Activist Iowa
The Supreme Court of Iowa now joins a number of other states in finding that not allowing gays to enter into the civil contract of marriage violates their state constitution. The court ruled on the matter unanimously.
Beginning April 24th, gay couples will be able to legally marry in the state.
The unanimous opinion spent a great deal of time noting that they understand fully the judiciary’s boundaries on this issue, and they understand fully how heated it is among the populace. However, they cannot shirk their duty—to declare whether a law in front of them is constitutional, or not. And they equally could not shirk the more or less transparent fact that this one wasn’t. They also seemed to add an addendum that a civil unions law probably wouldn’t be either.
Iowa’s gay marriage ban “is unconstitutional, because the county has been unable to identify a constitutionally adequate justification for excluding plaintiffs from the institution of civil marriage,” Cady wrote in the 69-page opinion that seemed to dismiss the concept of civil unions as an option for gay couples.
“A new distinction based on sexual orientation would be equally suspect and difficult to square with the fundamental principles of equal protection embodied in our constitution,” Cady wrote.
Andrew Sullivan provides a helpful recap of the case. I have yet to read it, but interestingly, it also seems to provide some compelling human insight that will no doubt be summarily ignored but is interesting to note nonetheless:
The court first held that same-sex couples are similarly situated with opposite-sex married couples even though they cannot have children together because they “are in committed and loving relationships, many raising families” and “official recognition of their status provides an institutional basis for defining their fundamental relational rights and responsibilities.” The court believed society would benefit “from providing same-sex couples a stable framework within which to raise their children and the power to make health care and end-of-life decisions for loved ones, just as it does when that framework is provided for opposite-sex couples.”[...]
Since marriage is “designed to bring a sense of order to the legal relationships of committed couples and their families” the court believed the only reason the law could treat same and opposite-sex couples differently is their “sexual orientation.” The court held the statute classifies on this basis even though the statute does not mention orientation because “civil marriage with a person of the opposite sex is as unappealing to a gay or lesbian person as civil marriage with a person of the same sex is to a heterosexual.” The current law, the court said, prevents gay or lesbian people from “simultaneously fulfill[ing] their deeply felt need for a committed personal relationship, as influenced by their sexual orientation, and gain[ing] the civil status and attendant benefits granted” by the marriage law.
And here’s a bit just to annoy Rojas:
The court held that sexual orientation discrimination should be subject to heightened scrutiny because (1) gays and lesbians have been the victims of discrimination; (2) no other state courts have found orientation relevant to a person’s ability to contribute to society and other state statutes treat sexual orientation as irrelevant; (3) sexual orientation is “central to personal identity” and “highly resistance to change”; (4) and gays and lesbians lack political power as evidenced by their failure to convince a legislature to redefine marriage.
Heh, that’s actually a pretty standard reading, but still.
All of that is pretty much a sidebar however to the plain truth that the court was simply unable to determine that there was any constitutional reason to bar gays and lesbians from the civil institution of marriage. And that’s the fact of it. Barring these anti-gay marriage amendments (and you can be sure one is already coming down the pike in the state legislature there), there’s simply no way to reconcile any given state marriage law with any given state constitution. You can’t pass a law creating a civil institution and then in practice bar gay people from it solely on the basis of their sexual orientation. It’s akin to making public libraries that black people can’t enter. You just can’t, and nobody, nobody, ought to be able to expect to, whatever “process” arguments you want to throw in the mix. They’re interesting in terms of political strategy, but irrelevant in terms of the question before these courts.
Now, no doubt, this’ll result in a constitutional amendment process, and just as likely as not, the explicit exclusion of gay people from marriage. But that too is as it should be. If Americans want to disenfranchise an entire class of human beings from a civil institution, every single one of them, at some point, are going to have to pull that lever for it. If you want to pass an unconstitutional law, you shouldn’t hope for the process to break down so it squeaks by. You should hope to change the constitution.
And then of course there becomes the question of what to do with Iowa (or whever’s) previous legal gay marriage. And then the question of how these newly amended state constitutions contend with the federal constitution, or recognition of other state laws, and on and on. And that’ll mean a lot more Prop 8s and the like all over the country—eventually, in literally every state. But then, also eventually, as in Massachusetts, when the fact of gay marriage begins to sink in, people are going to start to tire of the constant War on Equality, and within my lifetime, will give up the ghost on this one. That marching sound you hear is the steady hup-two of modernity.
Anonymous Liberal gets it:
More reax here (also, one errant but very interesting thought included there: this ruling is real, real good news for Mike Huckabee).
Comment by Brad — 4/3/2009 @ 4:13 pm
I have no reason to doubt that the Iowa state constitution is as the state’s justices say it is. Are you so sure that the same can be said for every other state’s constitution?
Comment by Rojas — 4/3/2009 @ 5:59 pm
I can be sure that the same can be said for Massachusetts, Vermont, Pennsylvania, and California (I’ve not gotten to Connecticut) where I’ve read (and posted some for your perusal) both the decisions and the constitutions and even some of the case law.
But yeah, I can go out on a limb and say that that would almost certainly be the same for every other state’s constitution (reminding you, btw, that my job in 2007/08 entailed, in part, quite literally reviewing all available materials I could find and collaborating on a report intended for general consumption on the gay marriage issue in America—not only did I read the decisions up to that point, but most of the case law, and the great bulk of state legislature debate in every state that had proposed gay marriage amendments). I can say that with some certainty because, at least that I’m aware, no constitution in America is without language that makes equal protection quite an explicit value, a case law that backs that up quite substantialy, and that your garden variety marriage laws make no attempt to rectify themselves with (which is why they’re all being challenged and, when it finally gets to the do or die point, failing).
Do you have an exception here I’m unaware of that you want to present?
Comment by Brad — 4/3/2009 @ 6:06 pm
Well then.
I think it may be time for me to bail entirely on the ideology of judicial restraint. I’ve been thinking that for some time, actually, but its increasingly a handicap to the rest of my agenda.
Comment by Rojas — 4/3/2009 @ 6:10 pm
Edited my above post to be more specific.
I don’t think there’s anything whatsoever wrong with an ideology of judicial restraint. But what you tend to talk about in regards to this issue anyway is not restraint, i.e. choosing not to do more than the bare minimum before them, but abdication, i.e. choosing to not even do that bare minimum.
In the case of Iowa, Massachusetts, Connecticut, California, et al, the question before the courts was not, at first blush, “should gay marriage be legalized”, but rather “is this law on appeal in front of us [the state's marriage statute] constitutional in light of this challenge, or not”. That is the most basic responsibility of any supreme court. To choose to punt on that question would, quite frankly, be…well, there’s no better way to say it than an abdication of duty. That it would be nice if this matter could be settled in the court of elected representatives and never have to go before a panel of judges is something we both agree on (though even that some would argue; I’m not really with them there)—isn’t really germane to the question of what do you do with a law that is, pretty much on the face of it, in violation of a constitution. That’s the question that MA faced, that VT faced, that CA faced, that CT faced, and that IA faced. When a law and a constitution are in direct and frankly pretty clear conflict, and you’re a judge, and the case is in your court, what do you do? That’s the question these judges are faced with.
You just can’t cleave that reality in service of any sort of political strategy, though your point as a matter of tactic and emphasis, is a very very good one, IMO.
Comment by Brad — 4/3/2009 @ 6:18 pm
But take heart. I really like the Volokh Conspiracy’s take (via, again, Sully), which takes your basic point and turns it a bit on its ear:
Comment by Brad — 4/3/2009 @ 6:29 pm