Idaho has an interesting history of occasionally using the power of government for or against religion. Fortunately, when all is said and done, we usually come back to the concept that the power of government should not be used to advance or target particular religions or religious dogma. And so it will eventually be with legislation like House Bill 710, which seeks to use religious beliefs to purge certain books from the shelves of Idaho’s school and other public libraries.

The Constitution that Idahoans adopted upon statehood in 1890 was replete with shameful discriminatory provisions targeted at the Mormon Church. Under Article VI, section 3, its members could not “vote, serve as a juror, or hold any civil office.” Over time, Idahoans came to their senses and removed these ugly constitutional provisions. We returned to the concept that the government should stay neutral in the religious realm–allowing religious freedom but not forcing religious beliefs upon the population.

The great majority of Idahoans trust Gem State librarians with book selection. Despite any evidence that they have violated that trust, religious zealots in the Legislature were finally successful this year in getting legislation passed to second-guess them. So much for keeping government decision-making closest to the people. Why trust locally-elected school and library boards to reflect community values when we can turn to the morality champions, Representatives Mike Moyle and Jaron Crane, to make those decisions?

Those exalted legislators had the guiding hand of Christian nationalist Blaine Conzatti and his morality police at the Idaho Family Policy Center to lay the groundwork. Based on his mistaken belief that public libraries were dishing out smut to kids, Conzatti launched his crusade against books with any sexual content that ran afoul of his religious views. He as much as admitted that HB 710 was primarily intended to intimidate librarians into self-censoring books that he deemed impure. He crowed that the $250 bounty, plus attorney fees and costs, for refusing to move targeted books would drive up liability insurance costs for libraries. Librarians have been fretting over the cost of trying to fend off the frivolous purge demands that we all know are coming.

There is one important lesson I’ve learned from over five decades of legal and political experience–there is usually a way to overcome adversity. There is a path to righting the damage that will result from HB 710. We just need to buckle down and make it happen.

Everyone who can should vote for reasonable, civil and pragmatic Republicans in the GOP primary election on May 21 and replace the culture warriors who have made our libraries dangerous conflict zones. Unaffiliated voters may register to vote in the Republican primary on election day. Additional culture war extremists can be voted out in the November general election.

The Open Primaries Initiative will be on the November ballot and it is essential that it be approved in order to break the stranglehold that extremists currently have over the electoral process in Idaho. That will eliminate a number of the book-banning, gay-bashing culture warriors from public office for the long term, while facilitating eventual repeal of the book removal law.

In the meantime, librarians must be on the lookout for a good test case to bring before the courts to test the application of HB 710. I’m confident that pro bono attorneys and expert witnesses will be found to defend a library’s refusal to take a worthy book off of the shelves. The party demanding the removal of the book will have the burden of proving the book is harmful to minors, whatever that means. Expert witness testimony will be important and costly for both sides. If the complaining party fails to prove the case for removal, it could face having to pay the library's costs and fees, in addition to its own. A hefty cost and fee award for a frivolous case could eliminate a vast number of the removal demands that HB 710 can be expected to produce.

So, despite the fact that Mr. Conzatti’s forces have won this chapter of the battle, the final chapter can have a happy ending where Idaho returns to the traditional concept that our government must remain neutral in the religious realm.

Before commencing work, every Idaho legislator must solemnly swear to support the Idaho Constitution. That is pretty much a no-brainer. Sad to say that in the recent legislative session we witnessed any number of violations of that oath. Instead of abiding by the requirements of Idaho’s Constitution, legislators often ignored or defied that foundational document.

The Idaho Supreme Court ruled in 2021 that voter initiatives and referendums stand on equal ground with the right to vote as fundamental rights of Idaho citizens. Any restriction on those rights will be subjected to “strict scrutiny” by the courts. That is, there must be compelling justification for imposing the restrictions. Many legislators simply don’t want voters to have the right to make their own laws with the initiative, or to veto laws they don’t like with the referendum. Idaho voters last used the referendum to veto the unpopular Luna education laws in 2012.

In keeping with its hostility to voter rights, the House passed House Bill 652, a clearly unconstitutional bill allowing signatures to be removed from initiative and referendum petitions after it is too late to get additional signers. The removal process was not secure, opening the door to fraudulent removals. Luckily, the bill died in the Senate.

Legislators were successful in requiring those who gather signatures for ballot measures to provide written and oral disclosures if they are being paid. Senate Bill 1377, which the Governor signed into law, requires the written disclosure on every page of the petition, plus certification under oath that oral disclosure was made. It also requires paid gatherers to wear a badge proclaiming his or her paid status. Gatherers who are not being paid must swear under oath that they are volunteering their work.

These restrictions are unconstitutional burdens on the ballot measure process. Dorothy Moon, the head of the extremist branch of the Republican Party, has falsely claimed that Reclaim Idaho pays its signature gatherers. Quite to the contrary, its Open Primaries Initiative is fueled by non-paid volunteers who believe that all Idahoans, regardless of party affiliation, have the right to choose their leaders. The last ballot measure where paid signature gatherers were used was the horse-racing initiative, which failed in 2018. Senate Bill 1377 is merely a flawed solution to a non-existent problem. It will not stand up in court when and if it is challenged for violating the Constitution.

Just as the legislative session was coming to a close, Representative Brent Crane threw a clearly unconstitutional bill into the legislative hopper. House Bill 753 was such a mishmash that it could not possibly have been enforced, but it caused severe heartburn for the agricultural and construction industries that rely heavily on immigrant labor. The bill would have made it a criminal offense “to enter this state directly from a foreign nation at any location other than a lawful port of entry.” That would only apply to someone who stumbled across the Canadian border outside of the Porthill border crossing. It may be that Crane was targeting those mythical Canadians that Dorothy Moon falsely claimed were crossing the border in 2022 to vote in Idaho. Although the bill would have been stricken down in federal court, it passed the House with a 53-15 vote. The Senate failed to act on the bill, saving the state a bundle trying to defend it in court.

There are too many unconstitutional bills to list here but we could add House Bill 521, a bill that violates Idaho’s constitutional prohibition against legislation that contains more than one subject. That conglomeration has been signed into law. House Bill 713 and Senate Bill 1347 were ditched when it was made clear to sponsors that both bills violated the Governor’s constitutional power to fill vacancies on the state’s district and appellate courts. And, of course, House Bill 710, which targeted libraries and librarians, is replete with constitutional concerns.

The question is, why can’t legislators restrain themselves from promoting and passing legislation that violates the Idaho Constitution? Some legislators claim the Attorney General will not answer their questions on constitutionality. The AG takes the preposterous position that he won’t give guidance where the constitutionality of a bill is in question. Constitutionality is often raised in debate but routinely ignored. The only people who will come out ahead are lawyers who can win big attorney fee awards against the state for successfully challenging unconstitutional laws.