« Greetings from the Critical Race Theory 20th Anniversary Conference | Main | Will work for . . . »

Friday, April 03, 2009

First Thoughts on Iowa Gay Marriage Decision

I have had a chance to quickly read the Iowa gay marriage decision.  Here are some initial thoughts (subject to correction or revision upon further reflection!).  First, people here that I've talked to are generally surprised that the court was unanimous and that it fully endorsed same sex marriage, not something like civil unions.  The court's unanimity, in my view, is a definite sign that the court wanted to maximize its institutional legitimacy by joining together, despite the fact that its members have disagreements in numerous other cases.  The court also reasoned pretty bluntly that civil unions amounted to treating gay people as second class citizens.  Second, regardless of one's view on the gay marriage issue, I think this is a well crafted legal opinion for several reasons.

One reason it's well crafted is that it's based solely on the state equal protection clause and the notion that laws that burden people based on sexual orientation deserve heightened scrutiny.  Thus, the result is broad in scope, but the reasoning is narrow and does not go all over the map addressing every possible legal theory that could support plaintiffs.  It reads like a legal opinion to me with some judicial minimalism, not a political statement, though others will undoubtedly disagree and the line between the two is never precise.  Another impressive part of the opinion is that it addresses the hardest issues in substantial ways, rather than bypass them or deal with them conclusorily.  For example, on the issue of immutability (whether sexual orientation is an unchangable birthright or malleable), the court admits in a lengthy discussion that we don't have definitive scientific evidence but says there's certainly sufficient evidence to show that changing one's sexual orientation is potentially damaging and/or difficult for many people.   Thus, the court says it's troubling to treat people differently based on such a largely unchanging characteristic. 

There's also an interesting discussion about whether courts should provide heightened protection to gay people because gay people lack political power.  The court admits that Iowa has a variety of laws that protect gay people suggesting there is not a complete absence of such political influence.  But the court says those laws don't show that gay people are now politically well protected.  In an interesting footnote, the court implies that the election of Barack Obama did not mean that African-Americans in this country are now fully equal in the political process.

One of the controversies in the case was that the district judge had excluded much of the state's evidence.  The Supreme Court says that was a mistake, and summarizes the evidence, but then still rules against the state.  This again though shows a level of equanimity.  In addition, the court proudly recites Iowa's history of progressive racial equality decisions in the 19th Century to support its approach.  Drawing on the state's heritage in such a way is what state constitutionalism is about.  At the same time, the court says that equality analysis cannot be based on tradition alone as our social norms do and must change, as the racial decisions demonstrated.  Lastly, the court addresses the state's justification that heterosexual marriage provides the best situation for raising children.  The court responded that the evidence here is unclear and therefore doesn't satisfy the state's burden under heightened scrutiny.  The court then does a detailed analysis of other reasons the state's argument on the raising of children issue is legally problematic.

I've read all the other state supreme court opinions on gay marriage and I think this one stands up pretty well in terms of legal quality, regardless of what side one is on.  The author, Justice Mark Cady, is also not considered a left wing judge by any means which may further enhance the ruling's influence especially since it comes from a "heartland" state.  Opponents of the decision here plan to seek a constitutional amendment but that's a long haul requiring approval in two state legislative sessions and a vote by the public.  It's not likely all that could take place before 2012 and the issue may have have faded by then somewhat.  We shall see.

Posted by Mark kende on April 3, 2009 at 02:26 PM in Current Affairs | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference First Thoughts on Iowa Gay Marriage Decision:


Technical correction, Mr. Wasserman -

Even if every state adopts SSM, the federal DOMA still has an effect, as it defines marriage as opposite-sex only for federal law purposes, such as social security and federal employee benefits and more.

Posted by: anonner | Apr 9, 2009 11:03:11 AM

Powers reserved to the states:
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

In my view, "under the laws of" requires a legislative enactment, because Congress was expressly reaffirming the powers reserved to the states and retained by the people under the Ninth and Tenth Amendments of the Constitution. In other words, in "Our Federalism", a state legislature may pass a gay marriage law and a state court may uphold it or adjudicate a matter pursuant to it, but that does not obligate any other state to recognize the effect of such a proceeding or a legislative enactment under principles of comity or the Full Faith and Credit Clause. If DOMA is valid federal law, then a state court certainly may not avoid it by striking down state legislation by interpreting its own state constitution in light of federal principles, federal law, federal legal scholarship, and federal cases, and then claiming there is an adequate and independent state ground for it to evade SCOTUS review. If state courts could do that to DOMA, then nullification is a valid argument. For a good discussion of the implications of nullification, see the following: http://encyclopedia2.thefreedictionary.com/Seccession

Posted by: Jack Krevins | Apr 4, 2009 5:26:55 PM

Jack Krevins asserts that DOMA limits the states' ability to define marriage to a certain portion of their governments. How bizarre. Where does that Act say anything remotely resembling that? (And even if it wanted to, could Congress do that?)

Posted by: joe. | Apr 4, 2009 4:58:24 PM

Mr. Wasserman,

Your reading of my post was selective: I did not say that the Supremacy Clause would fail to apply to the states, but that it would fail to apply to state courts. My argument is that DOMA limits the decision to create gay marriage to state legislatures. DOMA is federal law, so it trumps state constitutions.

Posted by: Jack Krevins | Apr 4, 2009 3:24:40 PM

Why would the Supremacy Clause fail to apply to the states? The Supremacy Clause merely means that federal law trumps state law. If there is no applicable federal law (such as a federal definition of marriage for all purposes), the Supremacy Clause is not applicable. DOMA permits Nebraska not to be bound by Iowa's decision to permit SSM, if it chooses not to be bound. If Nebraska agrees of its own free will to be bound by Iowa's decision, Nebraska does not need DOMA. If every state (eventually) recognizes SSM, DOMA remains "the law," but there is nothing for DOMA to do *by its own terms.*

Posted by: Howard Wasserman | Apr 3, 2009 10:43:11 PM

What about Congress' power to leave the "gay marriage" question to state legislatures when it passed DOMA? If every single state court acted as Iowa's did, then Congress' DOMA would mean nothing, and the Supremacy Clause fails to apply to state courts.

Posted by: Jack Krevins | Apr 3, 2009 9:52:46 PM

Today, after having read this opinion, I am particularly proud to be a native Iowan.

Posted by: Jason Kilborn | Apr 3, 2009 5:02:24 PM

The comments to this entry are closed.