Friday, April 03, 2009

Iowa Marriage Truth and Knowledge

Well, bless Prof. Arthur S. Leonard at NYU Law...yet again. He already has a good analytic cut on this morning's Iowa Supreme Court decision (Varnum v. Brien) mandating same-sex marriage there.

Other resource: For more than you care to read, head over to Lambda Legal, who argued and won the case in the various courts. See the simple background here. The main page for the case has all the documents, including the decision.

In a surprising fit of common sense, according to the Leonard Link, Polk County Attorney, "John Sarcone, announced that his office would not seek a rehearing, so the court’s decision will take effect under Iowa procedural rules on April 24."

I add this this does not keep the wingers there from flipping. Previously, they had muttered about compounding the state law amendment passed 11 years ago (Section 595.2[1]) that added "Only a marriage between a male and a female is valid." Some legislators demanded a constitutional amendment, DOMA style.

Unfortunately for them, Iowa has relative rigorous, Massachusetts-style amendment requirements. There too doing so would require two consecutive legislative sessions approving the amendment in the same form. Then it would have to go to public vote and pass.

Practically, this means that it could not happen until at least 2012 or even later. By then of course the public would have three years of jolly marriages by ordinary folk who happened to be homosexuals. That would make such a pull-back a much, much harder sell.

The Des Moines Register reports that right after the court decision, "Senate Republican Leader Paul McKinley, R-Chariton, nonetheless called for an immediate move to amend the constitution."
"The decision made by the Iowa Supreme Court today to allow gay marriage in Iowa is disappointing on many levels," he said. I believe marriage should only be between one man and one woman, and I am confident the majority of Iowans want traditional marriage to be legally recognized in this state.

"Though the court has made their decision, I believe every Iowan should have a voice on this matter and that is why the Iowa Legislature should immediately act to pass a Constitutional Amendment that protects traditional marriage, keeps it as a sacred bond only between one man and one woman and gives every Iowan a chance to have their say through a vote of the people."
He might be advised to read the court decision, which specifically tore apart just such arguments from the government. The court found the law unconstitutional and the government claims of its necessity as without merit.

Leonard offers high praise to this "beautifully and clearly written opinion by Justice Mark Cady." The analysis breaks down each section of the 69-page decision, including the lengthy and highly legalistic discussion of judicial scrutiny. I am also quite impressed by the reasoning and language of the opinion. However, I direct you to the document and Leonard's dissection for the finest details.

Instead, I would note a few key points. First, as other state high-court decisions that legalized SSM, this one used Iowa's equal-protection statutes and principles to find barring SS couples from marrying as unconstitutional. Moreover, the unanimous, seven-member court found the government arguments defending the bar as untenable. Also, surprisingly, it jumped right into the indirect but important religious aspects of arguments pro and con.

Quote note: The following citations are from the decision. Page numbers follow each.

The six SS couples from different areas of Iowa sued, claiming the ban "violates certain liberty and equality rights under the Iowa Constitution." These included "the fundamental right to marry, as well as rights to privacy and familial association." [8] Related were claims that legislative and executive actions discriminated against them based on sexual orientation.

The county attorneys trotted out every tired cliché to try to justify the ban. That even included the wheezer that the homosexuals suing were not forbidden from marrying — they just had to marry a person of the opposite gender. The decision's comments on that include, "Viewed in the complete context of marriage, including intimacy, 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. Thus, the right of a gay or lesbian person under the marriage statute to enter into a civil marriage only with a person of the opposite sex is no right at all." [30]

It continued to note, "By purposefully placing civil marriage outside the realistic reach of gay and lesbian individuals, the ban on same-sex civil marriages differentiates implicitly on the basis of sexual orientation." [31]

The government was not so lame as to claim that homosexuality is a lifestyle or choice. The court acknowledged that the county attorneys admitted "sexual orientation is highly resistant to change. Additionally, 'sexual orientation forms a significant part of a person's identity.'" [44]

The real fun came in tearing apart the government's attempted defense of the necessity for the ban. These sections add considerably to the legal lore of SSM reasoning and may be the greatest value to the studied analysis by this court. These arguments are similar in legislatures and courts in other states.

