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August 31, 2007

Same-Sex Marriage in Iowa

Yesterday an Iowa district court ruled that the state must allow same-sex marriage (PDF of the court’s opinion) under the Iowa Constitution’s Due Process and Equal Protection Clauses. It also struck down Iowa’s 2006 law establishing that marriage could only exist between a man and a woman.

The state plans to appeal the ruling to Iowa’s Supreme Court. Proponents of Iowa’s 2006 marriage law will seek to get around the ruling by amending the state constitution.

Complaints about judicial activists overruling laws which were actually approved by a majority of Iowans began about five seconds after the holding was announced.

A quick summary of the opinion’s treatment of Due Process and Equal Protection is in the extended entry.


Iowa’s Due Process Clause has the same language as that in the Fifth Amendment to the U.S. Constitution:

[N]o person shall be deprived of life, liberty, or property, without due process of law.

Iowa's version of Equal Protection is significantly different from federal Equal Protection. Iowa’s Constitution Article I, sec. 6 reads:

All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.

Plaintiffs, gay couples and their kids, used these two clauses to attack Iowa's refusal to issue them marriage licenses and the 2006 marriage law.

Their argument is that marriage is a fundamental right under the Due Process Clause. The state can only deny it unless it has a compelling governmental interest. Furthermore, according to the plaintiffs, they are being treated differently than straight couples. To treat similarly situated people differently, a law must have important governmental objectives and be substantially related to those objectives.

The opinion reads as pro-plaintiff from the beginning. I'll tell you what the court said about these arguments, but there are a few things I think the court ignored.

The court does not entertain the argument that marriage is by definition between one man and one woman. Instead, the opinion notes the way that marriage and its treatment under the law has evolved over the years. The court’s point is that the definition of marriage has been constantly changing; there is no more reason to freeze its meaning at this point in time than there was before 1967 when anti-miscegenation laws were conclusively shot down.

The court also holds that the state failed to show how prohibiting gay marriage would actually result in its claimed objectives of promoting procreation, stability for opposite-sex marriages, or opposite-sex marriage in general; encouraging child-rearing by mothers and fathers; or conserving private and public resources.

I tend to agree with the court that regulating gays is not a good way to get straight people to have kids and raise them in two parent homes or to conserve private and public resources. That's the Due Process argument.

The Plaintiffs also argue that, except for the new law, they meet all the requirements for a civil marriage in Iowa. The state argues in turn that the statute operates equally on men and women and that no discrimination is being applied to any class of citizens: all men are free to marry women and all women are free to marry men.

The court summarily deals with this argument:

[T]he U.S. Supreme Court in Loving [the anti-miscegenation law case] rejected an identical line of reasoning with regard to race and held that despite the Virginia law’s application to both white and black citizens, the statute nonetheless violated the Equal Protection Clause.

In Loving, proponents of the anti-miscegenation laws claimed that all whites are free to marry whites and all blacks are free to marry blacks. To them that meant that no discrimination was occurring when laws prohibited whites from marrying blacks. The court here (and in the other major gay marriage cases) point to Loving to disarm the argument that so long as every person is free to marry someone of the opposite sex, no discrimination is occurring.

There is a bit of judicial sleight-of-hand here. It is true to say that same-sex couples who want to get married are treated differently than opposite-sex couples who want to get married. But it is not true to say that gay men are being treated differently than straight ones; in fact, they're both free to marry any woman they choose.

So I'm not sure that the judge has correctly determined that Iowa's law discriminates on the basis of sex (which causes the state to have to pass a stricter test). It seems more likely that the law discriminates on the basis of sexual orientation. That type of discrimination needs only to pass rational basis review.

Knowing this, the judge spends the last portion of the opinion discussing why Iowa's marriage law wouldn't pass even the rational basis test. That part of the holding is highly suspect. Laws almost never fail to pass rational basis review. When they do, it is invariably because the law is patently motivated by an irrational prejudice against a particular group.

I expect that the Iowa Supreme Court will focus heavily on the question of whether rational basis or more exacting scrutiny should be applied to the law--unless the case gets mooted when Iowa adopts a marriage amendment.

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posted by Gabriel Malor at 04:52 PM

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