Back in December, I wrote, Gay Marriage is a Human Right, Not a Religious Issue and rooted my argument in the equal protection clause of the Fourteenth Amendment of the Constitution and then to a lesser extend, the Universal Declaration of Human Rights, with its provision that marriage and procreation are fundamental human rights.
In sum, I argued that 1. marriage is a fundamental human right (the Universal Declaration of Human Rights was written and adopted to define the fundamental freedoms and human rights mentioned in the United Nation's Charter, which is binding upon all member states, of which the United States is a founding member, and through the person of Eleanor Roosevelt had substantial input into and influence upon the Universal Declaration) and 2. American gay and lesbian people are citizens of the United States who therefore have the same rights to marry their freely chosen and freely chosen partners that straight people do.
I was roundly lambasted for treating as the intellectual rubbish they are "whatabouts" such as cousin marriage, polygamy, and bestiality. One was unaware that marriage is not reproduction. He also thought marriage was closely regulated by the state. In fact, no crime impinging upon either marriage or reproduction is so cruel that it abrogates a person's right to marry someone of the opposite sex and have children: not even rape, or wife-beating or wife-murder or marital rape, not impoverishing your husband or wife, not failure to provide, not incest, including with step-children, not child abuse or pedophilia, not the most reckless or willful failure to be responsible for your fertility. Another correspondent asserted that gay and lesbian people could marry, just people of the opposite sex, which is of course like saying to my husband and me, of course you can marry so long as it's to people of your own sex. (Thanks, no.) This correspondent also asserted that he didn't want gay people to marry because he couldn't imagine what it would have been like to grow up with two parents of the same sex, and asserted that anyone who disagreed with him was an idiot. One of these people was a lawyer who used his business email to leave me an anonymous note (if you read the about page, you will know I generally do not have much respect for people who do not sign their real names, as I do) and he got very upset when I sent him a private reply chiding him on his refusal to address the issues I raised in favor of raising issues of which he showed clear ignorance.
In short, none of them had the intellectual integrity or moral courage to say, marriage is not a fundamental human right, at least for gay people, and even if it is a fundamental human right, the Constitution does not apply to gay people.
Now the Iowa State Supreme Court has voided the ban on legal recognition of marriages between couples of the same sex finding it unconstitutional on grounds that it denied to gay people equal protection of the laws.
What is interesting about this opinion is that the reasoning is not only constitutionally correct but the tone of this opinion. I am neck-deep (and getting deeper) in The Doves: Chapters 10-16 written in draft between 26 Feb and 3 Apr, and that doesn't begin to count what I wrote to produce those drafts. Draft total: 53K words in five weeks. So I haven't contacted the Iowa Supreme Court, but the tenor of the opinion indicates disgust with the cowardice, moral and intellectual, people bring to the issue of same-sex marriages and an intention for their decision to be a model for future litigation. The impeccable, civilized legal language cannot disguise this attitude towards all those who think the marriages of same-sex couples should be denied equal protection of the law: still moving? Shoot them again.
Upon consideration, having reread the full opinion, which can be found here, in order to extract only what I thought were the juiciest bits (and I never thought the day would come when I would use language like that to describe a legal opinion), this is more along the lines of deliberately reloading with hollow-point before administering those insurance shots. As near as I can tell, the only way this opinion can be overturned in a way that withstands scrutiny is to amend the Iowa Constitution to eliminate the equal protection clause. But then, ignoring the equal protection clause of the US Constitution is the only way the Defense of Marriage Act was passed and gay people continue to be discharged from the military, along with a few other things I can think of.
Some passages follow.
On majority rule:
It is also well established that courts must, under all circumstances, protect the supremacy of the constitution as a means of protecting our republican form of government and our freedoms. As was observed by Justice Robert H. Jackson decades ago in reference to the United States Constitution, the very purpose of limiting the power of the elected branches of government by constitutional provisions like the Equal Protection Clause is "to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts." W. Va. State Bd. of, 319 U.S. 624, 638, 63 S. Ct. 1178, 1185, 87 L. Ed. 1628, Educ. v. Barnette 1638 (1943).
