It’s an old story in Idaho.
A majority undermines the rights of a few, only to have the courts intervene.
So it was with the 1890 state constitutional disenfranchisement of Mormons, native Americans and Chinese — a provision struck down by the state courts.
So it was with the 2006 state constitutional amendment banning same-sex marriage. The U.S Supreme Court essentially invalidated that measure in its landmark 2015 Obergefell v. Hodges ruling.
And so it will be with banning the practice of discriminating against gays, lesbians, bisexual and transgender people — which, in the eyes of the state, remains legal. For 15 years, Idaho lawmakers have refused to add the words “sexual orientation” and “gender identity” to Idaho’s Human Rights Act.
As a result, 15 cities and counties — including Moscow and Lewiston — have passed their own anti-discrimination ordinances. Last month, the Idaho Falls City Council expanded its anti-discrimination law.
The first crack came last week when a 6-3 Supreme Court majority — including Republican appointees Chief Justice John Roberts and Associate Justice Neil Gorsuch — banned discrimination in employment against people in the LGBT community.
That’s based on the 1964 Civil Rights Act, which banned discrimination on the basis of race, color, religion, national origin and sex.
What’s key here is the term “sex.” At the time the measure was passed, the clear focus was on protecting the rights of African Americans and other racial minorities. As far as the term sex went, it was binary.
Fifty-six years later, the meaning of that word has evolved to such an extent that a majority of four liberals and two conservatives agree it now includes sexual orientation and gender identity.
For now, it applies solely to discrimination on the job.
But standard civil rights protections against discrimination in housing, education and, the thorniest issue of all, public accommodations, can not be too far off.
Maybe it will take the shape of a series of federal court rulings broadening this latest precedent.
There’s one wrinkle: The 1964 congressional act does not prohibit discrimination in public accommodations “on account of sex.”
That still leaves Idaho’s Human Rights Act, however.
For one thing, the state law’s mission is to “provide for execution within the state of the policies embodied in the federal Civil Rights Act of 1964. ...”
For another, the state law bans discrimination in employment, public accommodations, housing and education on the basis of “race, color, religion, sex or national origin or disability.”
That could give the Supreme Court its opportunity to recognize a salient fact: For all intents and purposes, the words “sexual orientation” and “gender identity” already have been added to the state Human Rights Act.
All of which could put people such as outgoing Senate President Pro Tem Brent Hill, R-Rexburg, in a box.
Hill has been willing to expand human rights in Idaho — but only to a point. He wants to give religions the right to continue discriminating when it comes to public accommodations.
This is not about what occurs within a sanctuary. The First Amendment protects a religion’s right — if it chooses — to refuse to perform marriage ceremonies whenever it wishes. By the same token, that same church may choose not to appoint women clergy.
But when a church rents out its facilities to the general public, it has now ventured into the public square. To say it could openly refuse to serve someone on the basis of their sexual orientation or gender identity is, for civil rights groups, less a compromise than a capitulation.
“I don’t think people for the most part believe that human beings should lose their livelihoods or their ability to make a living because of their sexual orientation,” Hill told Betsy Russell of the Idaho Press. “But at the same time, this is the danger that comes with leaving it to the courts to come up with a winner-take-all decision, which is what courts do.”
All of which could bring Idaho full circle. As they did with suffrage in the 1890s and marriage equality at the turn of the century, Idaho’s 105 lawmakers could wind up debating not whether to respect rights but how to constrain them.
You know how that turned out. — M.T.