Idaho House Passes Resolution Asking Supreme Court to Toss Same-Sex Marriage Ruling

The resolution now goes to the state Senate. It comes a decade after Obergefell v. Hodges, which recognized a constitutional right to same-sex marriage.

The Idaho state flag hangs in the state Capitol in Boise on Jan. 9, 2023. Kyle Green/AP Photo

The Idaho House of Representatives has passed a resolution calling on the U.S. Supreme Court to overturn its 2015 decision that recognized same-sex marriage as a constitutional right.

The state House approved the resolution, known as a “memorial,” in a 46–24 vote on Jan. 27, urging the nation’s highest court to reverse Obergefell v. Hodges and “restore the natural definition of marriage, a union of one man and one woman.”

Republicans outnumber Democrats in the Idaho House, 61 to nine, and in the Senate, 29 to six.

The resolution, which was introduced on Jan. 7, will now move to the Idaho Senate, where a simple majority is required for passage. It will be forwarded to the Supreme Court if given final approval. The governor’s signature is not required.

In the Obergefell ruling, justices voted 5–4 to strike down the federal Defense of Marriage Act (DOMA), a 1996 law that defined marriage as the union between one man and one woman, and allowed states to refuse to accept same-sex marriages recognized under other states’ laws. At the same time, the court held that the Constitution’s 14th Amendment requires states to license and recognize same-sex marriage.

The resolution states that the Obergefell decision “is at odds with the Constitution of the United States and the principles upon which the United States is established” and compels states “to issue marriage licenses to same-sex couples and to recognize same-sex marriages in complete contravention of their own state constitutions and the will of their voters.”

It adds that the Obergefell ruling undermines marriage, which “has been recognized as the union of one man and one woman for more than two thousand years, and within common law, the basis of the United States’ Anglo-American legal tradition, for more than 800 years.”

“Obergefell arbitrarily and unjustly rejected this definition of marriage in favor of a novel, flawed interpretation of key clauses within the Constitution and our nation’s legal and cultural precedents,” the resolution states.

Common law refers to the body of law developed over centuries by court rulings, as opposed to statutes passed by legislatures.

The Obergefell decision was codified—or incorporated—into federal law in December 2022.

President Joe Biden signed the federal Respect for Marriage Act that month, calling it “a vital step toward equality, toward liberty and justice—not just for some, but for everyone—toward creating a nation where decency, dignity, and love are recognized, honored, and protected.”

‘Looking Out for Our State’

The sponsor of the resolution, Republican state Rep. Heather Scott, told The Epoch Times that she was taking action against the “judicial activism” of Obergefell that created “a right in the Constitution that is not there.”

Defining marriage is “a state decision,” she said. “That’s where we need to be having the debates, not being told by ... nine justices what we will and will not do.

“I see it as looking out for our state and for the people of our state to make decisions at the state level and not allowing the federal government to take away our state sovereignty. It’s a federalism issue.”

President Donald Trump’s return to the White House this month did not play a role in the timing of the resolution, she said, adding it had been “in [her] bill pile for eight years.”

She said this past summer she spoke to the man who asked her to look into filing the resolution and told him, “I promise you, this is the year I’ll do it.”

“I had no idea it was so controversial, until I started really digging into it,” she said, referencing the case of Kim Davis.

Davis is the former clerk of Rowan County, Kentucky, who ran into legal trouble for defying the Obergefell decision in August 2015 by refusing to issue marriage licenses to same-sex couples.

“There’s so many problems that are going on, religious freedoms that are being violated out there, and so the timing was a God thing,” Scott said.

“I didn’t realize it would move so quickly.”

House Democrat leadership criticized the resolution.

“This is a mean-spirited, divisive, and wasteful piece of legislation,” House Minority Leader Ilana Rubel said in a statement furnished to The Epoch Times.

“Instead of focusing on affordable housing or helping Idahoans manage the impact of inflation, GOP politicians are using their supermajority power to bully a small number of people who simply want the freedom to marry whom they love and to live in peace.

“Our legislature must get out of the business of persecuting its own citizens.”

Supreme Court Justice Clarence Thomas has written that the high court should “reconsider” major “substantive due process precedents,” including Obergefell.

Substantive due process protects those personal and relational rights, as distinguished from economic rights, that are not explicitly mentioned in the Constitution’s Bill of Rights and that are deeply rooted in U.S. history and tradition, as seen in the context of evolving social norms.

“Because any substantive due process decision is ‘demonstrably erroneous’ ... we have a duty to ‘correct the error’ established in those precedents,” Thomas wrote in a concurring opinion in Dobbs v. Jackson Women’s Health Organization (2022). Dobbs held the U.S. Constitution does not guarantee a right to abortion and returned the regulation of the procedure to the states.

“The question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated,” the justice added.

The Epoch Times reached out for comment from the Supreme Court’s public information office, but no reply was received by publication time.

Zachary Stieber contributed to this report.