Comments on the way…
For now, check out a clip of Anderson 360 featuring Tony Perkins, who is president of the Family Research Council, and Mel White, a gay reverend and author of Stranger at the Gate: To Be Gay and Christian in America. Have fundamentalist Christians lost the culture war on issues like same-sex marriage, abortion, and stem-cell research?
I spent some time in student government during my junior year at Buena Vista University, serving on several committees, managing the Student Senate website, and most notably, being a thorn in most everyone’s side as a progressive voice that asked a lot of questions. I opposed giving $8,000 (of the university’s total bill of about $30,000) to the “drunk bus,” which transported students to and from the local bars three nights a week – this contribution, which was later approved, bankrupted Student Senate for most of the academic year. I challenged Student Senate leadership when they tried to pass a “student activity fee” to pay for the drunk bus, lied to the student body about what the money was for, and threatened to punish any senator who would not stand behind the lie.
I proposed holding regular open forums to discuss students’ concerns, one in particular to explore alternatives to the university’s policy prohibiting coed living arrangements. I criticized proposals to lower academic eligibility standards for student athletes. I supported increased funding for community service projects, multicultural groups, and “alternative” programming for party nights. And as you’ll see below, I called out Student Senate for being secretive and treating students as if they were stupid.
I wish I could say I did more. But frankly, we wasted a lot of time on Student Senate. The hardly revolutionary rap sheet above was enough to provoke an impeachment attempt. The claim was that I misrepresented my constituents when I voted against the drunk bus, but that fellow senator dropped the complaint when he discovered that I had in fact represented my constituents fairly and accurately, and had actually done more to solicit input than most senators.
As one of two resident advisors (RAs) on Student Senate, I apparently had some hand in provoking a long series of attempts to ban RAs from serving in student government. The argument was that students serving in residence life and student government were making and enforcing the same policies, thus creating a conflict of interest. There is not enough space here for a full explanation as to how insane that argument was. I believe the actual concern, revealed time and time again in senators’ rhetoric in support of a ban, was rooted in the assumption that RAs are somehow inherently anti-alcohol, and are generally incapable of thinking outside the stereotype of their RA position. In any event, we spent a significant chunk of the year discussing those proposals, without so much as a valid argument to support them, if that’s any indication of the group’s propensity to waste time.
At some point in the spring of the year, the question was raised, under what circumstances should Student Senate use roll call voting, enabling students to see how each senator votes? A lively debate ensued, during which I was told, in no uncertain terms, that BVU students don’t care and are too dumb to make sense of the results of roll call voting. It seemed that many senators worried that students would be unable to infer, for instance, that there might be complex reasoning behind a senator’s vote.
So, given that logic, if Senator A voted against giving money to a student organization that provides free daycare services for non-traditional students with children, students would inevitably infer that Senator A hates babies, shortly thereafter concluding that Senator A eats babies for breakfast, and that Senator A probably makes other babies watch – and the inevitable conclusions just flow from there! Students would be incapable of considering that maybe Senator A voted against the proposed funding because the group did not give a clear idea of how the money would be spent, in which case they could easily present their proposal at the next meeting and secure funding. Student Senate passed a motion prohibiting the use of roll call voting, presumably for the entire academic year (though, given our lack of organization, it’s certainly possible folks had no idea what they were really voting on – it wouldn’t have been the first time).
While I didn’t care much for roll call voting, and I didn’t find it necessary very often, I was very concerned that Student Senate would reject the practice outright, especially with such an arrogant rationale. So I organized a petition asking Student Senate to reconsider and got a few hundred student signatures (at a campus with just over a thousand students). I also debated the issue with another student in the campus newspaper (see below). I went to the next meeting prepared to present my petition, but that was thwarted by the student body president who facilitated a “punish the disobedient” session. Everybody got a shot at me, and in response, I calmly suggested that we ought to be open to criticism as an organization, including criticism from our own members.
The Student Senate censorship fiasco marked the beginning of the end of my experience with student government. Shortly after the point/counter-point exchange, I ran unopposed for secretary on a platform of improving our communication with students and providing more accurate and detailed information about what goes on in Student Senate meetings. The student body president then extended the deadline to run for office, and miraculously, the secretary position became the most sought after position on Student Senate, drawing an unheard-of five candidates. I lost that election, but thanks to support from progressive and multicultural groups on campus, was elected as a senator.
I was ready to have another go at student government, recognizing that it would still be an uphill battle, but at the very least, one for which I would be more prepared this time around. In the end, though, I decided that I could make more of a difference on campus outside of student government. I resigned at the first Student Senate meeting the following fall semester, and after the initial shock of hearing my resignation, I would guess folks were glad to see me leave. Below is the original point/counter-point from April 7, 2006, with a brief follow-up comment at the end.
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For Roll Call Voting – Kyle Payne
It is discouraging to see that such a fundamental democratic right has become a subject of contention in our student government. However, I also recognize that there are concerns about the impact of allowing students to see how their individual senators are voting. So I think it is important to state the case for roll call voting and address some concerns.
The primary reason I see for supporting roll call voting, when necessary, is that is supports fundamental purposes of student government – representing students while promoting citizenship and democracy. By informing students, we hold senators accountable to their constituents and ensure that students have the tools they need to make informed decisions during election time.
Before I address arguments against roll call voting, I should mention that roll call voting is not always necessary. However, the almost unanimous vote from Student Senate last month did not suggest reserving roll call voting for appropriate occasions – it threw the idea out completely. Second, roll call voting is only one of many ways Student Senate can and should fulfill its responsibilities of keeping students informed.
