Idaho's gay marriage ban remains in state constitution

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Conservatives Are Still Blocking Gay Marriage in The South


BOISE, Idaho (AP) — Same-sex marriage is now legal in all 50 states, but nestled in the Idaho Constitution remains the provision that defines marriage as only between a man and a woman.

The Supreme Court struck down all gay marriage bans nationwide last week, making Idaho's constitutional marriage definition unenforceable.

However, 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.

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Idaho's gay marriage ban remains in state constitution
People celebrate during a rally outside the Stonewall Tavern in the West Village in New York on June 26, 2015, after the US Supreme Court's historic decision on same sex marriage. The US Supreme Court ruled on June 26, that gay marriage is a nationwide right, a landmark decision in one of the most keenly awaited announcements in decades and sparking scenes of jubilation. The nation's highest court, in a narrow 5-4 decision, said the US Constitution requires all states to carry out and recognize marriage between people of the same sex. AFP PHOTO/JEWEL SAMAD (Photo credit should read JEWEL SAMAD/AFP/Getty Images)
Ikeita Cantu, left, and her wife Carmen Guzman, of McLean, Va., hold up signs as they celebrate outside of the Supreme Court in Washington, Friday June 26, 2015, after the court declared that same-sex couples have a right to marry anywhere in the US. The couple was married in Canada in 2009 when gay marriage was illegal in Virginia. (AP Photo/Jacquelyn Martin)
A couple kiss to celebrate the US Supreme Court's historic decision on same sex marriage during a rally outside the Stonewall Tavern in the West Village in New York on June 26, 2015, after the US Supreme Court's historic decision on same sex marriage. The US Supreme Court ruled on June 26, that gay marriage is a nationwide right, a landmark decision in one of the most keenly awaited announcements in decades and sparking scenes of jubilation. The nation's highest court, in a narrow 5-4 decision, said the US Constitution requires all states to carry out and recognize marriage between people of the same sex. AFP PHOTO/JEWEL SAMAD (Photo credit should read JEWEL SAMAD/AFP/Getty Images)
Jim Obergefell, the named plaintiff in the Obergefell v. Hodges Supreme Court case that legalized same sex marriage nationwide, is backed by supporters of the courts ruling on same-sex marriage on the step of the Texas Capitol during a rally Monday, June 29, 2015, in Austin, Texas. The Supreme Court declared Friday that same-sex couples have a right to marry anywhere in the United States. (AP Photo/Eric Gay)
IMAGE DISTRIBUTED FOR HUMAN RIGHTS CAMPAIGN - Marriage equality supporters rally on the steps of the Supreme Court as they wait for a decision Friday, June 26, 2015, in Washington. (Kevin Wolf/AP Images for Human Rights Campaign)
People celebrates during a rally outside the Stonewall Tavern in the West Village in New York on June 26, 2015, after the US Supreme Court's historic decision on same sex marriage. The US Supreme Court ruled on June 26, that gay marriage is a nationwide right, a landmark decision in one of the most keenly awaited announcements in decades and sparking scenes of jubilation. The nation's highest court, in a narrow 5-4 decision, said the US Constitution requires all states to carry out and recognize marriage between people of the same sex. AFP PHOTO/JEWEL SAMAD (Photo credit should read JEWEL SAMAD/AFP/Getty Images)
Carlos McKnight of Washington, waves a flag in support of gay marriage outside of the Supreme Court in Washington, Friday June 26, 2015. A major opinion on gay marriage is among the remaining to be released before the term ends at the end of June. (AP Photo/Jacquelyn Martin)
People celebrate outside the Supreme Court in Washington, DC on June 26, 2015 after its historic decision on gay marriage. The US Supreme Court ruled Friday that gay marriage is a nationwide right, a landmark decision in one of the most keenly awaited announcements in decades and sparking scenes of jubilation. The nation's highest court, in a narrow 5-4 decision, said the US Constitution requires all states to carry out and recognize marriage between people of the same sex. AFP PHOTO/ MLADEN ANTONOV (Photo credit should read MLADEN ANTONOV/AFP/Getty Images)
Supporters of same-sex marriage celebrate outside of the Supreme Court in Washington, Friday June 26, 2015, after the court declared that same-sex couples have a right to marry anywhere in the US. (AP Photo/Jacquelyn Martin)
Two women celebrate outside the Supreme Court in Washington DC on June 26, 2015 after its historic decision on gay marriage. The US Supreme Court ruled Friday that gay marriage is a nationwide right, a landmark decision in one of the most keenly awaited announcements in decades and sparking scenes of jubilation. The nation's highest court, in a narrow 5-4 decision, said the US Constitution requires all states to carry out and recognize marriage between people of the same sex. AFP PHOTO/ MLADEN ANTONOV (Photo credit should read MLADEN ANTONOV/AFP/Getty Images)
Same-sex marriage supporters rejoice after the U.S Supreme Court hands down a ruling regarding same-sex marriage June 26, 2015 outside the Supreme Court in Washington, DC. The high court ruled that same-sex couples have the right to marry in all 50 states. (Photo by Alex Wong/Getty Images)
People celebrate outside the Supreme Court in Washington, DC on June 26, 2015 after its historic decision on gay marriage. The US Supreme Court ruled Friday that gay marriage is a nationwide right, a landmark decision in one of the most keenly awaited announcements in decades and sparking scenes of jubilation. The nation's highest court, in a narrow 5-4 decision, said the US Constitution requires all states to carry out and recognize marriage between people of the same sex. AFP PHOTO/ MLADEN ANTONOV (Photo credit should read MLADEN ANTONOV/AFP/Getty Images)
People run under a giant equality flag as they celebrate outside the Supreme Court in Washington, DC on June 26, 2015 after its historic decision on gay marriage. The US Supreme Court ruled Friday that gay marriage is a nationwide right, a landmark decision in one of the most keenly awaited announcements in decades and sparking scenes of jubilation. The nation's highest court, in a narrow 5-4 decision, said the US Constitution requires all states to carry out and recognize marriage between people of the same sex. AFP PHOTO/ MLADEN ANTONOV (Photo credit should read MLADEN ANTONOV/AFP/Getty Images)
UNITED STATES - JUNE 26: Same-sex marriage supporters from the Human Rights Campaign celebrate after the U.S. Supreme Court legalized same-sex marriages nationwide on Friday, June 26, 2015. (Photo By Bill Clark/CQ Roll Call)
