The Idaho Legislature passed a resolution urging the United States Supreme Court to reverse its 2015 ruling that gave same-sex couples the legal right to marry in all states. Although every Idaho House Democrat and 15 House Republicans opposed the anti-gay marriage House Joint Memorial 1, it still easily passed with a 46-24 margin.

In Idaho, a joint memorial is defined as “A petition or representation made by the House of Representatives and concurred in by the Senate, or vice versa, addressed to whoever can effectuate the request of the memorial.”

In the House Joint Memorial 1, the legislature calls on the Supreme Court to “restore the natural definition of marriage, a union of one man and one woman.”

In reaction to the joint memorial, House Minority Leader Ilana Rubel, a Democrat, said the petition requesting the Supreme Court to strike down its ruling in Obergefell v. Hodges that same-sex couples have the Constitutional right to marry is disheartening, especially to the Idaho LGBTQ+ and their families.

“It’s deeply upsetting to some of those folks, and it makes them not want to live here,” Ms. Rubel said. “These are good people. These are good, law-abiding people who are feeling like their Legislature doesn’t want them here and doesn’t want them to be able to live the full rights that everybody else can.”  

The Idaho constitution includes language against same-sex marriage, stating that “A marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.”

In 2014, this anti-same-sex marriage clause in the Idaho constitution was repealed in federal court, and in 2015 it was overturned again via the Supreme Court case Obergefell v. Hodges, which made same-sex marriage in Idaho and nationwide legal under the equal protection clause and the due process clause of the 14th Amendment.

The 14th Amendment states, in part: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The Idaho joint memorial follows on the heels of remarks from Supreme Court Associate Justice Clarence Thomas, who expressed his desire to “revisit” the Obergefell v. Hodges ruling as part of his concurring opinion in the High Court’s landmark 2022 decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and nullified the federal right to abortion.

Justice Thomas first made his views known in his dissenting opinion in Obergefell. In the decision overturning Roe v. Wade, Thomas again raised the issue, saying, "In future cases, we should reconsider all of this court’s substantive due process precedents, including Griswold [right of married couples to use contraception], Lawrence [right to sexual activity between consenting adults, including homosexual couples], and Obergefell. Because any substantive due process decision is 'demonstrably erroneous,' we have a duty to 'correct the error' established in those precedents."

The Supreme Court cannot simply “revisit” past decisions. Their power, however, does allow them to consider a new case on any issue, including same-sex marriage. And while the Court is expected to give deference to its past decisions, the Dobbs decision overturning Roe v. Wade makes it clear this court is not above jettisoning even its most momentous past rulings.

The Idaho House Joint Memorial 1 concludes with resolutions “that the Idaho Legislature rejects the Obergefell decision,” “calls upon the Supreme Court of the United States to reverse and restore the natural definition of marriage, a union of one man and one woman,” and “insists on restoring the issue of marriage and enforcement of all laws pertaining to marriage back to the several states and the people.”

The resolution directs the Chief Clerk of the Idaho House of Representatives to forward a copy of the memorial to the Supreme Court of the United States.