Concerns with roll call voting seem to be that students will misunderstand the information and jump to conclusions. This is a legitimate concern since roll call voting does not tell the whole story. However, we are fortunate to have a student body that can understand this basic fact and look for other sources of information to fill in the blanks.
While I sympathize with these concerns, I am troubled by the picture other senators have painted for me, suggesting that students are incapable of handling basic information or making informed decisions. I do not share in that dreary outlook on our student body.
There is a wealth of information available and necessary to support democratic discussion – the answer, then, is not censoring information, it is giving students enough information to use.
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Against Roll Call Voting – Taylor Jones
The issue of roll call voting in Student Senate is not as simple as some woudl make it seem. Many student who were asked to sign a petition recently to force full-time roll call voting were only told it would hold senators accountable. Students were told roll call voting would help students make more informed decisions. Sure it was easy for students to accept this as the solution to problems, but unfortunately they were not told the full side of the story.
First, roll call voting, despite the rumors, is not forbidden in Student Senate. According to Robert’s Rules of Order, the parliamentary style Student Senate follows, a roll call vote can be requested by any voting member at any time. This is not a regular practice, as it creates a lot of unnecessary paperwok. Roll call votes are generally only used in voting decisions that are very close as a means to double check for ties or possible changes to the accepted decision.
Second, there is a reason why roll call voting would cause mroe problems than it would solve. Students would see certain decisions made by senators and not fully understand the decisions made. For example, a senator may decide to vote against suggested funding for a group because he or she feels the group deserves more than the proposed funding. Unfortunately, with roll call voting, students would only see the “no” vote, and they would not get the full explanation of why the senator voted in such a way.
One of the arguments in favor of roll call voting is the idea that students on campus do not care about anything and that roll call voting will open their eyes to decisions being made. This sort of action not only belittles the intelligence of the BVU campus but appears to be the final solution on a list that was never fully explored.
Roll call voting is an unnecessary evil that will only hinder the process of Student Senate making their job more difficult.
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FOLLOW-UP (because I can): The purpose of the petition, as well as every statement I made on the issue, was to ensure that Student Senate could not ban the use of roll call voting for the entire academic year, which is precisely what the original motion was that passed. I never supported, or even mentioned, forcing “full-time roll call voting,” but insisted that roll call voting be an option when necessary.
Also, Taylor’s second-to-last paragraph is inaccurate, though I do give him credit for being creative. He took a criticism of my petition (“Students don’t care”) and my response to that criticism (“If that’s true, providing more accurate and detailed information may help students understand what is happening in Student Senate and their stake in it”), and re-packaged it to look like it was my original argument, i.e. “Students are dumb – let’s try to educate the poor, illiterate fools through roll call voting.” And far from a “final solution,” I intended occasional roll call voting to be a small part of a comprehensive plan to help students stay informed about student government and hold their senators accountable.
Taylor did not, as far as I know, go on to work for the McCain-Palin campaign.
Update (04.14.09):
I left out a couple option opponents to same-sex marriage have to overturn Varnum v. Brien, though not because I overlooked them – I simply believed that no one would go to such extremes. Perhaps I was being naive.
Citizens of my my hometown, and perhaps elsewhere in Iowa, have set up a petition to pressure Iowa Gov. Chet Culver to issue an executive order. Presumably the order would direct county recorders not to enforce the Varnum v. Brien ruling. An extreme measure, and an unlikely one, given Gov. Culver’s support of the Iowa Supreme Court ruling.
The other option I left out of the original post would be to appeal the decision to the U.S. Supreme Court. However, as the New York Times indicated on Sunday, it seems likely that the U.S. Supreme Court would keep its distance. It’s also questionable, since the Varnum v. Brien case dealt with a state constitution, whether or not the U.S. Supreme Court could take on the issue.
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Original Post (04.12.09):
Iowans who are unhappy with the Iowa Supreme Court’s ruling in Varnum v. Brien, which overturned an 11-year-old ban on same-sex marriage in the state, have two options to overturn the decision. They can a) ask their legislators to approve a constitutional amendment (twice, in two separate legislative sessions), which could then be put on the ballot as early as 2012, or b) vote in 2010 for a constitutional convention in 2011, which hasn’t been done in over 150 years and opens the door for other changes conservatives would prefer not to see.
Well, there is also c) go on living a happy, healthy life, and let others do the same.
I guess we can hope for that.
Neither of the first two options has any guarantees, and neither one could restore a ban on same-sex marriage for at least a few years. So, it would seem that time is on the side of same-sex couples. With plenty of time to plan weddings, same-sex couples in Iowa have ample opportunity to begin alleviating their critics’ irrational fears about the destructive effects of same-sex marriage.
Given the limited time available for conservatives to disrupt the shifting tide of public opinion, it is no surprise that the Iowa Family Policy Center and other absurdly-named conservative groups flocked to the Capitol on Thursday to push for a constitutional amendment. They left disappointed, as House Speaker Pat Murphy rejected Republican Leader Kraig Paulsen’s attempt to force debate on the matter, calling it “out of order” based on a joint rule between the House and Senate. With the legislative session wrapping up later this month, the consolation for same-sex marriage opponents seems to be, “There’s always next year.” Hopefully that sentiment provides comfort – they’re going to hear it a lot.
