Thoughts on Iowa April 3, 2009

Thanks to work I did with a student two summers ago, I’ve had occasion to read all of the state Supreme Court decisions on same-sex marriage, so it’s interesting to compare Iowa’s decision (of which I have only read the summary) to those others.

First, the decision connects the decision with the best historical principles of the state:

Equal protection under the Iowa Constitution “is essentially a direction that all persons similarly situated
should be treated alike.” Since territorial times, Iowa has given meaning to this constitutional provision, striking blows to slavery and segregation, and recognizing women’s rights.

I remember explicit references in the New Jersey decision to its historical freedoms, etc. It is an interesting rhetorical move because it places the granting of such rights within the state’s narrative of itself, rather than as an aberration.

In discussing how they counteracted the argument that same-sex couples do not meet the threshold of being similarly situated as opposite-sex couples, the court said

The purpose of Iowa’s marriage law is to provide an institutional basis for defining the fundamental relational rights and responsibilities of persons in committed relationships. It also serves to recognize the status of the parties’ committed relationship.

I think some of the most interesting elements of these cases are how they discuss the purpose of the state’s involvement in marriage. For Iowa, as with many others, children are not mentioned, but rather that there is something beneficial to the state to encourage and recognize committed relationships.

To determine whether the classification of sexual orientation warranted a more demanding constitutional analysis, the court said it would have to meet four factors:

(1) the history of invidious discrimination against the class burdened by the legislation; (2) whether the characteristics that distinguish the class indicate a typical class member’s ability to contribute to society; (3) whether the distinguishing characteristic is “immutable,” or beyond the class members’ control; and (4) the political power of the subject class.

The court establishes: that gays and lesbians “as a group have long been the victim of purposeful and invidious discrimination” (note the inclusion of purposeful); that their orientation does not preclude them from contributing to society; that “sexual orientation [is] central to personal identity and that its alteration, if at all, could only be accomplished at the expense of significant damage to the individual’s sense of self”; and, that they have not gained enough power to “overcome the unfair and severe prejudice” that inhibits them.

The immutability question here is the interesting part here for me, as the court comes squarely down on the side of immutaibility, and on the importance of sexual identity to selfhood.

Having established that it merited further scrutiny, the court then had to determined “whether exclusion of gay and lesbian people from civil marriage is substantially related to any important governmental objective” based on the reasons the county offered:

(1) tradition, (2) promoting the optimal environment for children, (3) promoting procreation, (4) promoting stability in opposite-sex relationships, and (5) preservation of state resources.

For #1, the court got at the heart of this argument:

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.

Exactly.

#2 was easily swatted down; #3 is fun: “The court concluded the County’s argument is flawed because it fails to address the required analysis of the objective: whether exclusion of gay and lesbian individuals from the institution of civil marriage will result in more procreation.” Again, exactly: “dear, the gays can’t marry: let’s make some more babies to celebrate!” #s 4 and 5 were also summarily dismissed.

The court then went on to talk about religious arguments, and I think this one is fascinating, particularly since previous cases didn’t really bring up religion that much. Perhaps because this is Iowa and not godless Hawaii or New Jersey, but the court felt the need to address it:

Recognizing the sincere religious belief held by some that the “sanctity of marriage” would be undermined by the inclusion of gay and lesbian couples, the court nevertheless noted that such views are not the only religious views of marriage. Other, equally sincere groups have espoused strong religious views yielding the opposite conclusion. These contrasting opinions, the court finds, explain the absence of any religious-based rationale to test the constitutionality of Iowa’s same-sex marriage statute. “Our constitution does not permit any branch of government to resolve these types of religious debates and entrusts to courts the task of ensuring government avoids them.”

I mean, how refreshing: it’s the job of the courts to make sure that government gets out of religion, not into it.

Finally, the court declared the marriage statute “constitutionally infirm,” which I think is a fascinating way of describing it. It’s not unconstitutional, it’s constitutionally infirm — corporeally sick or even diseased.

I think what is most interesting about this decision for me is that it feels like there was a shift here from other cases (or maybe I’m reading into things and/or mis-remembering): instead of forcing same-sex couples to prove that they deserved this, the state was forced to prove how they didn’t deserve this, how the state benefitted from excluding them from this. I think it’s an important shift — essentially providing these couples with the standard of innocent before proven guilty.

Interesting times.