What did Idaho's AG say about a 2004 ballot initiative that would have required Idaho's Legislature to call for a federal constitutional convention to define marriage?

Plain-English summary

This is the AG's review (under Idaho Code § 34-1809) of a ballot initiative filed March 12, 2004, by Vivian L. Wayment. The proposal would have required the Idaho Legislature, in every session before passing any new legislation, to call for a federal constitutional convention until Congress proposed a marriage amendment to the U.S. Constitution either defining marriage as between a man and a woman or guaranteeing each state's right to define marriage for its residents.

The AG raised several concerns:

Form. The proposal contained no title, chapter, or other indication of where in the Idaho Code it would be placed. That is problematic for organizational reasons.

Mandate, not law. The AG observed the proposal "does not appear to be as much of a law as it is a mandate that the legislature act." It would require the Legislature to call for a constitutional convention before passing any new legislation.

Limits on the Legislature's plenary authority. Idaho Const. art. III, §§ 9-10 grants the Legislature plenary authority over the setting of its rules of order and procedure. An initiative cannot strip the Legislature of constitutionally granted authority. Laws passed by initiative are on equal footing with legislation enacted by the Legislature (Westerberg v. Andrus, 114 Idaho 401 (1988)) and so cannot bind future legislatures. The AG concluded that "an initiative cannot restrict the actions of future legislatures absent a constitutional mandate."

The AG declined to address the policy merits of a federal marriage amendment, since the proposal was not actually proposing one but was instead trying to compel the Legislature to call for a convention.

This 2004 review is a useful contrast to the AG's later (2006) Opinion 06-1, which addressed a proposed Idaho state-constitutional marriage amendment from a different angle. The 2006 amendment was approved by Idaho voters; the 2004 convention-call initiative did not qualify for the ballot.

Currency note

This opinion was issued in 2004. 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 federal landscape on same-sex marriage has shifted dramatically since 2004. 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. The constitutional analysis of an initiative-imposed mandate on the Legislature reflects long-standing Idaho doctrine and remains generally applicable.

Common questions

Q: Did this initiative make the ballot?
A: This certificate addressed only the legal form of the proposal. The petition did not qualify for the ballot.

Q: Why couldn't an initiative require the Legislature to call for a constitutional convention?
A: Because Idaho Const. art. III, §§ 9-10 give the Legislature plenary authority over its own rules of order and procedure. An initiative passes a statute, and a statute cannot strip a constitutional body of constitutional authority. The AG cited Westerberg v. Andrus, 114 Idaho 401 (1988), for the principle that initiative legislation is on equal footing with bicameral-passed legislation, and so initiative legislation cannot constrain the Legislature in ways that ordinary legislation could not.

Q: What is an Article V constitutional convention?
A: U.S. Const. art. V provides two paths to amend the federal Constitution. The first (the only one used so far) is for Congress to propose an amendment by two-thirds vote of each house, with ratification by three-fourths of the states. The second is for two-thirds of the states to call for a constitutional convention, which then proposes amendments for ratification. The Article V convention path has never been used.

Q: How does this initiative differ from a state marriage amendment?
A: A state marriage amendment changes the Idaho Constitution. This 2004 initiative would not have proposed any change to either the Idaho or U.S. Constitution; it would have required the Legislature to call for a federal Article V convention to propose an amendment. Idaho voters did approve a state marriage amendment in November 2006 (HJR 2, codified as Idaho Const. art. III, § 28), which is a separate proposal.

Background and statutory framework

Idaho's initiative power (Idaho Const. art. III, § 1) lets voters propose statutes; Idaho Code § 34-1809 requires the AG to issue a Certificate of Review. The Idaho Constitution gives the Legislature plenary authority over its own rules of order and procedure (Idaho Const. art. III, §§ 9-10). The U.S. Constitution provides for amendment either by Congressional proposal or by Article V convention (U.S. Const. art. V).

In 2004, sixteen state constitutional marriage amendments had been adopted. The wave was a response to Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003), which struck down Massachusetts's opposite-sex-only marriage statute under the Massachusetts Constitution, and to litigation in other states.

Citations and references

Statutes and constitutional provisions:
- Idaho Code § 34-1809 (AG initiative review)
- Idaho Const. art. III, §§ 1, 9-10
- U.S. Const. art. V

Case:
- Westerberg v. Andrus, 114 Idaho 401, 757 P.2d 664 (1988)

Related materials:
- ID AG Opinion 06-1 (Feb. 2006, analyzing a proposed Idaho state-constitutional marriage amendment)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C040104.pdf

Original opinion text

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN

April 1, 2004

The Honorable Ben Ysursa
Secretary of State
HAND DELIVERY

Re: Certificate of Review – Initiative for Defense of Marriage Amendment

Dear Secretary of State Ysursa:

An initiative petition was filed with your office on March 12, 2004. Pursuant to Idaho Code § 34-1809, this office has reviewed the petition and has prepared the following advisory comments. It must be stressed that, given the strict statutory time frame in which this office must respond and the complexity of the legal issues raised in this petition, this office's review can only isolate areas of concern and cannot provide in-depth analysis of each issue that may present problems. Further, under the review statute, the Attorney General's recommendations are "advisory only," and the petitioners are free to "accept or reject them in whole or in part."

[The certificate then walks through, in order: Ballot Title; Matters of Substantive Import (the proposed law's full text quoted; the form deficiencies; the analysis that the proposal is more a mandate than a law; and the conclusion that an initiative cannot restrict future legislatures absent a constitutional mandate); and Conclusion. The full text runs approximately 3 pages and is available in the linked PDF.]

I HEREBY CERTIFY that the enclosed measure has been reviewed for form, style and matters of substantive import and that the recommendations set forth above have been communicated to petitioner Vivian L. Wayment by deposit in the U.S. Mail of a copy of this certificate of review.

Sincerely,

LAWRENCE G. WASDEN
Attorney General

Analysis by:
Brian P. Kane
Deputy Attorney General