I disagree with the proposed constitutional amendment banning same-sex marriage, not because I disagree with amending the constitution, but because I disagree with scribbling all over it out of prejudice.
Upon reviewing opinion pieces in several Iowa newspapers and blogs, I have been amazed at the diversity of arguments presented in favor of same-sex marriage. Many speak of their experiences, direct and indirect, with same-sex partnerships, emphasizing how beautiful and special these relationships can be. Other writers note that they personally disagree with same-sex partnerships (for any of a variety of reasons), but they agree with the Supreme Court’s assertion that same-sex couples ought to have the same rights as opposite-sex couples. And others speak from a religious perspective (most of them Christian), arguing in support of same-sex marriage and urging others to appreciate love in all its forms.
On the other hand, arguments from the other, allegedly “pro-family,” side amount only to a religious belief that homosexuality is wrong and sinful, and a socially conditioned uneasiness toward homosexuality. (Neither argument, as indicated in the Iowa Supreme Court opinion, is relevant to a legal debate.) Opponents to same-sex marriage also present an implicit assumption that there is something inherently better about opposite-sex couples, whether of divine inspiration or a result of withstanding the test of time historically (assuming, I suppose, that same-sex partnerships are a recent innovation). But until we can prove that same-sex marriage poses a serious threat to society (to justify banning it), these claims are purely anecdotal. And in that regard, opponents to same-sex marriage have a lot of explaining to do before they even consider a constitutional amendment.
So, as far the discussion in Iowa is concerned, it appears that opponents to same-sex marriage are not the least bit ready to have a serious discussion on the subject. But assuming they could develop a reasonable legal argument against same-sex marriage (saying what exactly?), the nature of the proposed constitutional amendment is such that it’s not a question for “the people” to answer. We know what the Constitution says on the matter, as unanimously interpreted by the Iowa Supreme Court (you remember, those leftist hippies pushing their secret gay agenda?). Perhaps we ought to start the discussion there, and actually delve into the merits of the Supreme Court decision, before we run all willy-nilly into mob rule.
It’s been claimed in various comment boards to which I’ve contributed that I fear democracy. And at first, perhaps because it is often couched with a range of other claims that are actually derogatory, I was offended. Democratic values have always been very important to me, and virtually every political activity with which I’ve been involved has reflected those values. But I fear democracy? How could someone even suggest that?
Well, as it turns out, I do. I fear democracy of a particular sort. I fear democracy when it is applied in such a way that furthers oppression and injustice. If I was gay, I would not like the idea of my neighbors voting on whether or not I could marry my same-sex partner. Similarly, if I was black, I would not like the idea of the white folks in town voting on whether or not an employer could fire me based on my skin color. The very notion of voting on same-sex marriage suggests that there is some legitimacy to arguments against it. And frankly, I haven’t seen reasonable legal arguments against same-sex marriage, nor has the Iowa Supreme Court. So, in the absence of solid reasoning, something opponents to same-sex marriage don’t appear to be interested in, a constitutional amendment seems like it ought to be the last thing on our minds.
Whatever the next few years has to bring for same-sex marriage in Iowa, I can’t help but be pleased that fifty years from now, when I’m old and decrepit, we will no longer need to engage in this ridiculous “debate.” And I can share with my grandchildren distant memories of prejudice and anti-gay fearmongering from “back in my day.” I look forward to hearing them laugh at my stories, convinced that no one could possibly be that foolish.
Update (04.13.09):
—–> .pdf copy of an anti-SSM petition from today’s meeting <—–
During another town hall meeting today, I followed up with Rep. Steve King (R-IA) regarding his verbal attacks on the Iowa Supreme Court. Specifically, I asked if he felt it was responsible on his part to call for the resignation of all seven justices, in addition to calling on Iowans to rewrite their Constitution (banning same-sex marriage), when he had not yet fully read and understood the court’s opinion in the Varnum v. Brien case. Mr. King clarified that, at the time he made those comments (April 3, shortly after the ruling was announced), he was relying on the advice of legal counsel on his staff, who had reviewed the opinion.
Mr. King personally demonstrated a more sophisticated understanding of the Varnum v. Brien opinion in today’s town hall meeting, as compared to last week. When a woman in the audience proposed a separate “cohabitation contract” for same-sex couples (which I presume is what we call a “civil union”), Mr. King clarified that the Supreme Court foreclosed that option, concluding that it posed similar problems as excluding gays and lesbians from state-sanctioned partnerships altogether. He also discussed in greater detail the court’s conclusion that “equal protection can only be defined by the standards of each generation.” Mr. King’s skepticism about such claims was clearly still apparent, but he understood the arguments better, which I appreciate.
In the end, I could take a more radical stance and unleash a verbal attack on Mr. King – others certainly have. But I just don’t feel like that would be productive. (To be fair, there is an element of “heterosexual privilege” at work, leaving me less compelled to take more aggressive steps.) I am pleased to see so many Iowans taking an interest in this debate over same-sex marriage, but I hope we can do the necessary mental and emotional work to ensure that our debate is informed, productive, and civil. As I indicated in the following email message to Mr. King’s office, I believe elected officials play a vital role in that effort:
I would like to express my gratitude to Mr. King for taking my questions recently at two separate town hall meetings, in Sioux City and in Ida Grove. Our views on marriage and family life are very different, and I don’t expect that to change anytime soon. However, I value the opportunity to open up a dialogue, in this case regarding the recent Iowa Supreme Court ruling on same-sex marriage.
