable opinion on marriage equality. I encourage you to read the entire thing. It’s long, but Dale does an amazing job laying out the legal analysis and giving detailed background on the basis of her opinion.