[This post summarizes the Iowa Supreme Court marriage decision in Varnum v. Brien. Another post, updated throughout the day, provides follow-up information about what could happen next and what people are saying about this decision. Welcome, AmericaBlog and Daily Kos readers. Check out Law Dork, 2.0, bookmark me and come back soon!]
The Iowa motto, “Our liberties we prize and our rights we will maintain,” was noted by Iowa Supreme Court Justice Mark Cady in his unanimous opinion for the Court striking down Iowa’s ban on marriage between same-sex couples (PDF). Today, for the first time ever in this country, a state’s highest court spoke strongly and with one voice in support of marriage equality.
Moreover, the opinion subtly implies that this is as it should be and goes on the offense against cries of judicial activism:
As other Iowans have done in the past when faced with the enforcement of a law that prohibits them from engaging in an activity or achieving a status enjoyed by other Iowans, the twelve plaintiffs turned to the courts to challenge the statute.
Slip op., at 8. The Court smartly goes on to fully, simply and clearly explain exactly why this decision is nothing extraordinary:
The legislature, in carrying out its constitutional role to make public policy decisions, enacted a law that effectively excludes gay and lesbian people from the institution of civil marriage. The executive branch of government, in carrying out its role to execute the law, enforced this statute through a county official who refused to issue marriage licenses to six same-sex couples. These Iowans, believing that the law is inconsistent with certain constitutional mandates, exercised their constitutional right to petition the courts for redress of their grievance. This court, consistent with its role to interpret the law and resolve disputes, now has the responsibility to determine if the law enacted by the legislative branch and enforced by the executive branch violates the Iowa Constitution.
Slip op., at 13. This is a court that knows how wildly and inaccurately its decision will be criticized, and it has come to the case prepared. This is not a court that is scared of its decision; this is a court that has proudly and loudly defended its decision in the opinion itself. This also is a court steadfast in its understanding of what it is here to do:
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.
Slip op., at 15. Laying a strong foundation of its purpose and Iowans’ basic right to turn to the courts, Justice Cady then turns to the equal protection question, which he posits that the plaintiffs frame as such: “How can a state premised on the constitutional principle of equal protection justify exclusion of a class of Iowans from civil marriage?” Slip op., at 18
The Court concludes that same-sex couples unallowed to marry in Iowa are similarly situated to the opposite-sex couples allowed to marry:
[F]or 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. As indicated above, this distinction cannot defeat the application of equal protection analysis through the application of the similarly situated concept because, under this circular approach, all distinctions would evade equal protection review.
Slip op., at 28-29. The Court, as did Justice O’Connor in her Equal Protection concurrence in Lawrence v. Texas, asserts that Iowa’s marriage ban is a ban based on sexual orientation because “the conduct targeted by this law is conduct that is closely correlated with being homosexual.” Slip op., at 31 (quoting Lawrence, O’Connor, J. concurring).
The Court holds that heightened scrutiny applies to sexual orientation. Because it finds the marriage ban unconstitutional under intermediate scrutiny, it has no need to determine whether strict scrutiny should apply to classifications based on sexual orientation.
The Court’s harsh analysis of “protecting traditional marriage” is essential reading:
If a simple showing that discrimination is traditional satisfies equal protection, previous successful equal protection challenges of invidious racial and gender classifications would have failed.
Slip op., at 53. The Court also goes through the other arguments advanced by the state for the marriage ban: “optimal environment to raise children,” “promotion of procreation,” “promotion of stability in opposite-sex relationships” — with the great lines, “[W]e 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.” — and “conservation of resources.” It finds them likewise unpersuasive reasons for excluding gay couples from marriage.
The Court concludes:
While the objectives asserted may be important (and many undoubtedly are important), none are furthered in a substantial way by the exclusion of same-sex couples from civil marriage. Our equal protection clause requires more than has been offered to justify the continued existence of the same-sex marriage ban under the statute.
Slip op., at 63. The Court, in a simple and smart act of honesty, goes on to address what it calls “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 Court holds:
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.
Slip op., at 67. Finally, the Court considers the remedy and quickly dismisses any attempts at civil unions:
Other courts have allowed their state legislatures to create parallel civil institutions for same-sex couples. See Lewis v. Harris, 908 A.2d 196, 221 (N.J. 2006); Baker v. State, 744 A.2d 864, 887 (Vt. 1999).
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.
Slip op. at 68. With that, the unanimous Iowa Supreme Court eliminated the ban to marriage equality for lesbian and gay couples in Iowa, liberties prized and rights maintained.
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Chris Geidner is the award-winning senior political editor at D.C.'s Metro Weekly and has written for The Atlantic Online, The American Prospect, Advocate.com, Salon and other publications, as well as at his blog, Law Dork. In 2011, he received the Excellence in News Writing Award from the National Lesbian and Gay Journalists Association for his coverage of "Don't Ask, Don't Tell" repeal. Prior to moving to D.C. in 2009, he served as an attorney on the senior staff at the Ohio Attorney General's Office and had earlier worked for a leading Columbus law firm. An extended biography can be found
Amen.
