Idahoans to Vote November 7 on HJR 2, the

Anti-Gay Amendment to the Idaho State Constitution 
 

HOUSE JOINT RESOLUTION NO. 2

                                                                                                            

      The question to be submitted to the electors of the State of Idaho at the next general election shall be as follows: 
 

"Shall Article III, of the Constitution of the State of Idaho be amended by the addition of a new Section 28, to provide that a marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state?".

                                                                         
 

OFFICIAL STATEMENT OF PURPOSE 
 

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 prohibit 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. 
 

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The ACLU of Idaho’s Analysis of HJR 2:

      Backers of the proposed amendment and some of the media have referred to this ballot measure as the “Gay Marriage Amendment.”  This title is deceptive for at least two reasons.

      First, the amendment’s real focus is not marriage.  If it were, the proposed amendment simply could have provided: “No marriage other than one between a man and a woman shall be recognized in the State of Idaho”.  Instead, the proposed amendment targets “domestic legal unions,” an ambiguous term that is not defined and will likely be the subject of years of costly and contentious litigation if the proposed amendment is passed.  The sponsors’ Statement of Purpose indicates that the proposed amendment is intended to prohibit the state from recognizing “civil unions, domestic partnerships, or any other relationship that attempts to approximate marriage, no matter how demonstrated.”  Clearly, then, the proposal amendment seeks to discourage all types of committed relationships other than “marriage between a man and a woman” by denying them any of the fundamental relationship protections available to male/female married couples.

      Second, the broad scope of the proposed amendment is not limited to same gender couples, as its supporters would have the public believe.  Since it would prohibit all “domestic legal unions” other than a marriage between a man and a woman, the proposed amendment would also deny basic relationship protections to all unmarried male/female couples. 
 

      By preventing relationship recognition for all unmarried couples, the amendment could  deny committed partners many fair and reasonable benefits such as:  
 

      -   Access to spousal Social Security benefits upon the death of a partner 
 

      -   Access to bereavement leave and right to burial determination after the death of a partner 
 

      -   The right to uncontested inheritance of shared assets upon one partner’s death 
 

      -   Access to automatic “next of kin” status for emergency medical decisions 
 

      -   Access to automatic “next of kin” status for hospital visitation 

      In addition to the vagueness of the proposed amendment in failing to define “domestic legal unions,” the measure is also vague as to whether it affects private entities, such as corporate employers, as well as the State and local governmental entities.  Since the broad language of the proposed amendment declares that “a marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state,” the proposed amendment, if passed, could possibly be construed to prohibit employees of private corporate employers who are currently extending health and other benefits to domestic partners from access to Idaho courts to enforce such private-sector domestic partnership benefits.  While the ACLU would strongly oppose such an interpretation, it is likely that the vagueness of the proposed amendment would spawn litigation over this issue.

      Finally, there is no need of a Constitutional amendment to “protect marriage” as between a man and a woman” because Idaho Law already does so.  Idaho Code Section 52-202, the Defense of Marriage Act (“DOMA”) already limits the right to consent to marry in Idaho to male-female relationships.

      Seen for what it truly is, the proposed amendment is a mean-spirited attempt by its supporters to use the power of the State Constitution to impose their moral values on the rest of the citizenry, making legal outcasts of all committed couples who, for whatever reasons, are unable or unwilling to marry.  Allowing the Idaho Constitution to be misused and subverted in this manner, to deprive rather than to protect the rights of its citizens, would set a grave and dangerous precedent.  We need to ask ourselves: if this pernicious amendment passes, who’s next?