Kudos To Iowa

Ken AshfordConstitution, Godstuff, Sex/Morality/Family Values1 Comment

It's one thing when Massachusetts courts recognizes a constitutional right to gay marriage, but when it happens in the "middle America" state of Iowa, that's an entirely different thing:

The Iowa Supreme Court this morning unanimously upheld gays’ right to marry.

“The Iowa statute limiting civil marriage to a union between a man and a woman violates the equal protection clause of the Iowa Constitution,” the justices said in a summary of their decision.

The court rules that gay marriage would be legal in three weeks, starting April 24.

No doubt, social conservatives will try to "overturn" this ruling at the ballot box, with a amendment to the Iowa Constitution, as they did in California.  Andrew Sullivan reports that, because of onerous Iowa legislative rules, an amendment couldn't reach the Iowa ballot until 2012.  By then, of course, there will be lots of gay marriages already in existence in Iowa. (More on that here).

I read the Court's opinion, and it is well-written and sound.  The defendants (the County, trying to uphold the law banning gay marriage) argued that the ban did not discriminate on the basis of sexual orientation, because the ban did not even refer to sexual orientation.  The statute simply said that civil marriage can only be between a man and a woman.  Gay men and gay women could still be married, the County argued — they just couldn't marry someone of the same sex.  And since every man and every woman could be legally married, there was no gender discrimination either.

The Court didn't buy it.



I also like the way the Court addressed the County's argument that all it was trying to do was preserve the traditional understanding of "marriage".


In other words, the Court was saying that if the traditional understanding of marriage is discriminatory, then the argument that you are "preserving the traditional understanding of marriage" doesn't fly.  Discrimination is discrimination, whether it is traditional or not.

The County also argued that, even if the statute discriminates, the state has a legitimate interest in ensuring that children grow up in an optimal (i.e., mother/father) environment.

The Court responded by saying that the overwhelming scientific evidence shows that children fare just as well, if not better, when raised by gay married couples.

But it acknowledged that there is a smattering of well-meaning scientific evidence to the contrary as well.

But then it continued on saying essentially, "even if we believe the County's scientific evidence, the statute doesn't purport to do what the County says it will":



So out the window goes the child-rearing argument.

Next, the Court took a swipe at the County's argument that the statute banning gay marriage was necessary because it "promotes procreation of children":


And of course, banning gays from marriage doesn't really result in more heterosexual procreation.  So out the window with that argument.

The County's argument that the gay marriage ban was necessary to "promote stability in opposite-sex marriages" was met with derision by the Court.  How exactly, the Court asked, does excluding gays from marriage help keep traditional marriages stable?  The County of course had no response — another argument bites the dust.

The Court then address other aspects of the County's arguments, most notably the religious opposition to gay marriage.  The Court said, look folks, this is a statute that regards civil marriage.  Religion doesn't enter into it, from a consitutional standpoint.  And it shouldn't — separation of church and state and all that.  It added:


Slam. Dunk.

The Iowa court's opinion, by the way, is a good roadmap for the California court which is now reviewing the constitutionality of Prop 8 in that state. 

The bottom line is this: if the Constitution (state or federal) guarantees "equal protection" under the law, then the majority, through their legislature or by ballot initiative, cannot carve out exceptions.  When states start saying, "We guarantee equal protection….. except when applied to THIS class of people under THIS set of circumstances", then you don't guarantee EQUAL protection at all.[but see, Footnote 1 below]  

And once you cease to guarantee equal treatment under the law, you open the door to bring back slavery or do all kinds of unjust and unequal things.


Footnote below the fold…

UPDATE:  What's more, about 12 hours before the ruling in Iowa, Vermont's state House joined the state Senate in passing legislation to allow gay marriage in the Green Mountain State. The final vote was 95 to 52.

The Vermont measure will be vetoed by the state's Republican governor, Jim Douglas, though proponents remain cautiously optimistic that the legislature can override the veto.

FN 1.  An astute reader might look at the above and say:

"Wait a second.  We DON'T have equal protection, because we DO have laws which single out a class of people under a particular set of circumstances.  Example: a law which criminalizes child abuse discriminates againt a certain class of people, i.e., child abusers.  A law which makes it illegal to run a red light discrimnates against a class of people one could call "red-light-runners".  And so on.  So this 'equal protection' thing is BULLSHIT!"

My response to said imaginary astute reader is this: First of all, watch your language.

Second of all, you are not entirely wrong.  However, you can see that if you take the notion of "equal protection under the law" too far, you'll end up with a society that can have no laws at all.  Because once you establish a law, you "discriminate" against those people who violate that law, and violate the bigger concept of "equal protection".

But of course, we HAVE to have laws in order to function, don't we?

So when do we worry about "equal protection" and when do we ignore it? 

Basically, over the centuries, courts recognize that there are what's called "suspect classes".  These are, basically, classes of people based on inherit qualities (i.e., who you are), rather than on their actions (i.e., what you do).  So race is a suspect class.  Religious belief, too.  And so on.  These are undisputed "suspect classes".  The upshot of this is that, under the equal protection doctrine, no law can discriminate on the basis of, any suspect class.   For example, a law which makes it illegal for catholics to engage in child molestation violates equal protection, where as a law which makes it illegal for anyone to engage in child molestation does not.

Is sexual orientation a "suspect class"?  No.  Then again, there is an argument that "sexual orientation" is what courts call a "quasi-suspect class".

What difference does this make?  Well, let's back up.  It should be noted that laws CAN conceivably discriminate on the basis of race, nationality, or some other suspect class. 

 However, the burden on the government is VERY HIGH — it must show that the law is "CLOSELY related to a COMPELLING government interest".  Because of the high burden, there are very few laws which are permitted to discriminate against a suspect class.  There are very few times when a court has allowed a law to discriminate on the basis of race/nationality.  The most notorious example was the Korematsu v. United States case, which allowed the U.S. government to round up Japanese-Americans and put them in concentration camps.  Most view this as a dark moment in modern American history, and a mistake.

If, however, the law discriminates on a quasi-suspect class, the government can discriminate against that class if it is "SUBSTANTIALLY related to an IMPORTANT government interest".  Gender is a "quasi-suspect" class.  So the government can pass laws which discriminate on the basis of gender, but only if it can convince a court that the law is substantially related to an important government interest.  It's still a pretty high burden, but not impossible.  For example, back in 1982, the U.S. Supreme Court allowed Mississippi to have a publicly-funded women's-only college, even though it, technically speaking, discriminated against men.

Finally, if the law "discriminates" on the basis of one's activities (the child molestation, the running of a red light), the government must only show that the law is "REASONABLY related to a LEGITIMATE government interest".  This standard has the lowest government burden, and it is easily met.  (Example: Does the government have a legitimate interest in stopping car accidents?  Yes.  Is a law prohibiting the running of red lights "reasonably related" to that legitimage interest?  Yes.  Therefore, no equal protection violation).

Most criminal laws, since they don't discriminate based on sex, gender, etc., come under the lowest standard, which is why they are constitutional.

This, I hope explains, the complexity of "equal protection".  (There.  I just saved you the equivalent of a couple hundred dollars in law school tuition.)

It should be noted that the Iowa court applied the intermediate standard to gay marriage.  In other words, sexual orientation was treated as a "quasi-suspect class".  So the state's burden was NOT the highest — it only had to show that banning gay marriage was "SUBSTANTIALLY related to an IMPORTANT government interest".  As the court went through the County's arguments, it found that the government's interest (e.g., promoting procreation) was (a) not an "important" government interest and/or (b) the ban on gay marriage was not "substantially related" to that so-called important government interest.