Idaho AG’s Office, says “Family” not specifically defined by law – Marriage law is not a “Family” lawFeb 22nd, 2009 | By Jody May-Chang | Category: News
When the Nampa Recreation Center (NRC) used Idahoâ€™s marriage law for the basis of denying a same-sex couple and their 4-year-old son a “family” membership, they may find themselves at legal odds* with the State Attorney Generalâ€™s Office.
*Editor clarification: 02/24/09: The phrase “at legal odds” above is meant simply to illustrate a significant discrepancy. It is not intended to suggest legal action is, or will, be taken by the Idaho State Attorney General’s office against the Nampa Recreation Center or Mayor Tom Dale.
This drama unfolded in early February when Amber Howard and Rachel Dovel where shown the door at the NRC and told that they did not constitute a family and would not be entitled to such membership privileges.
The couple told PrideDEPOT.com that since they could not produce a marriage certificate, they could not be considered a family along with the rest of those who have obtained such privileges. They could, however, produce evidence of a domestic relationship since Howard is listed on Dovelâ€™s workplace health insurance plan as a domestic partner.
Nampa Mayor Tom Dale told several media outlets, including PrideDEPOT.com that family passes are issued “only to families as defined under Idaho law.” Dale also added that the city-managed center would “suffer financially” if couples like Howard and Dovel were awarded such memberships.
Daleâ€™s narrow definition of what makes a family is in lock step with Idahoâ€™s self-appointed family values czar, Bryan Fischer. Fischer, the voice behind the non-profit political website, Idaho Values Alliance says, “The Nampa Recreation has rightly rejected a â€˜family passâ€™ application for a same-sex couple, for the simple reason that the couple is not a â€˜familyâ€™ according to the Idaho constitution.”
“In fact, as an entity of the city of Nampa,” Fischer blusters, “the Rec Center is constitutionally prohibited from granting this kind of recognition, and would be in violation of Idahoâ€™s constitution.”
Fischerâ€™s membership in the far rightâ€™s anti-gay industry is well-known, and his use of scare tactics and misinformation have become legendary. Fischer unsuccessfully deployed the same scare tactic and mirrored the same argument in an attempt to bully the City of Moscow into denying domestic partner benefits for city employees.
Fischerâ€™s use of Idahoâ€™s marriage law to define a “family” is misleading, but it is part and parcel of what far right extremists do to score public relations points and get face time in front of news cameras.
PrideDEPOT.com contacted Fischer directly and asked him to back up his statement and precisely cite where it states that allowing this family to join NRC, as a family, would be a violation of Idaho Law. Fischer replied via email citing, “Article III, Section 28 says, ‘A marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.’ ”
Fischer hoists up the black and white image of a heterosexual marriage as the legal definition of what makes up a family and he has been getting away with this fabrication for too long.
Howard and Dovel never asked the City of Nampa to recognize them as a legally married couple, they approached the NRC as a family. They have the same financial, domestic and emotional dependencies as any other family, especially those with children.
PrideDEPOT.com contacted the Idaho State Attorney Generalâ€™s offices asking if there is a legal definition of “family” anywhere in Idaho Code or the state constitution.
In the letter received from Attorney General Wasdenâ€™s Constituent Information Specialist, Kriss Bivens Cloyd said, “The term â€˜familyâ€™ is not defined in one place for all purposes. While the term appears frequently in the Idaho Code, particularly in the statutes pertaining to probate, juvenile justice and child support, it is not specifically defined.”
Cloyd says, “The one example of a definition that I was able to locate is of the term â€˜immediate family.” The context for this designation is for the Board of Corrections to allow prison inmates to attend immediate family member funerals.
“The ACLU of Idaho concurs with the Attorney General that “family” is not defined anywhere in the state code,” says Executive Director, Monica Hopkins. “While Bryan Fischer quotes Article III, Section 28, which states, ‘A marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state,’ this constitutional amendment defines marriage, not family.”
