Presented by: Barry Peters, Attorney at Law

      Since Idaho statutes already prohibit homosexual marriage, why is it necessary to add that same definition of "marriage" to Idaho's Constitution? Won't the current definition in the statutes be adequate to prohibit homosexual marriages in Idaho?
      Unfortunately not.
      Leaving Idaho's definition of marriage in the statutes instead of raising it to the Constitutional level creates an opportunity for activist judges in Idaho to force our state to recognize homosexual marriages. A small handful of judges with a personal agenda could force Idaho to accept homosexual marriages exactly like a few judges did in Massachusetts.

The Massachusetts Story
      In 2003, as the result of a four to three split decision vote, the Massachusetts Supreme Court forced the Commonwealth of Massachusetts to become the first state in the country to accept homosexual marriages.
      Those four justices, with the stroke of a pen, substituted their own radical opinions for the lawfully-enacted decisions of the legislature and of the citizens of Massachusetts, and even for the 200 years of prior court decisions in the state. How that decision was imposed illustrates the threat that Idaho faces of a similar decision.
      Massachusetts state law had for over 200 years expressly permitted marriage only between one man and one woman. The law's requirements were straightforward and broadly accepted. In two centuries of court decisions, the definition of marriage in Massachusetts had remained unchanged.
      But, unknown to the unsuspecting citizens, the Massachusetts Constitution contained stealth provisions: "Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty, and property . . . All people are born free and equal and have certain natural, essential and unalienable rights . . ."
      In 2003, four out of seven members of the Massachusetts Supreme Court found in these time-honored phrases a heretofore undiscovered right, the right to homosexual marriage. The Court rendered its decision stating that these provisions required the state of Massachusetts to begin licensing homosexual marriages.
      In that decision, the Court focused on two words: "liberty" and "equality." These two words were all it took for four judges who were predisposed to the recognition of homosexual marriage to impose their will on millions of Massachusetts citizens. As that Court declared:

The Massachusetts Constitution protects matters of personal liberty against government incursion as zealously, and often more so, than does the Federal Constitution, even where both Constitutions employ essentially the same language. . . . Limiting the protections, benefits, and obligations of civil marriage to opposite-sex couples violates the basic premises of individual liberty and equality under law protected by the Massachusetts Constitution.

      In short, the justices took the opportunity presented by this case to radically redefine two commonly understood and widely respected words. They arbitrarily transformed the meaning of the words "liberty" and "equality" in a manner never envisioned or anticipated by the state's Founding Fathers when they enacted their state's Constitution. They grafted onto those terms their own misguided notions. They substituted their own values for the longstanding values democratically expressed by the citizenry and legislature of the state of Massachusetts. Then, as if it offered some measure of legitimacy to their zealous public policy reversal, the Court concluded that "civil marriage is an evolving paradigm." Sadly, at the hands of these justices, civil marriage in Massachusetts has instead become a mockery of the genuine article.

Idaho at Risk
      Idaho's Constitution has the same stealth provisions.
      The first Article of the Idaho State Constitution states that "All men are by nature free and equal, and have certain inalienable rights, among which are enjoying and defending life and liberty . . ."
      Idaho citizens have liberty and equality, just like Massachusetts' citizens have liberty and equality.
      And just like the citizens of Massachusetts, Idaho's citizens are also at risk of being required to recognize homosexual marriage. In the case of Idaho, it would take the vote of only three justices to impose this tyranny. With the assent of just three out of five members of our Supreme court, Idaho could be required to begin the recognition of homosexual marriages. All that would be required is the redefinition of our Constitution's requirements of "liberty" and "equality." And now that the Massachusetts Supreme Court has paved the way with its own legal precedent, that semantical task has become that much easier for Idaho's courts to embrace.

The Solution: Amend the Constitution
      The only way to absolutely prevent a few judges in this state from conscripting and twisting these notions of liberty and equality to their own ends is to amend Idaho's Constitution. The bill, currently under consideration is simple. It reads:

Only a union of one man and one woman shall be valid or recognized in this state. This state and its political subdivisions shall not create or recognize a legal status similar to that of marriage.

      Once the state Constitution becomes clear in its definition of "marriage" as being limited to the union of one man and one woman, no judge will be able to twist the principles of "liberty" and "equality" to impose standards that the citizens and their legislators oppose. Amending the Constitution will ensure that the desires of the citizens of Idaho are not frustrated by the vote of just three judges. It will place on an immovable foundation the very definition of marriage. It will give due honor to the institution that has been the cornerstone of civilization for millennia.

      Some who oppose amending our Constitution do so with a genuine lack of understanding. However, some others clearly understand the issue and privately want to leave the back door unlocked. They hope that a few activist judges in Idaho might steal through that door and do what neither the legislature, nor the citizens, are willing to do -- force Idaho to accept homosexual marriages.

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