In the future, I hope Mr. King will look for opportunities to engage others who think differently than he does, particularly those whom he represents. We can all benefit from such a dialogue. Plus, I believe this pursuit of common ground sets a powerful example for young people, demonstrating that civil discourse can truly make us better thinkers, better citizens, and better people.
Mr. King’s recent attacks on the Iowa Supreme Court, which occurred shortly after the Varnum v. Brien ruling was announced, did not reflect an appreciation for civil (or informed) discourse, nor did his actions encourage such appreciation among others. Instead of setting a positive example, Mr. King encouraged Iowans with similar views to merely parrot his rhetoric and ignore the importance of asking questions, checking for understanding, and dare I say it, actually reading the Supreme Court opinion. I ask that Mr. King keep that in mind as he continues in his political career, especially when he expresses his views publicly.
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Original Post (04.09.09):
I don’t expect my representative, Steve King, to be an expert on constitutional law. I don’t expect him, as a heterosexual Christian man, to understand all the issues and challenges faced by gays and lesbians in our society, or completely understand all the reasons they often find what he says to be offensive. And I certainly don’t expect him to spend huge chunks of his time on a single issue – if the range in subjects discussed at today’s town hall meeting in Sioux City is any indication, it’s pretty clear Mr. King has a lot on his plate in Iowa, as well as in Washington.
What I do expect, however, is that Mr. King not attempt to speak authoritatively on an issue, as a representative of Iowans, when he doesn’t have the slightest idea what he’s talking about. That is irresponsible and embarrassing. And as we found in today’s meeting, it really makes debating important issues painfully difficult.
On the drive over, I contemplated the comments that Rep. King made almost immediately following Friday’s announcement of the Varnum v. Brien ruling, legalizing same-sex marriage. King called the ruling “unconstitutional” and “another example of ‘activist judges’.” For allegedly “molding the Constitution to achieve their own personal political ends,” King called for all seven Iowa Supreme Court justices to resign.
In a previous post, I criticized Republican leaders in Iowa, Rep. King in particular, for attacking the Supreme Court’s decision so quickly and without engaging the reasoning presented. I praised Gov. Vilsack, on the other hand, whose initial statement was fairly reserved, emphasizing the need to carefully review the decision before stating his position. Gov. Vilsack later, with guidance from the Iowa Attorney General, released a statement backing the Supreme Court decision, in spite of his personal beliefs against same-sex marriage. I find myself less concerned with what conclusion an elected official reaches and more interested in what route he or she takes to get there. And unfortunately, in Rep. King’s case, it seems like nothing but shortcuts.
As it turns out, I wasn’t too far off when I guessed that the Republican leaders hadn’t actually read the full 69-page opinion before condemning it. Rep. King openly admitted today – six days after his initial criticism – that he hadn’t read the full opinion. Maybe a third of it, he estimated. Later, when a member of the audience raised concerns about his tax money supporting marriage benefits for same-sex couples, Rep. King actually joked about having not read the opinion, asking, “If I read the rest of this, I’m really gonna be wound up, aren’t I?”
Yes, Mr. King. If you read it.
But frankly, I think more Iowans ought to be “wound up” by Rep. King’s willful ignorance. Don’t get me wrong – I appreciate the charm of down-home, folksy anti-intellectualism, but not when we’re discussing serious political issues, especially when they involve discrimination. So, after scratching off my list the questions pertaining directly to the court opinion Rep. King didn’t bother to read, I gave him an out. Before and after my question – short and sweet, “What is the legal basis for your argument against same-sex marriage?” – I encouraged him to withhold comment if he would prefer to read the entire opinion first.
I would have been okay with, “You know, I’ll have to take a closer look at that and get back to you.” I even would have gone for the cop-out answer of, “I believe that question deserves a more detailed answer than I can provide in the time remaining.” That’s cool. But it was not Rep. King’s day to be humble and think carefully about what comes out of his mouth.
Rep. King summarized the Supreme Court decision as asserting their role to “protect constitutional rights that were once unimagined.” I assume, based on the gasps from others in attendance, that Rep. King implied this to be some sort of outrage, judges overstepping their authority and such. In any event, this interpretation of Varnum v. Brien was enough for Rep. King to call for a constitutional amendment banning same-sex marriage in Iowa, along with a residency restriction. The full paragraph from which that snippet derives is as follows (full 69-page opinion here):
Our responsibility, however, is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time. The framers of the Iowa Constitution knew, as did the drafters of the United States Constitution, that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” and as our constitution “endures, persons in every generation can invoke its principles in their own search for greater freedom” and equality.
Even without the full paragraph, the notion of rights that were once unimagined being protected under the law is not exactly a radical idea. In fact, if you are reading this (and are a U.S. citizen), you are living and breathing the benefits of such protection. As I pointed out to Rep. King, just to give a couple examples, if we as citizens could only count on rights that were imagined centuries or even just decades ago, we would very likely still have legal racial segregation, and perhaps even legal slavery (I emphasize legal here because we still have illegal varieties of both in the United States). And of course, this question of whether or not a right is imaginable seems irrelevant to the process of judicial review. If it’s brought up in a lawsuit, consider it imaginable.
