Would a defense-of-marriage amendment to the Idaho Constitution actually do anything new, given that Idaho already banned same-sex marriage by statute?

Plain-English summary

In February 2006, Attorney General Lawrence Wasden answered Idaho House Majority Leader Lawerence Denney's questions about a proposed state-constitutional amendment limiting marriage to a man and a woman. Idaho already had statutes (Idaho Code §§ 32-201 and 32-209) restricting marriage that way, so the legislature wanted to know what an amendment would actually change.

The opinion's core conclusions: an amendment was probably not strictly necessary because the Idaho Supreme Court would most likely reject a state-constitutional challenge to the existing statutes, but an amendment would foreclose such a challenge entirely and reinforce Idaho's public policy. On the federal side, the AG predicted the U.S. Supreme Court would ultimately uphold marriage laws limiting marriage to opposite-sex couples under the Fourteenth Amendment, while noting "no guarantees given wide discrepancies in the current case law."

Wasden also addressed five collateral concerns the legislature raised. He concluded an amendment would not, by itself, invalidate contracts or powers of attorney between same-sex partners, would not interfere with the right to leave property by will, and need not affect cohabitation, hospital visitation rights, or medical-decision authority. He flagged that broader amendment language reaching beyond marriage to bar recognition of "other domestic relationships" carries higher constitutional risk than narrower language.

Idaho voters approved the marriage amendment in November 2006 (HJR 2, codified as Idaho Const. art. III, § 28).

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The AG's predictive analysis of federal constitutional law has been largely overtaken by subsequent U.S. Supreme Court decisions. United States v. Windsor, 570 U.S. 744 (2013), struck down section 3 of DOMA. Obergefell v. Hodges, 576 U.S. 644 (2015), held that the Fourteenth Amendment requires states to license and recognize same-sex marriages. Idaho's marriage amendment and the underlying statutes are therefore unenforceable as to same-sex couples, though they remain in the books unless and until repealed. The opinion's discussion of Idaho contract law, powers of attorney, and inheritance rights tracked Idaho law as it stood in 2006; verify current Idaho Code before relying on any specific rule.

Common questions

Q: Did Idaho law prohibit same-sex marriage before this opinion?
A: Yes. Idaho Code § 32-201 defined marriage as a "personal relation arising out of a civil contract between a man and a woman," and Idaho Code § 32-209 declined to recognize same-sex marriages contracted in other states.

Q: What was the legal status of same-sex marriage nationally in 2006?
A: Highly unsettled. Massachusetts had begun licensing same-sex marriages following Goodridge (2003). Hawaii (Baehr, 1993) and Vermont (Baker, 1999) had earlier struck down opposite-sex-only marriage laws under their state constitutions. Federal courts, by contrast, had largely upheld DOMA and state marriage laws. The U.S. Supreme Court had not yet ruled directly on the question.

Q: Why did the AG say an amendment was "not strictly necessary"?
A: Because Idaho's existing statutes already barred same-sex marriage and out-of-state recognition, and because the Idaho Supreme Court would probably uphold those statutes against a state-constitutional challenge. The amendment's added value, according to the AG, was foreclosing the possibility of any such state-constitutional challenge succeeding.

Q: What did the AG say about Full Faith and Credit?
A: He concluded that the Full Faith and Credit Clause did not require Idaho to recognize same-sex marriages formed in other states. The Clause has a long-recognized "public policy" exception, and DOMA expressly authorized states to refuse recognition. He cited several federal and state decisions (Wilson v. Ake, In re Kandu, Hennefeld, Burns v. Burns) supporting that conclusion.

Q: Did the opinion address whether an amendment would cancel contracts or powers of attorney between same-sex partners?
A: It addressed both, and concluded a properly drafted amendment "need not" do either. Contracts with third parties stand on their own; same-sex couples' contracts with each other would more likely be upheld under contract principles than struck down as creating an unrecognized legal union. Powers of attorney are not generally dependent on marital status.

