Legislator: Supreme Court should change gay marriage ruling

BOISE — House State Affairs made several decisions on new and pending legislation Monday, voting to introduce a resolution on gay marriage, opting not to advance a call for a public lands amendment and advancing a bill that codifies new restrictions on data centers arriving in the state.

Calls for reconsideration of gay marriage ruling

The committee advanced a joint resolution from Rep. Tony Wisniewski, R-Post Falls, that states “the definition of marriage as a union between one man and one woman” and urges “the Supreme Court to reconsider the Obergefell v. Hodges decision.” In this 2015 ruling, the court required every state to treat same-sex unions the same as opposite-sex unions, with the majority arguing that allowing marriage for some couples and not others violated the due process clause of the 14th Amendment.

Wisniewski said Monday the issue of marriage is one better left up to the states and carries with it a long-standing legal precedent of being exclusively between a man and a woman. His resolution further asserts the 2015 ruling was “illegitimately adjudicated” due to Justices Ruth Bader Ginsburg and Elena Kagan — both of whom voted with the majority — not recusing themselves as both officiated same-sex marriages before their ruling.

Rep. Joe Alfieri, R-Coeur d’Alene, referring to this allegation of illegitimacy, said the case was evidence of the Supreme Court both “stepping into an area where they have no authority” and “making an illegal ruling.”

Rep. Stephanie Mickelsen, R-Idaho Falls, questioned the need for the resolution with Idaho’s Constitution already saying “marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.” 

Wisniewski responded that it was a “zombie feature” of the Idaho Constitution that remains, but the Supreme Court’s ruling invalidates it.

Rep. Monica Church, D-Boise, while entirely opposed to the resolution, took issue with specific language, noting that marriage being between a man and woman is foundational to “the United States’ Anglo-American legal tradition.” Church argued against codifying this in Idaho, given that the same legal framework has historically been about moving “a woman from a father to a husband because there were no legal rights for women at that time.”

Wisniewski did not offer a comment on Church’s appraisal.

Rep. Anne Henderson Haws, D-Boise, said overturning the standing Obergefell decision would upend life for many Idahoans, impacting their ability to make medical decisions for their loved ones when the need arose or participate in civil life with “the same rights that we all have.”

“I believe that in Idaho we are independent and we are freedom-loving people,” Haws said, "and we should preserve those rights that people have to take care of those they love, regardless of the sex of their partner.”

The proposed resolution passed by voice vote, sending the matter to the House floor, after which it will return to committee for debate. Boise’s representation on the committee, in Church and Haws, both voted in opposition.

Public lands amendment fails in tie vote

The committee also held a public hearing for a proposed amendment to the Idaho Constitution regarding the management of state endowment lands. Under the current language, state endowment lands must be managed to “secure the long-term financial return” to their beneficiaries, the majority of which are public education institutions. 

The proposal from Rep. Britt Raybould, R-Rexburg, seeks to shift away from this framework by giving revenue-generating activities top priority, followed by preserving and promoting public access for recreation. It further states that advancing either of these aims is to be prioritized over the sale or exchange of state land.

Raybould argued this change would provide more flexibility for the Land Board when making land decisions, while still asserting that any public land action taken remains for the benefit of the trustees who receive income from logging, mining and grazing on endowment lands. 

“We are simply asking to have (public access) be a weight as part of your overall decision-making,” Raybould said of the Land Board. “… They still have an obligation to ensure that the decisions they are making are defensible from the standpoint of delivering that trustee benefit.”

The majority of testimony Monday came from individuals representing mining, timber and other similar industries that use endowment lands for their businesses.

Travis Jones, principal at Riley Stegner and Associates, testified in opposition on behalf of several companies, including Bennett Lumber Products, Molpus Woodlands Group and Stimson Lumber Company. Jones said the change to the Idaho Constitution risks violating the Congress’s Idaho Admission Act of 1889, which created a land trust of 3.6 million acres to fund public schools and other state institutions.

In opening up other interests for prioritization, Jones said the amendment risks violating this act and could result in the state needing to draw more down from its general fund for public schools if the endowment fund “is not maximizing this long-term revenue.”

Jack Hurty, representing the Idaho Outfitters & Guides Association, spoke in favor of the amendment proposal, saying the change, while continuing to give revenue generation top priority, opens up a space for considering the state’s recreation in Land Board decisions.

In explicitly naming public access as a key priority, Hurty said the amendment represents a “big positive” for the group’s outfitter membership.

“We create jobs, we drive outside spending into rural communities," Hurty said. “These are small, family-owned businesses, often multi-generational Idahoans who love their public lands.”

Dustin Miller, director of the Idaho Department of Lands, said his agency has yet to take a position on the proposal but questioned “what we are trying to fix,” noting that the operation of endowment lands continues to allow hunting, fishing and other forms of recreation under the current arrangement. 

Church spoke in favor of the amendment, characterizing many of those who testified as representing the “old guard” who have benefited from the tax dollars and protections of the state and now fear “others might benefit.”

Others on the committee argued that this change would push current beneficiaries out.

“We have so many minerals in our state and we don’t need to handicap them with people that believe that their recreation is more important than someone’s livelihood,” Rep. Judy Boyle, R-Midvale, said, “and that’s exactly what this amendment is going to do.”

Raybould's proposal failed after a split 7-7 vote, as a majority is required to advance resolutions and other proposed legislation.

Restrictions on data centers

A new bill from Mickelsen received committee approval Monday and seeks to address the growing number of data centers and other large electricity users in the state.

A key part of the bill is a requirement that public utilities not provide electric service to a new large-load customer unless the public utility commission finds that serving them “has no rate increase.” The bill also requires a “no-harm test” be undertaken by the Idaho Public Utilities Commission to determine whether a new large load, such as a data center, would increase electricity rates for existing customers. 

Any future service agreements with large-load customers would also require a commission-approved “exit fee structure” to ensure that leaving the energy grid doesn’t affect the rates customers pay. Mickelsen said these changes, along with others, codify rules already adopted by the Idaho Public Utilities Commission. 

The bill would apply to existing entities with a power requirement exceeding 50 MW as of Jan. 1, 2000. Mickelsen said as of now, current and future data centers want about 500 MW, while a 1,000 MW power plant is enough to power between 700,000 and 1 million homes.

“You’re talking an extreme amount of growth and to have your … existing rate payers pay for that growth is not something we want to do,” Mickelsen said.

Mickelsen's bill passed on to the House floor, after which it will return to committee for debate.

    Alfieri