Rep. King referred to a series of U.S. Supreme Court cases, most notably Lawrence v. Texas (2003), which overthrew a Texas anti-sodomy law, and expressed concern about a “progression” of cases that undermined the government’s ability to legislate morality.When asked if he was concerned about the Iowa Supreme Court setting up a “slippery slope,” paving the way for legalizing currently illegal pairings (e.g. polygamy, incest), Rep. King responded, “The Iowa Supreme Court has declared they can imagine anything to be a right.”
That’s right, folks. Anything. Better scrap the judicial branch altogether, eh?
Regarding Varnum v. Brien, Rep. King told his audience that the Iowa Supreme Court declared that Iowans (presumably just the heterosexual ones) have “no vested interest in protecting marriage.” For this comment, I will commend Rep. King for at least getting it close to right – having not read the opinion, he made a good guess. The Iowa Supreme Court did not declare that Iowans don’t have a vested interest in protecting marriage; in fact, it’s not far off to call the Varnum v. Brien decision a protection of marriage (injustice puts a damper on things), as well as a protection of the Constitution. They did, however, assert what I can only hope Rep. King will soon realize – excluding same-sex couples from marriage does not “significantly further any state interest.”
Rep. King will be stopping in my hometown next week, and I look forward to visiting with him again. I hope, if he plans to discuss same-sex marriage at all, that he will have read and understood the Iowa Supreme Court’s opinion in Varnum v. Brien. That foundation will make a world of difference for those in attendance, and it might stir up some provocative dialogue. Perhaps most importantly, it will help Rep. King send a message to his constituents that, in addition to being a charismatic and talented public speaker, he cares about their concerns enough to get informed and come to a town hall meeting prepared.
The recent Iowa Supreme Court decision on same-sex marriage raised an important legal question about the notion of protecting tradition for it’s own sake. How much significance ought the maintenance of cultural traditions be granted when weighing questions of constitutional law? Under what circumstances should a particular cultural tradition be prioritized over legal norms such as equal protection?
In the Varnum v. Brien case, the County argued that the state ban on same-sex marriage (in the form of the 1998 Defense of Marriage Act) promotes the “integrity of traditional marriage” by “maintaining the historical and traditional marriage norm ([as] one between a man and a woman).”
The Iowa Supreme Court rejected this argument, concluding that the County offered “no particular governmental reason underlying the tradition of limiting civil marriage to heterosexual couples,” and as a result, the argument could not stand. Without that underlying reason, it’s a circular argument:
“Thus, the use of traditional marriage as both the governmental objective and the classification of the statute transforms the equal protection analysis into the question of whether restricting marriage to opposite-sex couples accomplishes the governmental objective of maintaining opposite-sex marriage.”
Other arguments behind “protection of traditional marriage,” as I discussed in a recent post, included the “promotion of an optimal environment to raise children,” “promotion of procreation,” “promoting stability in opposite-sex relationships,” and “conservation of resources.” The court, in meticulous fashion, debunked each of these myths, and ultimately concluded, “If gay and lesbian people must submit to different treatment without an exceedingly persuasive justification, they are deprived of the benefits of the principle of equal protection upon which the rule of law is founded.” In effect, the ruling legalized same-sex marriage in Iowa.
There appears to be little room for debate on the latter arguments concerning procreation, child-rearing, tangible effects on opposite-sex relationships, and conservation of resources – the research is very clear in each of these regards, and there were few, if any, questions left lingering by the Iowa Supreme Court. However, I believe this argument for “protecting tradition,” however faulty in its logic, may be the primary source of controversy in the weeks and months ahead.
On a related note, the Iowa Supreme Court addressed concerns about protecting religious traditions, but perhaps in a way that is easily misunderstood. The Court asserted, “[C]ivil marriage must be judged under our constitutional standards of equal protection and not under religious doctrines or the religious views of individuals. This approach does not disrespect or denigrate the religious views of many Iowans who may strongly believe in marriage as a dual-gender union, but considers, as we must, only the constitutional rights of all people, as expressed by the promise of equal protection for all.” This position actually does more to protect religious traditions than hurt them by maintaining a separation of church and state.
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PROTECTING TRADITION FOR IT’S OWN SAKE
The argument for protecting tradition for it’s own sake suggests that the courts ought to uphold an unjust law because overturning it would produce such outrage, disorder, and similarly adverse circumstances in society. In Varnum v. Brien, for instance, the argument would be that, however unjust, a ban on same-sex marriage must stand if the people are unlikely to accept a change in the law. The unjust law would stand, then, presumably until the people, through their legislators, passed a new law allowing same-sex marriage. (This is where a lot of the rhetoric on “judicial activism” and judges “creating new laws” seems to come from.)
The obvious problem with this approach is that “protecting tradition” in the American legal system has always oppressed certain groups to the benefit of others – in fact, that appears to be the only basis behind protecting tradition for its own sake. There was no legal justification, besides “protecting tradition,” to segregate schools, restrict women from participating freely in business and politics, or make people pay or take a test to be allowed to vote. And barring some mystical human rights utopia in the near future, this tradition-oppression phenomenon will likely continue.
Furthermore, talking about “tradition” as an abstract concept is useless here. In context, we see that the “traditions” to which we refer are fundamentally unjust (e.g. sexist, racist, classist). In Varnum v. Brien, for instance, we saw the Iowa Supreme Court challenge a tradition that privileged heterosexual people over homosexual people for no legitimate reason. “Protecting tradition for its own sake,” then, is nothing more than a euphemism for preserving an unjust power structure. If it were anything more, we would be able to identify that “underlying reason” that eluded the County in Varnum v. Brien.