Q: What about broader amendment language barring "other domestic relationships"?
A: The AG flagged this as the higher-risk drafting choice. Amendments that reach beyond defining marriage to also prohibit civil unions, domestic partnerships, or other recognition of relationships face additional federal constitutional hurdles. The narrower the amendment, the lower the legal risk.

Q: Is the opinion still good law?
A: Its description of Idaho law as it existed in 2006 is historically accurate, but its predictive analysis of federal constitutional law has been overtaken. After Windsor (2013) and Obergefell (2015), states must license and recognize same-sex marriages under the Fourteenth Amendment. Idaho's marriage amendment and statutes are unenforceable to the extent they conflict with those rulings.

Background and statutory framework

The opinion arose during the wave of state defense-of-marriage amendments that followed Goodridge (Mass. 2003). Sixteen state constitutional amendments had been enacted by early 2006, in response to court decisions in Hawaii, Vermont, and Massachusetts striking down opposite-sex-only marriage statutes under state constitutions. Congress had enacted the federal Defense of Marriage Act in 1996, defining marriage for federal purposes as opposite-sex only and authorizing states to refuse recognition of out-of-state same-sex marriages.

Idaho's marriage statutes, codified at Idaho Code §§ 32-201 and 32-209, already restricted marriage to opposite-sex couples and refused recognition of same-sex marriages from other states. The proposed amendment would elevate that restriction to the constitutional level. The legislature asked the AG to analyze five questions about what such an amendment would do that the existing statutes did not, and what collateral effects on contracts, wills, and family relationships it might have.

The AG's framework: under Loving v. Virginia (1967), marriage is a fundamental right protected by the Fourteenth Amendment, but no court had yet held that this fundamental right extends to same-sex couples. Baker v. Nelson (1972) was a U.S. Supreme Court summary affirmance dismissing a federal challenge to Minnesota's opposite-sex marriage law "for want of a substantial federal question," and was treated by some lower courts as binding precedent. State-constitutional challenges had succeeded in some states under more protective state-constitutional provisions but had failed in many others.

Citations and references

Statutes and constitutional provisions:
- Idaho Code §§ 32-201, 32-209 (marriage statutes)
- Idaho Const. art. I, §§ 1-2 (due process and equal protection)
- U.S. Const. art. IV, § 1 (Full Faith and Credit Clause)
- U.S. Const. amend. XIV (Due Process and Equal Protection)
- 1 U.S.C. § 7 (DOMA marriage definition)
- 28 U.S.C. § 1738C (DOMA, state recognition of out-of-state same-sex marriages)

Key cases discussed:
- Loving v. Commonwealth of Virginia, 388 U.S. 1 (1967)
- Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed 409 U.S. 810 (1972)
- Lawrence v. Texas, 539 U.S. 558 (2003)
- Romer v. Evans, 517 U.S. 620 (1996)
- Baehr v. Lewin, 852 P.2d 44 (Haw. 1993)
- Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003)
- Baker v. State of Vermont, 744 A.2d 864 (Vt. 1999)
- Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005)
- In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004)
- Garcia v. State Tax Commission, 136 Idaho 610 (2002)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/Opinion06-1.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

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 opinion 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?

2. Will a defense of marriage amendment directly conflict with any provisions of the United States Constitution?

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?

4. 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?

5. 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?

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.

2. 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 (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.

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.

4. 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.

5. 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.

[The opinion continues with extensive analysis of federal and state case law, including discussion of Loving v. Virginia, Baker v. Nelson, Lawrence v. Texas, Romer v. Evans, Baehr v. Lewin, Goodridge v. Dept. of Public Health, and Baker v. State of Vermont; analysis of the Full Faith and Credit Clause and DOMA; and a section-by-section analysis of how a marriage amendment might or might not affect Idaho contract, will, hospital-visitation, and medical-decision law. The full text runs approximately 30 pages and is available in the linked PDF.]

DATED this 8th day of February, 2006.

LAWRENCE G. WASDEN
Attorney General

Analysis by:
Brian Kane
Deputy Attorney General