January 27, 2005

 

Senator Don Burtenshaw, Chair

Senate State Affairs Committee

Idaho Statehouse

Boise, ID  83702

 

Dear Chairman:

The ACLU of Idaho strongly objects to the proposed anti-gay constitutional amendment, which seeks to deprive loving lesbian and gay couples in this state of any mechanism for ensuring that the law recognizes their emotional and financial commitment to one another.  The proposed amendment is fundamentally unfair and, moreover, constitutionally deficient.

The proposed amendment raises serious constitutional concerns.  The Fourteenth Amendment of the United States Constitution guarantees that no state will “deny to any person within its jurisdiction the equal protection of the laws.”  The United States Supreme Court has long held that discrimination for its own sake is inherently improper. As the Court stated in United States Department of Agriculture v. Moreno, “[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare [governmental] desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”  In Romer v. Evans, the Court made express that this fundamental principle applies equally to discrimination against lesbian and gay people.  If the state legislature were to approve the proposed amendment, it would do so with the intent of fencing lesbian and gay couples out of any form of civil equality.  Such action would violate the constitutional guarantee of equal protection of the laws.

Moreover, in Lawrence v. Texas, the United States Supreme Court struck down a Texas statute criminalizing “homosexual conduct,” holding that the statute at issue violated the fundamental right to privacy and autonomy under the United States Constitution.  Emphasizing that gay and lesbian couples “are entitled to respect for their private lives,” the Court held that a gay or lesbian couple may form an “intimate,” “personal,” and “enduring” relationship and “still retain their dignity as free people” because “[t]he liberty protected by the Constitution allows homosexual persons the right to make this choice.”  Tellingly, the Court stated as follows:

[O]ur laws and tradition afford constitutional protection to personal decisions relating to  . . . family relationships . . . . These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment . . . . Persons in homosexual relationships may seek autonomy for these purposes, just as heterosexual persons do.

Simply stated, the Court held that gay and lesbian couples “are entitled to respect for their private lives;” the government “cannot demean their existence or control their destiny.”  The proposed amendment impermissibly penalizes gay and lesbian couples for their exercise of this fundamental right to enter into an intimate relationship.

We at the ACLU are challenging a similar constitutional amendment in the state of Nebraska.  Significantly, a federal court issued a forceful ruling in which it flatly rejected attempts by the state of Nebraska to dismiss our claims that the amendment violates the constitutional guarantees of equal protection and due process and constitutes an unconstitutional bill of attainder.  We believe that the federal court in this jurisdiction would do no differently if presented with a similar circumstance.