Perhaps I’m being too much of an idealist, failing to consider the consequences of such top-down decision-making, as exemplified in Varnum v. Brien. The fact that Republican leaders, who have historically (in Iowa and around the nation) centralized power in the hands of commanders of state and capital, to the disadvantage of the other 95% of the population, are expressing populist sentiments on the same-sex marriage issue is laughable. That hypocrisy aside, though, Republicans do have a point – folks get upset when judges rule against the status quo. I can’t help but wonder, though, if that isn’t the nature of being a judge in a constitutional republic – standing up to the “tyranny of the majority.” That tradition, one of justice, seems like the one we really ought to be hanging onto.
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CRITICISM C/O “CONCURRING OPINIONS”
Nate Oman, an assistant professor of law at the College of William & Mary, recently posted a criticism of the Iowa Supreme Court’s apparent dismissal of protecting tradition for its own sake. He argues that a decision like Varnum v. Brien is less legitimate because it lacks “widespread consent” and may “threaten legal stability by cutting the law off from a deep source of intrinsic legitimacy.” Drawing from Edmund Burke, Oman argues that the fact that “one could not articulate a simple and rational justification for an ancient practice” is no reason to abandon it.
Oman’s first point on the importance of law being rooted in tradition for the sake of “widespread consent” and “intrinsic legitimacy” is relevant. But it does not offer up any justification for upholding an unjust law, except to avoid conflict between law and culture. What is missing from this criticism is the recognition that “justice delayed is justice denied.” The conflict (“between justice and culture,” you might say) is already playing out in the lives of gays and lesbians – continuing to ignore that conflict is no more just, or even practical, than avoiding the conflict over a new law. Even outside the realm of life-and-death justice issues, an argument for tradition, without some underlying reason, has no place in the courtroom. Politicians, on the other hand, can yammer on about it all day and pander to “traditionalists” all they please – that is, to some degree, in their job description.
Furthermore, on Burke’s point (via Oman), I would agree – we, in our finite and culturally mediated wisdom, have no business dismissing ancient practices because we do not understand them. We can disagree about particular cultural practices while still respecting others’ right to practice them; in fact, we have a long history of this sort of pluralism in the United States. Where I would draw the line is the point at which a cultural practice becomes unjust (female genital mutilation is a good example). In such a case, we have a moral responsibility to understand the merits of such a practice enough to justify the injustice inherent to it – and if we can’t, then it’s got to go.
Privileging opposite-sex marriage over same-sex marriage, no matter how well-established, is a tradition that deserves to be on the way out, the sooner the better. I would rather have seen the ban on same-sex marriage overturned as the result of Iowans recognizing the beauty of same-sex partnerships and rallying together in support of marriage equality, instead of the Supreme Court figuring it out for us. But I see no reason to withhold justice from gays and lesbians any further.
Update (04.07.09):
BIG NEWS: Vermont follows Iowa’s lead, legalizes same-sex marriage
Gov. Chet Culver issued a statement of support for the Supreme Court decision
A condensed version of my arguments from this post in today’s Sioux City Journal
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Original Post (04.04.09):
Now that I’ve had plenty of time to read the full 69-page Iowa Supreme Court opinion in Varnum v. Brien, which effectively legalized same-sex marriage in Iowa, overturning the 1998 Defense of Marriage Act, I feel much more confident about the decision and the debate that is likely to ensue among Iowans. As Iowa Attorney General Tom Miller recently noted in a statement, the Supreme Court opinion was “clear and well-reasoned,” and consistent with equal protection under the Iowa Constitution.
Don’t get me wrong, I immediately agreed with the conclusion in much the same way that someone opposing same-sex marriage might have immediately disagreed. But if that’s as far as we go, we’re wasting our time. What matters in this debate, insofar as we’re talking about equal protection for same-sex couples, is the legal reasoning, not merely the conclusion. So, I think it is vital, for one, that every Iowan actually read the opinion, or at least the summary, so they understand why banning same-sex marriage is unconstitutional. And secondly, I think we need to remember the parameters for this type of legal debate.
In the interest of helping things along, I will briefly discuss the legal arguments in Varnum V. Brien, identify two common arguments against same-sex marriage that are irrelevant to the Supreme Court’s decision, and close with a few comments on ground rules for the ongoing debate over same-sex marriage.
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Note: For a more articulate and detailed analysis of the court’s opinion, and its implications for the ongoing debate, check out WordInEdgewise, Constitutional Law Prof Blog, Dissenting Justice, and Family Fairness (which, because most groups with “Family” in their name tend to define the term quite narrowly, I mistakenly assumed was a conservative blog).
Other links of interest:
On church and state issues, Feminist Law Professors
On “judicial activism,” Dissenting Justice, Constitutional Law Prof, and You Are Here
On slippery slopes, Eugene Volokh and Dissenting Justice
On empathy in court (and in the media?), WordInEdgewise
And finally… Louis CK on gay marriage
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THE ARGUMENTS
The legal arguments presented against same-sex marriage in Varnum v. Brien were nothing new – straight folks think that it hurts “traditional marriage,” endangers children, threatens our society’s ability to reproduce, and destabilizes heterosexual relationships. But under the slightest bit of scrutiny, all these arguments collapse for a variety of reasons (usually because legally they are under-inclusive and/or over-inclusive). The Supreme Court went above and beyond the call of duty, meticulously evaluating these arguments to reach a final decision on Varnum v. Brien – I think they could have easily wrapped it up in fewer than 69 pages.