“The Nampa Recreation Center has used marriage as the definition for ‘family’ but many other private and public institutions, including Anytime Fitness, Idaho Athletic Club and the YMCA, have used alternative definitions of family to recognize the diversity of family compositions, which may include blended families, elder parents living with children and co-mingled households,” said Hopkins.
“The Nampa Recreation Center would in no way be violating the state constitution,” asserts Hopkins.
Mayor to Mayor
As editor of PrideDEPOT.com, I had the opportunity of interviewing former Salt Lake City mayor, Rocky Anderson while he was in Boise for another event. Anderson served as mayor of Utahâ€™s capital city for eight years, from 2000 to 2008.
Anderson called Nampaâ€™s failure to recognize the Howard-Dovel family “outrageous, absolutely outrageous.”
I asked Anderson, who is also an attorney and avid human rights organizer, if he thought it was fair or legal for Dale, and others like Fischer, to use the state constitutional marriage amendmentâ€™s definition of marriage as valid justification to define what constitutes a family.
“No,” says Anderson, “This points out the horrendous implications of these kinds of constitutional amendments in the first place. That constitutional amendment does not govern who can come in and pay what dues at a recreation center.”
“They set their own rules,” Anderson said in a slightly elevated tone, “So to use the constitutional amendment as a justification for setting the rates and defining who gets in under whatever group rates, thatâ€™s just not honest.
“This is why,” says Anderson, “we need to have a registration system state wide for people to register as a couple that they are taking on certain financial responsibilities, that there is a certain level of dependence and commitment to each other. If you register, then someone can go to that registry and say yeah their a couple and if they have a child that they are raising this child together. They ought to come in.”
“There are ways around that, it is very, very simple,” Anderson said. “It is the moral equivalent and political equivalent to deny seating in a restaurant to an African-American.”
The world according to Mayor Dale and Fischer is one that has all the non-reality of the film “Pleasantville” where change and tolerance are something to fear and smear campaigns and threats are the only way to maintain a hold on a narrow view of the world. Fischer in particular has been getting away with this con game for too long. He has managed to create an image of himself as the final arbiter of “family values” and loves the media spotlight for his propaganda.
Fischer and Mayor Dale’s argument that a family is defined according to Idahoâ€™s Constitution is an outright falsehood!
Is Rec Center tax payer funded?
Throughout my discussion with Dale back in January, he kept asserting the Rec Center has always been completely self-supporting with donations and membership fees and no funding came from tax payers or city coffers.
There seem to be some contradictions on the Nampa Recreation Centerâ€™s very own website. The site clearly states some funding came from three specific sources of city money; Certificates of Operation, cable utility franchise fees, and municipal golf course revenues.
The first of city funds used for the Rec Center were in the form of Certificates of Participation (COPs). Although definitions vary among municipalities, generally a COP is typically a loan from the city. This is a common way cities finance construction projects they have an interest in without the need for voter approval of a bond measure. The city essentially leases the facility during the construction and then becomes the owner of facility when construction is complete.
For up to 10 years, until 2003, about 2 percent of the franchise fees collected from the local cable utility company, TCI Cable Communications, were allocated for the Rec Center.
Franchise fees are city imposed license fees charged to utility companies allowing them to operate within the cityâ€™s municipal boundaries and use city infrastructure. These fees are passed on to customers on monthly bills. These tax payer collected funds are city revenue and the city has the power to determine where these funds are spent. Some franchise fee critics call these charges a ‘tax in disguise.’
Another publically generated revenue stream for NRC, according to Dale, is from the Nampa Municipal Golf Course. Although Dale asserts the golf course is also self-supporting and not funded by taxes, the city does receive revenue from the golf course where an undetermined percentage goes to the Nampa Recreation Center.
Inclusiveness demonstrates good values and business practices
In stark contrast to the Nampa Recreation Center, the Treasure Valley YMCA has a long-time policy of recognizing that various households consist of actual families. The YMCA does not fall back on Idahoâ€™s narrow definition of heterosexual marriage to define a “family” unit.
