"I do solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States, and the Constitution of the State of Idaho, and that I will faithfully discharge the duties of (insert office) according to the best of my ability.” - Oath of office for Idaho officials
After each election Idaho legislators take an oath to support the U.S. Constitution. Unfortunately, the dedication to that oath seems to fade once a legislator decides to send “a message” to particular parts of their constituency. That failure to follow their oath has been on strong display the last week or so, particularly in the Idaho House of Representatives.
Two vivid examples are HB 500 and HB 509, both of which just passed the Idaho House. Both are designed to hit those who are transgender, presumably because gays are no longer an acceptable target.
HB 500 is sponsored by my local legislator, Rep. Barbara Ehardt (R-Idaho Falls). It forbids transgender women or girls from competing on female sports teams. It also allows any athlete challenged to have an external and internal examination of their sexual organs (I can’t think of another statute that would allow a similar intrusion). It was passed by a 52-16 vote in the Idaho House.
The Idaho Attorney General’s Office specifically expressed “concerns about the defensibility” of the bill. The measure likely violates the Equal Protection Clause of the U.S. Constitution by solely impacting female athletes and those who are transgender.
Despite that warning, it passed by a 52-16 vote in the Idaho House. I was most disappointed by Rep. Gary Marshall, a former well-respected government professor at BYU-Idaho who proclaimed, somewhat arrogantly: “We are the Legislature.” He knows that the Idaho Legislature reach is secondary to the U.S Constitution.
This blatantly unconstitutional bill seems designed to send a message to constituents who don’t like the transgendered. That beneficial impact is likely to be limited. Last week I spoke to a group of local seniors. I was asked at one point why the Legislature had not addressed a particular issue and I pointed to the tendency to run bills that attract attention rather than tackle real problems, mentioning the transgender measures. I got a laugh from this rather conservative audience. I suspect that is the broad sentiment among even those who lean Republican here in conservative east Idaho.
HB 509 is on even shakier ground. It directly defies an existing federal court order by barring Idahoans from changing the gender marker on their birth certificate. We already know it violates the U.S. Constitution and will go down in flames once challenged through a lawsuit. The sponsor is Julianne Young (R-Blackfoot). It was approved by the Idaho House 53-16.
The question is what is the real value of passing legislation that will surely lose in the courts and cost Idaho taxpayers money? I suspect some House members think they can send a message by voting in favor but are secretly hoping the Idaho Senate tanks the measures. That is pretty cynical. Still others might think they know better than the federal courts what the U.S. Constitution means, despite the courts being designated as the branch to make those determinations (and, certainly not the Idaho Legislature).
That brings me to HB 361. This bill tied up the Idaho House last Friday when Rep. Heather Scott (R-Blanchard) tried, unsuccessfully, to pull the bill from committee. It is entitled the Abortion Human Rights Act and would make all abortion illegal in Idaho and direct the Idaho Attorney General to defy federal courts on the issue.
This is, again, a direct violation of Ms. Scott’s legislative oath. I am confident in stating that there is not a single conservative justice on the U.S. Supreme Court nor a single conservative legal scholar who would agree with the constitutionality of this measure.
HB 361 really has its roots in the nullification doctrine that was a key basis for the south’s justification for the Civil War and was directly opposed by President Lincoln. It is wrapped up and intertwined with the shoddy history of slavery. What Scott and her supporters are truly arguing for is a sundering of our national fabric and that is plain irresponsible.
If the Legislature does want to advance these kinds of measures, each should include an Idaho Attorney General’s opinion on constitutional viability and a fiscal note for the likely cost to Idaho taxpayers. I doubt many Idaho constituents would favor such measures once they understood the direct hit to their own pocketbook and such accountability would provide voters critical information in the next election.