On defining equal protection:
The process of defining equal protection, as shown by our history as captured and told in court decisions, begins by classifying people into groups. A classification persists until a new understanding of equal protection is achieved. The point in time when the standard of equal protection finally takes a new form is a product of the conviction of one, or many, individuals that a particular grouping results in inequality and the ability of the judicial system to perform its constitutional role free from the influences that tend to make society’s understanding of equal protection resistant to change. As Justice Oliver Wendell Holmes poignantly said, “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past."
On being similarly situated with heterosexual couples:
Therefore, with respect to the subject and purposes of Iowa’s marriage laws, we find that the plaintiffs are similarly situated compared to heterosexual persons. Plaintiffs are in committed and loving relationships, many raising families, just like heterosexual couples. Moreover, official recognition of their status provides an institutional basis for defining their fundamental relational rights and responsibilities, just as it does for heterosexual couples. Society benefits, for example, from providing same-sex couples a stable framework within which to raise their children and the power to make health care and end-of-life decisions for loved ones, just as it does when that framework is provided for opposite-sex couples. In short, for purposes of Iowa’s marriage laws, which are designed to bring a sense of order to the legal relationships of committed couples and their families in myriad ways, plaintiffs are similarly situated in every important respect, but for their sexual orientation.
On laws prohibiting marriage between two people on of the same sex on the basis of their sex, not their sexual orientation:
It is true the marriage statute does not expressly prohibit gay and lesbian persons from marrying; it does, however, require that if they marry, it must be to someone of the opposite sex. Viewed in the complete context of marriage, including intimacy, civil marriage with a person of the opposite sex is as unappealing to a gay or lesbian person as civil marriage with a person of the same sex is to a heterosexual. Thus, the right of a gay or lesbian person under the marriage statute to enter into a civil marriage only with a person of the opposite sex is no right at all. Under such a law, gay or lesbian individuals cannot simultaneously fulfill their deeply felt need for a committed personal relationship, as influenced by their sexual orientation, and gain the civil status and attendant benefits granted by the statute.In re Marriage Cases, 183 P.3d at 441. The benefit denied by the marriage statute—the status of civil marriage for same-sex couples—is so “closely correlated with being homosexual” as to make it apparent the law is targeted at gay and lesbian people as a class. See Lawrence, 539 U.S. at 583, 123 S. Ct. at 2486, 156 L. Ed. 2d at 529 (O’Connor, J., concurring) (reviewing criminalization of homosexual sodomy and concluding that “[w]hile it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the] sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class.”). The Court’s decision in Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996), supports this conclusion. Romer can be read to imply that sexual orientation is a trait that defines an individual and is not merely a means to associate a group with a type of behavior. See Romer , 517 U.S. at 632, 116 S. Ct. at 1627, 134 L. Ed. 2d at 865–66 (holding an amendment to a state constitution pertaining to “homosexual . . . orientation” expresses “animus toward the class that it affects”).
Instead, a gay or lesbian person can only gain the same rights under the statute as a heterosexual person by negating the very trait that defines gay and lesbian people as a class—their sexual orientation.
By purposefully placing civil marriage outside the realistic reach of gay and lesbian individuals, the ban on same-sex civil marriages differentiates implicitly on the basis of sexual orientation.
On whether or not sexual orientation is what is known in legal language as a suspect category, like race, sex, religion, or national origin, which is to say any differentiation along those lines is typically driven by outmoded prejudices, if not outright animus, and thus inherently suspect:
The first consideration is whether gay and lesbian people have suffered a history of purposeful unequal treatment because of their sexual orientation. The County does not, and could not in good faith, dispute the historical reality that gay and lesbian people as a group have long been the victim of purposeful and invidious discrimination because of their sexual orientation.
On supporting traditional marriages:
The governmental objective identified by the County—to maintain the traditional understanding of marriage—is simply another way of saying the governmental objective is to limit civil marriage to opposite-sex couples. Opposite-sex marriage, however, is the classification made under the statute, and this classification must comply with our principles of equal protection. 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.
This approach is, of course, an empty analysis.
On promoting an optimal enviroment for raising children:
The civil marriage statute is under-inclusive because it does not exclude from marriage other groups of parents—such as child abusers, sexual predators, parents neglecting to provide child support, and violent felons—that are undeniably less than optimal parents. ...
