Thursday, February 24, 2011

How Obama's DOMA Decision Affects Idaho

Posted By on Thu, Feb 24, 2011 at 12:28 PM

Calling it an "historic position," Idaho scholars and activists cheered the Obama administration's move to no longer defend the federal Defense of Marriage Act.

In Wednesday's announcement, U.S. Attorney General Eric Holder called the act unconstitutional by denying gays and lesbians the right to marry.

David Adler, director of the McClure Center for Public Policy Research at the University of Idaho, told Citydesk the change would carry a great deal of influence in the courts.

"The fact that the Justice Department has changed its position reflects the fact that it can, in fact, change a historic position on a constitutional issue," said Adler.

Reminded of the historic significance of Brown vs. the Board of Education, Adler recounted: "Under President Eisenhower, the State Department wrote an amicus brief to the Supreme Court urging it to overturn 'separate but equal.' The justice department now has the opportunity to do the same thing."

"Proposition 8 is the 'Brown' for gays and lesbians across America," said Adler.

Also Wednesday, attorneys for the American Foundation for Equal Rights, Theodor B. Olsen and David Boies announced filing a request to the federal Ninth Circuit Court of Appeals asking that their six-month-old stay barring same-sex marriages in California be immediately lifted.

"It has now been two and a half years since the right to marry has been taken away from a vast number of honorable, decent Californians," said Olsen. "How long must gay and lesbian Californians suffer the daily deprivation of fundamental rights that Proposition 8 inflicts?"

The Ninth Circuit has been waiting on the California Supreme Court to decide whether supporters of Prop 8 have legitimate standing to challenge the Aug 2011 federal court ruling that found Prop 8 unconstitutional. The answer is not expected to come until September.

The impact of the Proposition 8 ruling could be huge for Idaho, said Adler, because the Gem State is part of the Ninth Circuit.

"Assuming that the Ninth Circuit strikes down laws that discriminate against gays and lesbians, including the right to marriage, then Idaho's law will have to conform to the Ninth Circuit decision," said Adler.

That doesn’t necessarily mean Idaho will accept marriage equality without a fight.

"It's likely Boies and Olsen will win on their argument in front of the Ninth Circuit, and the court will render a historic ruling that the 14th amendment bars states from denying gays and lesbians the right to marry because they have a compelling constitutional argument," said Adler.

"We all know it is going to end up before the Supreme Court," said Adler. "The only question is when and who will be the parties."

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