Is sodomy against the law in Idaho?
More to the point: If a law in Idaho violates the Constitution – as determined by the constitutionally created Supreme Court – is it still a law?
If you want the correct answer, don’t ask Kootenai County Sheriff Ben Wolfinger. And the fact that Wolfinger seems not to know, or maybe care, about the answers should give pause to anyone who thinks it’s swell that Wolfinger wants to go all judge, jury and executioner on the Boy Scout troop his office sponsors.
Wolfinger said last week that he’s not sure the Kootenai County Sheriff’s Office can continue its charter with the Boy Scouts, due to the Scouts’ recent decision to stop discriminating against gay kids. Wolfinger based this qualm, in part, on Idaho’s 1972 anti-sodomy law.
He did not base it, obviously, on the 2003 Supreme Court ruling in which anti-sodomy laws were struck down. In a nation of free men and women, the court ruled, intimate sexual contact is part of that whole liberty thing. It is not the sheriff’s business.
The sheriff has not gotten this message. He also said, in a recent interview, that he was basing his reluctance on his personal beliefs and the Bible, and insisted that he is not a bigot – as does everyone who wants to discriminate against gay people.
“That’s the last thing I am, is a bigot. I’m not discriminating against the people who are homosexuals,” he said in an interview published in The Spokesman-Review last week. “Christ associated with sinners, he just didn’t like the sin. That’s how I try to look at things: The Bible says it’s a sin.”
Are sheriffs enforcing the Bible now? Perhaps. In certain quarters of the alternative universe, the authority of county sheriffs is being hailed as a divine right. Around 400 sheriffs wrote to Vice President Joe Biden a few months back to let him know that they wouldn’t be enforcing any new gun-control laws (as though there were really going to be any of those). These sheriffs support or are members of the Constitutional Sheriffs and Peace Officers Association, a group that urges sheriffs to take it upon themselves to decide what laws they should and should not enforce. To these sheriffs, their narrow interpretation of one constitutional amendment is to be worshipped, and the rest of the ratty old Constitution is to be ignored.
“Even soldiers in the military are not supposed to blindly follow orders,” writes Richard Mack, leader of the group. “They are supposed to use their own moral compasses to determine right and wrong.”
Mack is a former sheriff in Arizona, where all sheriffs apparently learn to ignore the law. He has run for Congress as a libertarian and is an NRA Hall of Famer. He has written a book, “County Sheriff: America’s Last Hope,” and thinks that sheriffs are the only thing standing between good Americans and bad ones.
This notion – that county sheriffs are the ultimate authority against illegitimate federal authority – is seed corn for extremism. It flows right out of the wingnuttiest corners of the political spectrum, from Posse Comitatus to sovereign citizens to Christian Identity.
Fortunately, not all sheriffs are what Mack would call “faithful defenders of our freedom.” Some read the whole Constitution. One is Ada County Sheriff Gary Raney, who wrote this in an op-ed piece in the Idaho Statesman:
“I swore to uphold the Constitution and laws that we live under in this great nation. Those words were my promise that I would not use my own personal interests to decide what is right and wrong. I swore to work within our system of law and justice to fairly enforce what you, through your elected representatives in the Legislature and Congress, have decided should be the law of our land. Those laws are set upon a foundation of checks and balances, embodied in the separation of powers between the legislative, executive and judicial branches of government. When we forsake the law or disregard those checks and balances, we take the first step down the path towards anarchy.”
Wolfinger, to his credit, did not sign up with the Mack gang. Perhaps he took heat for that; he declined to discuss this with me. But he sure stepped into a noxious pile with the Boy Scouts mess, and that’s based on a similar misunderstanding of the law and his own role in enforcing it.
Idaho’s dumb, musty 1972 anti-sodomy statute sets a minimum five-year prison sentence for anyone “who is guilty of the infamous crime against nature, committed with mankind or with any animal … ”
I’m not sure what kinds of camping trips Wolfinger goes on, but to take that law and attach it to the new Scout policy seems strikingly ignorant. Scouting principles stand in opposition not merely to gay sex, but to sexual activity of any kind by young Scouts.
Which is to say nothing of the fact that the law is null and void. The ACLU has sent a little reminder to Wolfinger, in the hopes that he’s not out enforcing that – or other – unconstitutional laws.
“As a matter of law, policy and practice, it’s critically important for government officials to understand the laws that govern our society,” said Monica Hopkins, executive director of the ACLU of Idaho.
This is true even – or maybe especially – for the faithful defenders of freedom.
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