People shout slogans as they celebrate outside the Supreme Court in Washington, DC on June 26, 2015 after its historic decision on gay marriage. The US Supreme Court ruled Friday that gay marriage is a nationwide right, a landmark decision in one of the most keenly awaited announcements in decades and sparking scenes of jubilation. The nation's highest court, in a narrow 5-4 decision, said the US Constitution requires all states to carry out and recognize marriage between people of the same sex. AFP PHOTO/ MLADEN ANTONOV (Photo credit should read MLADEN ANTONOV/AFP/Getty Images)
The crowd celebrates outside of the Supreme Court in Washington, Friday June 26, 2015, after the court declared that same-sex couples have a right to marry anywhere in the US. (AP Photo/Jacquelyn Martin)
President Barack Obama walks toward the podium before speaking in the Rose Garden of the White House in Washington, Friday, June 26, 2015, after the Supreme Court declared that same-sex couples have the right to marry anywhere in the US. (AP Photo/Pablo Martinez Monsivais)
WASHINGTON, DC - JUNE 26: Same-sex marriage supporters rejoice after the U.S Supreme Court hands down a ruling regarding same-sex marriage June 26, 2015 outside the Supreme Court in Washington, DC. The high court ruled that same-sex couples have the right to marry in all 50 states. (Photo by Alex Wong/Getty Images)
WASHINGTON, DC - JUNE 26: Activists hold signs regarding same-sex marriage outside the U.S. Supreme Court June 26, 2015 in Washington, DC. The high court ruled that same-sex couples have the right to marry in all 50 states. (Photo by Alex Wong/Getty Images)
Same-sex marriage supporters rejoice after the U.S Supreme Court hands down a ruling regarding same-sex marriage June 26, 2015 outside the Supreme Court in Washington, DC. The high court ruled that same-sex couples have the right to marry in all 50 states. (Photo by Alex Wong/Getty Images)
From left, Annie Katz of the University of Michigan, Zaria Cummings of Michigan State University, Spencer Perry of Berkeley, Calif., and Justin Maffett of Dartmouth University, celebrate outside of the Supreme Court in Washington, Friday June 26, 2015, after the court declared that same-sex couples have a right to marry anywhere in the US. (AP Photo/Jacquelyn Martin)
Same-sex marriage supporters rejoice after the U.S Supreme Court hands down a ruling regarding same-sex marriage June 26, 2015 outside the Supreme Court in Washington, DC. The high court ruled that same-sex couples have the right to marry in all 50 states. (Photo by Alex Wong/Getty Images)
Same-sex marriage supporters rejoice after the U.S Supreme Court hands down a ruling regarding same-sex marriage June 26, 2015 outside the Supreme Court in Washington, DC. The high court ruled that same-sex couples have the right to marry in all 50 states. (Photo by Alex Wong/Getty Images)
People shout slogans as they celebrate outside the Supreme Court in Washington, DC on June 26, 2015 after its historic decision on gay marriage. The US Supreme Court ruled Friday that gay marriage is a nationwide right, a landmark decision in one of the most keenly awaited announcements in decades and sparking scenes of jubilation. The nation's highest court, in a narrow 5-4 decision, said the US Constitution requires all states to carry out and recognize marriage between people of the same sex. AFP PHOTO/ MLADEN ANTONOV (Photo credit should read MLADEN ANTONOV/AFP/Getty Images)
The crowd reacts as the ruling on same-sex marriage was announced outside of the Supreme Court in Washington, Friday June 26, 2015. The Supreme Court declared Friday that same-sex couples have a right to marry anywhere in the US. (AP Photo/Jacquelyn Martin)
Same-sex marriage supporters hold rainbow flags outside the U.S. Supreme Court June 26, 2015 in Washington, DC. The high court ruled that same-sex couples have the right to marry in all 50 states. (Photo by Alex Wong/Getty Images)
People wave a giant equality flag in celebration outside the Supreme Court in Washington, DC on June 26, 2015 after its historic decision on gay marriage. The US Supreme Court ruled Friday that gay marriage is a nationwide right, a landmark decision in one of the most keenly awaited announcements in decades and sparking scenes of jubilation. The nation's highest court, in a narrow 5-4 decision, said the US Constitution requires all states to carry out and recognize marriage between people of the same sex. AFP PHOTO/ MLADEN ANTONOV (Photo credit should read MLADEN ANTONOV/AFP/Getty Images)
Ariel Olah of Detroit, left, and her fiancee Katie Boatman, are overcome by emotion outside the Supreme Court in Washington, Friday, June 26, 2015, as the ruling on same-sex marriage was announced. The court declared that same-sex couples have a right to marry anywhere in the US. (AP Photo/Jacquelyn Martin)
A man holds a rainbow flag in support of same-sex marriage outside the U.S. Supreme Court June 26, 2015 in Washington, DC. The high court ruled that same-sex couples have the right to marry in all 50 states. (Photo by Alex Wong/Getty Images)
Carmelita Cabello, left, and her partner of 31 year, Jaque Roberts, right, arrive at the Travis County building for a marriage license after hearing the Supreme Court ruling that grants same-sex couples the right to marry nationwide, Friday, June 26, 2015, in Austin, Texas. (AP Photo/Eric Gay)
Lupe Garcia, left, hugs her partner Cindy Stocking, right, at the Travis County building after hearing the Supreme Court ruling that grants same-sex couples the right to marry nationwide, Friday, June 26, 2015, in Austin, Texas. (AP Photo/Eric Gay)
The U.S. Supreme Court ruled that gay couples nationwide have the right to marry in a 5-4 decision. How incredible it is to be here as they announced it!
It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality . . . Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. #fbf #equality #lovemustwin #freedomtomarry
People are FREAKING OUT at the Stonewall Inn! Tears, hugs, laughter. http://t.co/bC1RUfEDzk
IMAGE DISTRIBUTED FOR HUMAN RIGHTS CAMPAIGN - Participants celebrate at the San Francisco Pride Parade on Sunday, June 28, 2015, in San Francisco, Calif., two days after the Supreme Court's landmark decision to require that states issue marriage licenses to same sex couples. (Adm Golub/AP Images for Human Rights Campaign)
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"It might be difficult to remove the language, but it's the right thing to do," said Leo Morales, acting executive director of the American Civil Liberties Union of Idaho. "Lawmakers have sworn an oath to uphold the law. It makes sense to clean up the books."

