While known for its potatoes and Napoleon Dynamite, the Gem State is also as red as they come concerning politics. The composition of the state legislature is overwhelming Republican, and the state constitution has marriage defined as a union between one man and one woman. The problem is that section of state law has been struck down with the recent Obergefell decision from the Supreme Court, which said there’s a constitutional right to gay marriage.
Nevertheless, some traditional marriage advocates say the provision should remain since it’s a “symbolic and historic piece of language.” Yet, it’s now completely irrelevant, so why keep something on the books if it won’t be enforced? Yet, the process to remove the language, which was adopted in a 2006 referendum won’t be easy (via AP):
…removing the language will likely be an uphill battle. Amending the Idaho Constitution first requires approval from the Republican-dominated Legislature. The proposal must then win a simple majority in a voter referendum -a tough task for even lesser politically-charged initiatives.
Idaho is one of 30 states that amended their constitutions to ban gay marriage that have not yet take steps to repeal their amendments, even though they have been rendered unenforceable by the Supreme Court’s gay-marriage decision.
Idaho’s gay marriage ban has been enshrined in the state constitution since 2006 after winning 63 percent of the vote.
Gay rights supporters argue removal is the natural next step to comply with the Supreme Court’s ruling. But Republican lawmakers and gay marriage opponents counter that there is no legal need to change the constitution.
“Idaho should not remove that language,” said Julie Lynde, executive director of Cornerstone Family Council. “There is no reason to obliterate traditional marriage. It’s a symbolic and historic piece of language.”
Furthermore, when Idaho lawmakers gather in Boise at the beginning of 2016, they’ll be kicking off the legislative session in an election year. Republican lawmakers will be less likely to cast a vote that could be used against them by an opponent.
The article also noted that since the Republican leadership in the state legislature knows their constitutional amendment defining marriage is now null and void, there’s no reason to expend political capital on removing it; this takes us back to election year politics that was previously mentioned.
Yet, Idaho’s American Civil Liberties Union chapter said confusion could occur with letting this amendment remain idle on the books:
For example, in 2013, a sheriff in Kootenai County declared that the Boy Scouts of America promoted a lifestyle that violated the state’s sodomy law. [Leo] Morales [acting executive director of ACLU-Idaho] said the sheriff incorrectly interpreted an unenforceable state law because it was still on the books, even though the Supreme Court banned laws that attempted to regulate or criminalize sexual activity among consenting adults in 2003.
At the same time, AP noted that the state has removed obsolete constitutional language before, notably the 1890 provision that stripped voting rights to anyone who promoted polygamy … in 1982.
So, for the folks in Idaho elated by the Obergefell decision, you’re probably going to have to wait as long as the social conservatives who want to re-argue gay marriage bans before the Supreme Court (again) until the language is removed from the state constitution; in other words, it could take a very, very long time.