Briefly, the government held that the ban was necessary:
  • To support the institution of different-sex marriage
  • To encourage procreation and continuation of humans
  • To provide an optimal environment for child rearing
  • To prevent additional financial burdens on the state
The court was not at all convinced on any of those points. If you read no other part of the decision, try to get to pages 51 through 63 for the analysis of these claims.

The decision notes the pull of the claim to promote "maintaining the historical and traditional marriage norm (as) one between a man and a woman." "This argument is straightforward and has superficial appeal." However, in the end, the decision concludes that "(t)he governmental objective identified by the County — to maintain the traditional understanding of marriage — is simply another way of saying the governmental objective is to limit civil marriage to opposite-sex couples." [52]

The decision also drew attention to the circular reasoning used. Only opposite-sex couples may marry. You are a same-sex couple. We are not discriminating by saying you cannot marry because you are not opposite-sex. "The approach is, of course, an empty analysis. It permits a classification to be maintained 'for its own sake.'" [53]

As for a mom-and-pop home being the only right one for raising kids, the court avoided the conflicting research claims. Both sides had studies and the court could find nothing to indicate that kids in same-sex parent homes suffered at all.

More important, if the state really wanted to ensure the optimal environment, the ban had nothing to do with that. Instead, why don't the laws "exclude from marriage other groups of parents — such as child abusers, sexual predators, parents neglecting to provide child support, and violent felons..." [56]

Repeatedly too, the decision asked the pointed questions many courts have avoided or not bothered with. For example on the child-rearing one, the court noted, "If the statute was truly about the best interest of children, some benefit to children derived from the ban on same-sex civil marriages would be observable." The justices found note. [58]

When they got to the promotion of procreation claims, the court seems to have had the most fun. They started by noting that the ban would have to "achieve that objective" of more procreation.

Instead, the decision reads:
Gay and lesbian persons are capable of procreation. Thus, the 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 briefs, the record, our research, and common sense do not suggest such an outcome. [59]
It went on that there was no relationship between the ban and increased procreation. In legalese, "...the classification is not substantially related to the asserted legislative purpose." [60]

Likewise, the justices could find no evidence at all that the ban "encourages stability in opposite-sex relationships. The County offers no reasons that it does, and we can find none." Also, on additional costs or tax losses to the state, the justices found the ban did not serve that purpose either. [60]

Most surprisingly to me though was the section that dealt so clearheadedly with religious attitudes. The government did not bring in Biblical arguments, which the court appreciated — "The County's silence reflects, we believe, its understanding this reason cannot, under our Iowa Constitution, be used to justify a ban on same-sex marriage." [63]

The decision noted that strongly held religious beliefs in various amici filings supported the ban or urged same-sex marriage. "This contrast of opinions in our society largely explains the absence of any religion-based rationale to test the constitutionality of Iowas same-sex marriage ban." [65]

The justices did nod slightly to religion though. They noted that the state constitution permitted various churches to define marriage as they see fit and to solemnize only those unions they want to approve. They concluded:
"In the final analysis, we give respect to the views of all Iowans on the issue of same-sex marriage—religious or otherwise—by giving respect to our constitutional principles. These principles require that the state recognize both opposite-sex and same-sex civil marriage. Religious doctrine and views contrary to this principle of law are unaffected, and people can continue to associate with the religion that best reflects their views." [66]
With all the evidence, the court found no constitutional justification for excluding SS couples from marriage. They also provided a warning that seemed to preclude civil unions. "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." [68]

This reminded me of the Massachusetts Supreme Judicial Court's attitude when legislators came back after the Goodridge ruling asking if it really, truly had to be marriage. It looks like in both states, that would be a yes.

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