When all those arguments fall apart, as they inevitably do, what are we left with? A religious belief that homosexuality is wrong and sinful, and a socially conditioned uneasiness, or even fear, toward homosexuality. The trouble is that our Constitution was never designed to support discrimination because a group fails to fit within a narrowly-defined religious worldview, or because they give someone else the “heebie jeebies.” As a matter of principle, Americans believe in equality and justice. We might debate about how to put these concepts into practice, but we don’t negate them, and we absolutely do not vote to decide if we will apply them.
I respect that various religious groups, Christians in particular, do not believe homosexuality (and thus, same-sex marriage) constitutes moral behavior. That’s fine – I disagree, but I respect your right to practice your faith. And since civil marriage is separate from marriage in whatever spiritual way you would like to define it, the Supreme Court’s decision puts no limitations whatsoever on your practice. As indicated in the ruling, the Supreme Court is protecting religious groups just the same as same-sex couples:
“We, of course, have a constitutional mandate to protect the free exercise of religion in Iowa, which includes the freedom of a religious organization to define marriages it solemnizes as unions between a man and a woman… [C]ivil marriage must be judged under our constitutional standards of equal protection and not under religious doctrines or the religious views of individuals. This approach does not disrespect or denigrate the religious views of many Iowans who may strongly believe in marriage as a dual-gender union, but considers, as we must, only the constitutional rights of all people, as expressed by the promise of equal protection for all.”
Secondly, while this argument against homosexuality (and thus, same-sex marriage) is rarely made explicit, it bears mention. That homosexual behavior creeps you out as a straight person – makes you uncomfortable, uneasy, fearful, nauseous, etc. – is not a legitimate argument against homosexuality (or same-sex marriage). Neither is the general sentiment, “I believe marriage is between a man and a woman.”
You can believe all you want, feel all you want, and certainly fear all you want. But when it comes to equal protection under the Iowa Constitution, we (in this case, represented by the courts) are not allowed to make legal decisions based on prejudice. There must be some compelling interest – and since we are talking about the institution of civil marriage, it must be a state interest – that justifies excluding gays and lesbians. And as the Iowa Supreme Court discovered, upon examining the evidence meticulously, there isn’t one (or, to be more specific, Polk County did not provide sufficient evidence of one).
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THE ONGOING DEBATE
The strange part, given the strength of reasoning behind the Supreme Court’s unanimous decision (seriously, read the opinion), is that all we seem to hear from Republican politicians in the state is how the Iowa Supreme Court pulled this ruling out of left field, with no regard for the Iowa Constitution. And since that bit about the three branches of government being equal may have simply been a suggestion, we see the claim that “equal protection,” rather than being interpreted by the courts, ought to be defined by the majority at the ballot box (emphases mine).
Senate Republican Leader Paul McKinley (R-Chariton):
“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…. 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…”
Republican Party Chairman Matt Strawn:
“Once clear that Iowa’s marriage law was under attack by the courts and outside interest groups, majority Democrats had every opportunity to advance legislation removing the politics from protecting marriage and placing the decision directly in the hands of Iowa voters.”
Republican Bob Vander Plaats:
“On an issue of this monumental importance to the very foundation of our society, I believe a vote of the people is necessary. I hope the General Assembly will take the required steps to give Iowans a voice is this process on the most basic of issues – and that Governor Culver will take a leadership role to let all Iowans express their opinion.”
Congressman Steve King (R-Sioux City):
“This is an unconstitutional ruling and another example of activist judges molding the Constitution to achieve their personal political ends… If judges believe the Iowa legislature should grant same sex marriage, they should resign from their positions and run for office, not legislate from the bench.”
I was upset, though certainly not surprised, by the statements from Republican leaders. And given the praise to the Supreme Court expressed by Democrats, especially the joint statement from Senate Majority Leader Mike Gronstal and House Speaker Pat Murphy, I was initially upset by Democratic Governor Chet Culver’s fairly blase response:
“The decision released this morning by Supreme Court addresses a complicated and emotional issue, one on which Iowans have strong views and opinions on both sides. The next responsible step is to thoroughly review this decision, which I am doing with my legal counsel and the Attorney General, before reacting to what it means for Iowa.”
What I realize now, though, is that Gov. Culver actually had the right idea. What Republican leaders demonstrate in their responses, in addition to disregard for the Constitution and the judiciary branch’s role of interpreting it, is a failure to engage the reasoning applied by the Supreme Court in their decision. One has to wonder if Republicans actually read the entire Supreme Court ruling or merely jumped at the attempt to spout off against same-sex marriage immediately after hearing the decision.
But in Gov. Culver’s case, he recognized that not everyone is going to agree, of course, and also that they don’t have to – we can, in fact, protect the rights of gays and lesbians (and certainly other groups) without endorsing any particular lifestyle. I fail to see, despite the abundance of conservative rhetoric on the subject, what disadvantage or burden, or even direct impact, same-sex marriage has on heterosexual couples, or heterosexuals in general. And again, from a legal perspective, the means (the reasoning) bears much more significance than the end (the outcome), so holding off on a detailed response makes sense (providing time to read, think, and stuff like that).
