Same Sex Marriage Now Legal in the Heartland

While Buzz was wasting valuable computer time on the Univac 3000 to set his lineup for fantasy baseball, I decided to read Varnum, et. el. v. Brien (the Iowa same sex marriage case.) With that said, I guess the question that comes to mind is whether Buzz or I have too much time on our respective hands.

The unanimous decision of the Iowa Supreme Court is 69 (I kid you not) pages long and is available at the Iowa Judicial Branch web site.


Here's what I found. I didn't intend for this blog to be this long or as in depth, but then again, maybe the Iowa Supreme Court didn't intend to write a 69 page decision, either. I also intended this to be an opinion piece, but it turned more into a law review article. We'll do the opinion thing at another time.

The Iowa Supreme Court ruled that the ban on same-sex couples marrying violates the equal protection clause of the Iowa Constitution. Equal protection clauses exist in the United States Constitution, and we assume, every state constitution. They basically grant all people the same rights or "equal protection" under the law.

In 1998, the Iowa legislature amended the Iowa marriage statute to state “[o]nly a marriage between a male and a female is valid.” Twelve individuals (six couples) challenged the law and said it violated the Iowa Equal Protection law. (They didn't say it violated the U. S. Constitution's clause. If the Iowa Court said it violated the U.S. Constitution, it is our understanding that the state could appeal to the United States Supreme Court. Now the case ends in Iowa, because the Iowa Supreme Court has the final say on the Iowa constitution.)

The couples claimed that they faced certain disadvantages due to the inability to obtain
a civil marriage in Iowa. These disadvantages and problems include the legal inability to make many life and death decisions affecting their partner, including decisions related to health care, burial arrangements, autopsy, and disposition of remains following death. They also claimed an inability to share in their partners’ state-provided health insurance, public employee pension benefits, and many private-employer-provided benefits and protections. They also explained how several tax benefits are denied.

The County of Polk (the defendant in the case) offered five primary interests of society in support of the legislature’s exclusive definition of marriage. The first three interests broadly related to the advancement of child rearing. The fourth interest raised by the County addressed the conservation of state resources, while the final reason concerned the governmental interest in promoting the concept and integrity of the traditional notion of marriage.

Conservatives should have known they were in for a bad day when, the Iowa Court stated its belief that the Constitution of its state was a "living and breathing" document and that time didn't stop at the time of its adoption in the early 1800s. Quoting the United States Supreme Court decision in the Texas Sodomy case, the Court wrote: “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” and as our constitution “endures, persons in every generation can invoke its principles in their own search for greater freedom” and equality.

In a further rebuff to the conservative argument of "original construction," the court quoted the late Justice Oliver Wendell Holmes, who poignantly said, “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply
persists from blind imitation of the past.”

After stating their intent to broadly interpret the equal protection clause of the Iowa constitution the court went into a long discussion as to the level of "scrutiny" it should apply. There are three levels of scrutiny a court can imply when determining whether a statute violates the equal protection clause. Strict scrutiny, intermediate scrutiny, and rational basis scrutiny.

The University of Missouri-Kansas City School of Law gives a good lay person's explanation of these levels of scrutiny.

Strict scrutiny is the toughest standard for a law to, as they say, "pass constitutional muster ." The government must show that the challenged law serves a compelling state interest and that the law is necessary to serve that interest. This standard is applied when a law attempts to discriminate against a suspect classification such as race, national origin, religion, alienage, denial or dilution of vote, interstate migration, access to courts, and other fundamental rights.

Intermediate or middle tier scrutiny applies to gender and illegitimacy. In this case, the government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest.

The final catch-all level is that of minimum or rational basis scrutiny. The government need only show that the challenged classification is rationally related to serving a legitimate state interest. All classifications not in the other two categories fall into the rational basis category.

The court sort of punts on the decision as to whether it should determine whether to interpret the law with the highest level of scrutiny when it writes: "Because we conclude Iowa’s same-sex marriage statute cannot withstand intermediate scrutiny, we need not decide whether classifications based on sexual orientation are subject to a higher level of scrutiny."

The justices totally reject the notion that the state's goal to protect traditional marriage can be a legitimate interest of the state. They believe this is circular reasoning.

They wrote: "A specific tradition sought to be maintained cannot be an important governmental objective for equal protection purposes, however, when the tradition is nothing more than the historical classification currently expressed in the statute being challenged. When a certain tradition is used as both the governmental objective and the classification to further that objective, the equal protection analysis is transformed into the circular question of whether the classification accomplishes the governmental objective, which objective is to maintain the classification."

The next rationale offered by the government was that dual gender couples provide optimal environment to raise children.

In a paragraph that's sure to anger conservatives from coast to coast, the court writes: "Plaintiffs (the same sex couples) presented an abundance of evidence and research, confirmed by our independent research, supporting the proposition that the interests of children are served equally by same-sex parents and opposite-sex parents. On the other hand, we acknowledge the existence of reasoned opinions that dual-gender parenting is the optimal environment for children. These opinions, while thoughtful and sincere, were largely unsupported by reliable scientific studies."

Again, that damn science gets in the way of the conservative agenda. Will those blasted scientists stop at nothing?

The court also wrote that if the marriage statute was truly focused on optimal parenting, many classifications of people would be excluded, (such as child abusers, sexual predators, parents neglecting to provide child support, and violent felons) not merely gay and lesbian people.

The court also did not buy the next reasons, the promotion of procreation. The court said the only "sole conceivable avenue by which exclusion of gay and lesbian people from civil marriage could promote more procreation is if the unavailability of civil marriage for same-sex partners caused homosexual individuals to “become” heterosexual in order to procreate within the present traditional institution of civil marriage.

The state's fourth reason to deny same sex couples the right to civil marriage was the promotion of the stability in opposite-sex relationships. The government offered no reasons that it does, and the court found none.

The fifth reason, the conservation of state resources, seemed to be a "throw away" reason by the government, and the court threw it away. The court said if the state wanted to "conserve state resources" under that logic more state resources would be conserved by excluding groups more numerous than Iowa’s estimated 5800 same-sex couples (for example, persons marrying for a second or subsequent time).

After finding that none of the state's reasons for enforcing or enacting the statute passed "constitutional muster," the court addressed the religious opposition to same sex marriage. They basically said civil marriage must be judged under our constitutional standards of equal protection and not under religious doctrines or the religious views of individuals.

So the bottom line -- Iowa joins Massachusetts and Connecticut as the only states to allow same sex marriage.