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.

"My opinion is that no legislative action is required," said Senate Majority Leader Bart Davis of Idaho Falls. "Whether the Legislature chooses to do something or not, that's still up in the air. But right now, (the ban) is unenforceable as required by law."

The Idaho Constitution is subject to the Supreme Court, meaning the state must defer to the court's decision even if its own laws differ. But having conflicting state and federal laws can cause confusion, Morales said.

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. Morales 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.

Idaho's history of removing obsolete provisions from its constitution began with the original document in 1890. At the time, Idaho disenfranchised anyone who practiced polygamy, encouraged polygamy or supported organizations encouraging polygamy as a way to strip Mormons of their right to vote, holding office or serving on juries.

Today, the Idaho Legislature is prominently led by Mormons in both chambers, but the state didn't remove the anti-Mormon language until 1982. More than 100,000 people —a third of voters— voted to keep the ban.

Democratic Rep. John McCrostie of Boise, currently Idaho's only openly gay lawmaker says protecting unenforceable language is useless. He supports removing the language as quickly as possible.

Idaho's gay marriage ban was struck down in October.

Gay rights activists say the next hurdle is pushing legislation to protect lesbian, gay, bisexual and transgender people from employment and housing discrimination. Idaho's Human Rights Act does not offer sexual orientation and gender identity protections.

Earlier this year, for the first time in nearly a decade, lawmakers granted a hearing on the anti-discrimination legislation. While it was defeated in a legislative committee, it was a sign of hope for gay rights supporters.

"It's an exciting time for the LGBT community, not just for Idaho but for the entire nation," McCrostie said.

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