Amendment Takes Away No Rights

MARRIAGE AMENDMENT WILL NOT TAKE RIGHTS AWAY FROM ANYONE

This column originally appeared in the Idaho Statesman, February 19, 2006.

What rights, protections, or responsibilities that gays have, or do not have, in Idaho will be affected by the passage of HJR 2 and its adoption as a constitutional amendment?

The immediate and simple answer is "none." Idaho law, in Sections 32-201 and 209, already limits marriage to a man and a woman and forbids the recognition of marriages from other states that violate the public policy of Idaho, specifically including same-sex marriage. The proposed constitutional amendment, if adopted, simply duplicates these provisions at the state constitutional level.

But there are a lot of myths about the existing law, and therefore the amendment, that need to be dispelled and the truth established. These truths need to be publicized, since they benefit all of us, and need to be vigorously enforced if not properly honored.

First truth: You can name any person you wish as your medical agent, and you can make a list of persons who can visit you in a hospital setting. The Medical Consent and Natural Death Act makes those rights clear.

Second truth: You can name any person you wish as your financial agent and give that person broad powers to deal with your affairs.

Third truth: You can provide for succession to your property at your death (through a will, trust, joint ownership, and other methods), to any person you wish.

Fourth truth: You can enter into contractual agreements with another person to determine property ownership, rights to income, divisions of responsibilities and debts, and so forth.

Fifth truth: You can nominate who will be your conservator or guardian if you are incapacitated, and if you are unable to do so, the first priority for appointment is whoever you named in your financial power (conservator) and medical power (guardian).

Sixth truth: You can name any person you wish as beneficiary of your life insurance, qualified plans (IRA, 401k, 403b etc.) and annuities.

Seventh truth: You can bindingly set your funeral-burial plans, including who can make any choices not contained in your own existing plan.

Eighth truth: Private industry can extend whatever benefits it wishes to its employees, and that will not be affected by the constitutional amendment.

So the truth is that any person who says they have been denied any of the above has simply failed to exercise existing rights. None of those rights will be affected by the amendment.

Idaho law has been written to maximize individual rights to choose and to control one's own destiny. Too many people do not take advantage of those rights. Failing to make those choices is your own fault, not discrimination.

Robert L. Aldridge is a Boise attorney in private practice. This guest editorial is not done on behalf of any organization. He is chairman of Tax and Estate Professionals of Idaho and past chairman of the Taxation, Probate and Trust Section of the Idaho State Bar. He has testified before the U.S. Senate Special Committee on Aging as an expert on guardianship/conservatorship and related fields. He has authored or co-authored bills in the Idaho Legislature for more than two decades in the areas of law discussed in this piece.

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