If the statute was truly about the best interest of children, some benefit to children derived from the ban on same-sex civil marriages would be observable. Yet, the germane analysis does not show how the best interests of children of gay and lesbian parents, who are denied an environment supported by the benefits of marriage under the statute, are served by the ban. Likewise, the exclusion of gays and lesbians from marriage does not benefit the interests of those children of heterosexual parents, who are able to enjoy the environment supported by marriage with or without the inclusion of same-sex couples.
On promoting procreation:
Gay and lesbian persons are capable of procreation. Thus, the sole conceivable avenue by which exclusion of gay and lesbian people from civil marriage could promote more procreation is if the unavailability of civil marriage for same-sex partners caused homosexual individuals to “become” heterosexual in order to procreate within the present traditional institution of civil marriage. The briefs, the record, our research, and common sense do not suggest such an outcome. Even if possibly true, the link between exclusion of gay and lesbian people from marriage and increased procreation is far too tenuous to withstand heightened scrutiny. Specifically, the statute is significantly under-inclusive with respect to the objective of increasing procreation because it does not include a variety of groups that do not procreate for reasons such as age, physical disability, or choice. In other words, the classification is not substantially related to the asserted legislative purpose.
On promoting the stability of cross-sex relationships:
While the institution of civil marriage likely encourages stability in opposite-sex relationships, we must evaluate whether excluding gay and lesbian people from civil marriage encourages stability in opposite sex relationships. The County offers no reasons that it does, and we can find none. The stability of opposite-sex relationships is an important governmental interest, but the exclusion of same-sex couples from marriage is not substantially related to that objective.
On conserving state resources:
The argument is based on a simple premise: couples who are married enjoy numerous governmental benefits, so the state’s fiscal burden associated with civil marriage is reduced if less people are allowed to marry. In the common sense of the word, then, it is “rational” for the legislature to seek to conserve state resources by limiting the number of couples allowed to form civil marriages. By way of example, the County hypothesizes that, due to our laws granting tax benefits to married couples, the State of Iowa would reap less tax revenue if individual taxpaying gay and lesbian people were allowed to obtain a civil marriage. Certainly, Iowa’s marriage statute causes numerous government benefits, including tax benefits, to be withheld from plaintiffs. Thus, the ban on same-sex marriages may conserve some state resources. Excluding any group from civil marriage—African-Americans, illegitimates, aliens, even red-haired individuals—would conserve state resources in an equally “rational” way. Yet, such classifications so obviously offend our society’s collective sense of equality that courts have not hesitated to provide added protections against such inequalities.
On organized religion, the reader of this blog noting that these statements apply virtually verbatim to the US Constitution and Supreme Court as well:
Now that we have addressed and rejected each specific interest advanced by the County to justify the classification drawn under the statute, we consider the reason for the exclusion of gay and lesbian couples from civil marriage left unspoken by the County: religious opposition to same-sex marriage. The County’s silence reflects, we believe, its understanding this reason cannot, under our Iowa Constitution, be used to justify a ban on same-sex marriage. ...
Thus, in pursuing our task in this case, we proceed as civil judges, far removed from the theological debate of religious clerics, and focus only on the concept of civil marriage and the state licensing system that identifies a limited class of persons entitled to secular rights and benefits associated with civil marriage.This contrast of [religious] opinions in our society largely explains the absence of any religion-based rationale to test the constitutionality of Iowa’s same-sex marriage ban. 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. ...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. See Iowa Const. art. I, § 3 (“The general assembly shall make no law . . . prohibiting the free exercise [of religion] . . . .”). This mission to protect religious freedom is consistent with our task to prevent government from endorsing any religious view. State government can have no religious views, either directly or indirectly, expressed through its legislation. Knowlton v. Baumhover, 182 Iowa 691, 710, 166 N.W. 202, 208 (1918). This proposition is the essence of the separation of church and state. As a result, civil 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. We are not permitted to do less and would damage our constitution immeasurably by trying to do more.
We have a constitutional duty to ensure equal protection of the law. Faithfulness to that duty requires us to hold Iowa’s marriage statute, Iowa Code section 595.2, violates the Iowa Constitution. To decide otherwise would be an abdication of our constitutional duty. 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. Iowa Code section 595.2 denies gay and lesbian people the equal protection of the law promised by the Iowa Constitution.
On seperate but equal not being equal at all:
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 595.2 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.
No more need be said. This is an elegant opinion, leaving no rational response.
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