In the space of a week, the gay marriage bans in both Idaho and Oregon were struck down by separate federal district courts.
Oregon has decided not to fight it. Idaho intends, at present, to appeal all the way to the Supreme Court, where it will get in line behind a few other cases dealing with the same issue -- some from states, some from individuals.
Politicians are now accusing the courts of costing the state of Idaho millions of dollars in legal fees, but in truth, from the day the legislature decided this ban was absolutely necessary, they had to know it was going to wind up in court and should have set aside the money then for a court fight. They've acted surprised that anyone would dare challenge their law.
In the last ten years, about a third of the states in the nation have decided to allow gay marriage. Roughly an equal number have passed bans on the concept, and it is those that are falling before the courts, being struck down as unconstitutional. One of the issues that has proved fatal, so far, to gay marriage bans are provisions, such as the one in Idaho, that refuses to recognize gay marriages from other states.
On one side of a line between two states, a couple is married. Take one step and they're not only not married, but probably in violation of a whole bunch of state laws for which they could be arrested.
In states that allow it, partners have all the legal rights (and responsibilities) that spouses enjoy in all states, including rights of inheritance, the ability to visit critically ill partners (the "only family members" restrictions of hospitals), and the ability to file joint tax returns. In Idaho, a couple married in another state can file joint federal returns, but not a joint state tax return. It's the little things, like that, which make the difference and are usually the points of contention when something gets to the court.
In some ways, the cases before the courts now rely on Love v. Virginia, a landmark civil rights case. Virginia had a law prohibiting blacks and whites from marrying or having sex together. Some people thought the very idea of that was disgusting. The Loves had been married in Washington, D.C., but made their home in Virginia, which didn't recognize their marriage and subsequently arrested them.
The Supreme Court, in striking down the Virginia law, ruled that marriage was a "basic civil right" and the statute violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.
Those same arguments are being used all across the country today to strike down anti-gay laws. The courts don't see this as a religious matter, as some do (a demographic that is decreasing every year and now is in the minority). The courts see it as a matter of equal justice under law and an expansion of civil rights to include those whose sexual orientation is different from the mainstream population.
Idaho is going to spend millions of our tax dollars fighting this. You may or may not think it is a valid use for that money. But in the end, the state is inevitably going to wind up on the wrong side of history.
This genie has been let out of the bottle and cannot be put back in. The state can fight this and try and delay the inevitable. The Roberts Court may even find a way to back them up for a while on narrow technical grounds. But in the end, this is a trend that is not going to be reversed. All the treasure we spend now on lawyers is ultimately going to be wasted.
This battle is like the Alamo. In the end, no matter how spirited the fight, its defenders are doomed.
-- Kelly Everitt