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
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.
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 empathy in court (and in the media?), WordInEdgewise
And finally… Louis CK on gay marriage
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).
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.