This conflict over alleged “special treatment” for a disenfranchised group, or for that matter, so-called “activist judges,” is nothing new. We have seen it throughout the history of American civil rights law anytime dominant groups are asked to recognize the humanity of subordinate groups. And unfortunately, due to this political context, before we can begin a serious debate in Iowa, and perhaps set the tone for the rest of the country, we must put a lot of work into establishing and maintaining ground rules. But we do have an opportunity, with some effort and discipline, to make some real progress in this state in serving justice and quality (principles we tend to value, on paper at least). The Iowa Supreme Court has certainly given us a push in the right direction.
It’s been about a year since I posted on a Congressional hearing assessing the effectiveness of abstinence-only sex ed programs. As you may recall, the hearing, headed by Rep. Henry Waxman of California, featured statements from public health officials, sex educators, and medical professionals to the effect that abstinence-only programs kinda don’t work. And really, when one considers the “research” supporting them, it would seem that these programs were never really designed to work.
With the recent “victory” over abstinence-only programs in the form of a $14 million cut to CBAE in the omnibus appropriations bill (which still leaves $162 million for abstinence-only programs this year, as well as a 162 million-to-zero margin over comprehensive sex ed), it seems like a good time to revisit the issue. But first, a few links:
Clearly, even in this new and fairly progressive administration, it’s still going to be an uphill battle to achieve accurate, age-appropriate, and comprehensive sex education for young people in the United States. I read an editorial today praising President Obama’s support of family planning, and I sympathize – it’s good news. But is it great news? Something to celebrate? It seems like the first of many, many baby steps to me.
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My comments in response to “Family planning financed once again” in The Tack at Buena Vista University:
I agree with you regarding the significance of family planning, whether it comes in the form of comprehensive sex education, public health initiatives, or increased access to birth control and medical services (including abortions, unless the pro-life folks prefer the back-alley approach).
On the other hand, I think we ought to be careful not to celebrate too early. The “sex ed” curriculum you mentioned in your article is still predominantly abstinence-only across the country, due in large part to the discrepancy in federal funding between abstinence-only programs ($162 million in federal funds this year, after the recent $14 million cut) and comprehensive sex educations programs ($0 in federal funds, at least until the REAL Act passes, but it will probably die in committee again).
With all due respect to abstinence (which is, by the way, discussed and valued in comprehensive sex ed), abstinence-only programs have a terrible track record. As the ACLU recently stated last month in a letter to President Obama, with the support of several public health and medical associations, “abstinence-only programs… are not premised on science or good public health policy nor do they serve the best interests of teenagers.” And despite anti-intellectual criticism from Republicans who support abstinence-only education, that “science” bit tends to matter, especially when we have no evidence indicating that the billion federal dollars going to abstinence-only programs in the last decade have made a difference.
What I hope the abstinence-only crowd will begin to realize is that pretending, against all evidence, that sexuality doesn’t exist, or that it is best kept hidden away under the institution of (at this point, heterosexual) marriage is unrealistic, unhealthy, and absolutely no basis for public policy. And even if they never really get that message, I would settle for an end to abstinence-only education – I’m sure we could find other uses for $162 million dollars this year.
On a sidenote, I will say that much more needs to be done to improve comprehensive sex education, especially through public health research and evaluation of sex ed programs. But those efforts will not happen in a political climate that is so deeply hostile to the concept of young adults thinking about and engaging in sexual activity.
Update (04.07.09):
BIG NEWS: Vermont follows Iowa’s lead, legalizes same-sex marriage
Gov. Chet Culver issued a statement of support for the Supreme Court decision
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Update (04.04.09):
Follow-up discussion here of the ongoing same-sex marriage debate in Iowa
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Original Post (04.03.09):
Iowa State Senator Matt McCoy, the first openly gay member of the Iowa Legislature, describes why he thinks Iowa won’t go backwards on marriage rights.
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In the case of Varnum v. Brien, a lawsuit challenging the 1998 Iowa Defense of Marriage Act, arguing that same-sex marriage is protected under equal protection and due process clauses in the Iowa Constitution, the Iowa Supreme Court finds in favor of the plaintiffs, upholding the district court’s ruling. In just twenty-one days, once the procedendo has been issued, same-sex couples in Iowa will be allowed to marry. This ruling makes Iowa the first Midwestern state to allow same-sex marriage, joining Massachusetts and Connecticut nationally as the only states to offer such protection.
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Read the full opinion
For detailed background information on the lawsuit, check out Lambda Legal
Photos from the Des Moines Register
Some analysis from the Bleeding Heartland and reactions from Iowa Politics
And of course, let’s celebrate with One Iowa
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A couple excerpts from the Supreme Court ruling:
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. A religious denomination can still define marriage as a union between a man and a woman, and a marriage ceremony performed by a minister, priest, rabbi, or other person ordained or designated as a leader of the person’s religious faith does not lose its meaning as a sacrament or other religious institution. The sanctity of all religious marriages celebrated in the future will have the same meaning as those celebrated in the past. The only difference is civil marriage will now take on a new meaning that reflects a more complete understanding of equal protection of the law. This result is what our constitution requires…
Iowa Code section 595.2 is unconstitutional because the County has been unable to identify a constitutionally adequate justification for excluding plaintiffs from the institution of civil marriage. 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. This record, our independent research, and the appropriate equal protection analysis do not suggest the existence of a justification for such a legislative classification that substantially furthers any governmental objective. Consequently, the language in Iowa Code section 95.2 limiting civil marriage to a man and a woman must be stricken from the statute, and the remaining statutory language must be interpreted and applied in a manner allowing gay and lesbian people full access to the institution of civil marriage.