The Caldwell YMCA, where Howard and Dovel have joined is comparable in membership numbers, about 13,000, to that of the Nampa Rec Center but with a much larger facility.
Jim Everett, YMCA CEO is passionate about being inclusive of all kinds of people and varieties of families. “Itâ€™s absolutely the right thing to do and that trumps business practice every time. We are about inclusion. I donâ€™t know how you can be inclusive when you start putting asterisks, Everett says, weâ€™re inclusive except for this group?”
“When people walk through our doors, the truth is, everyone looks the same in a t-shirt and a pair of shorts,” says Caldwell facility executive director, Scott Curtis. “People come in to build community to improve their health, spirit, mind and body. So why not have people come in, if that is what theyâ€™re interested in?”
Both Everett and Curtis say the majority of there memberships are from families, estimating about 75%, many of which are unmarried heterosexuals. They say the YMCA benefits from having more families.
Everett explains that at one time in history the YMCA, (Young Menâ€™s Christian Association), was just for Christian males between the ages of 18 and 25. It would appear that the YMCA has an interest in being inclusive, while also maintaining a successful financial bottom line.
“We could have stayed there, I am proud of the fact that we have continued to progress to recognize that there is a lot of good that can be done in the world when you bring people together,” he said.
You often see on bumper stickers, â€˜What would Jesus do?â€™ Everett says, “Jesus would say come on in!”
The YMCA is very closely tied to Judeo-Christian values but in an inclusive way, says Everett asserting that these are the same values that are part of every other mainstream religion. The YMCA is therefore not exclusively Christian.
There have been people who have been upset at the YMCAâ€™s decision to be inclusive of LGBT people and families but Everett contends people are free to make their own judgments and choose to belong or not.
“Today, inclusion is inclusion and as soon as you start putting conditions on it, what group is next?” says Everett. “One of the beautiful things about the Y is, I think we are the most inclusive organization in the valley from an age, economic, demographic standpoint. We firmly believe in ‘seek first to understand and then to be understood,’ ” Everett explains.
Everett has “no clue” just how many families in the Treasure Valley YMCA are headed by same-sex couples
“It is really not an issue!” he says, “I am not really aware of those kinds of things; I guess Iâ€™m kind of glad I am not. People are people.”
Not only is the Nampa Recreation Center and Mayor Dale wrong about Idaho Law, taxpayer funding, and unmarried families as a potential financial threat to the Rec Center, he is simply morally wrong about narrowly defining a family.
However, Mayor Dale does have the authority to change the Rec Center policy as long as he shows some backbone against the bullying tactics used by people such as Bryan Fischer.
Oddly enough, the Attorney Generalâ€™s Office is unable to give a definition of the term “family” however, Nampa Planning and Zoning offers a definition of “family” as, “One or more persons related by blood, marriage, adoption or a group of not more than three (3) persons not related by blood or marriage, living together as a single housekeeping unit in a dwelling unit.”
This Nampa Recreation Center discriminatory practice is a prime example of why passage of the Amendment to the Idaho Human Rights Act (IHRA) is so badly needed. What IHRA would do is prohibit this kind of public accommodation discrimination on the basis of sexual orientation and gender identity. Sadly this years attempt to pass the amendment failed in a 2/5 no questions asked voice vote in the Senate Affairs Committee last Friday February 20.
The committee took the easy road and gave voice to those who feel that LGBT citizens do not deserve equality in the Gem State. They heard only the voices of intolerance and contempt, to pull a quote from another Idaho struggle, “Idaho is Too Great to Hate.”
PrideDEPOT.com will have more on the Idaho Human Rights Act Amendment in the days and weeks ahead, and we will continue to keep our eye on the Nampa Recreation Center and be a voice for those being shut out by the bullies of intolerance.
Anyone who feels their constitutional rights have been violated, contact the ACLU of Idaho to fill out and intake form, call (208) 344-9750. If you do not live in Idaho, please visit the National ACLU website to locate your nearest local office.
Jody May-Chang now writes on "As I See It...Reporting from the front lines