Great analysis! Thanks for breaking this down for us non-law types. Was there any mention of the complications between federal and state law regarding civil unions and marriages? Is that something that a state court would even elaborate on?
Tim:
There is no federal marriage law at present.
Tim and Kevin, actually there is a federal marriage law, the Defense of Marriage Act (DOMA), which was passed in 1996. It does two things: (1) defines marriage as between one man and one woman for federal legal purposes and (2) allows states to refuse to recognize same-sex marriages performed in another state.
There currently is a federal challenge brought in Massachusetts to the first part of the law.
The Iowa court did not have before it any questions about federal recognition or DOMA and did not address those issues.
Thank you for the commentary.
Thanks for the breakdown–in response to the comments, it’s actually noteworthy that state courts as a rule make these types of decisions exclusively on state constitutional grounds to prevent review by the us supremes (who, it probably doesn’t need to be said, would be less friendly to gays).
What really encouraged me about this decision was the discussion of the distinction b/w religious and civil marriage (which the court technically didn’t need to touch on to reach its judgment). Conflation of those two has made us all a little stupider–it was nice to see the court work a little to educate us. More on that here
NSinNY, you’re absolutely right there. I write a bit about that in a later post talking about the then-law student whose recently published Note is cited throughout the opinion.
IMA long time AmericaBlog reader – First time Law Dork reader. Great post! My husband and I woke up in CA this morning to this stunning news and gave each other high-fives. We were married in California last September before we were out-lawed by Prop 8. We are so worried that our Supremes will uphold 8. I don’t think they will annul/divorce us. If they do, we’ll jump in the car and head right to Iowa (taking a long detour around Utah).
PS: love the ‘Slip Op’ phrase. Had to look it up.
Counselor, thank you very much for your excellent explanations, and for your choices of the decision’s phrasing to quote.
Whoulda thunk that Iowa (!) would have done this before California (please, G-d!) does?
I’m sure I’m not the only reader thrilled to find this take-down of the haters’ most common argument:
“[W]e 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.”
Ha! They bought it, hook, line, and sinker! I can’t wait til all those previously-straight guys realize they can now leave their wives and take up with other men — legally! Today, Fire Island, P-Town, and Key West — tomorrow, Des Moines! Who knows, maybe even Dubuque! O bliss!
Serious follow-up question, however: any idea how many of the Justices were Democrat-appointed, and how many were Republican-appointed? Or does Iowa have elected Justices?
As a native Iowan (living in Minnesota for 14 years now), I cried as I read this wonderful news. Gay marriage is my number one social cause. As a straight person, I couldn’t be happier for gays and lesbians in Iowa. And their children and families.
I’m so damn happy, I’m going to celebrate with beer. I mean, beers.
My quick scan of the bios shows only the Chief Justice was appointed by a Republican (Branstad). The other 6 were appointed by Democrats.
I put most weight on the 7-0 vote, no dissent. Even the most conservative Judge (I don’t know the inner workings to know the Scalia of the bunch) didn’t buy the arguments for keeping the ban.
An interesting day here in West Flyover. Perhaps this is the growth industry Iowa has been searching for.
Peter
Iowa votes for it’s judges – and from the sounds of it – they make good decisions!
As an Iowa lawyer, I am proud of this careful and articulate decision. However, to clarify a minor point–Justice Cady, author of the opinion, was also appointed by Republican Gov. Branstad. Also, Iowa does not elect judges, but rather has a non-partisan merit-based nominating committee system (with periodic retention votes), so we seldom see any sign of ideological divide on the court. I wouldn’t assume too much about the political leanings of any justice based on what Governor appointed him/her.
Kels: Iowa doesn’t elect its judges. Don’t state things as fact when you don’t know what is true. (Good general rule for life and here.) Thank you in advance for your cooperation.
~Internet mgmt
The fair thing to do in this battle for marriage equality is get the government out of the marriage business all together.
I don’t remember my brother having to get a license when he got baptized as a young adult. I don’t think I had to get a license to take my first communion. Those two things are religious constructs and the government has no business being involved in them.
This is the inevitable culmination of a culture that has steadily degraded and marginalized a once lofty institution. Marriage has been steadily weakened as cohabitation, illegitimacy, no-fault divorce, adultery, and serial marriages have intruded and fought for societal acceptance. The age-old concept of marriage being a sacred union between a man and a woman before God and man has been rejected as unworkable, laughable, hopelessly old fashioned and contrary to the basest of human sexual urges. Homosexual marriage is the silver bullet that will destroy the last vestiges of both legitimacy and honor that marriage has held for thousands of years going back to the very origins of Western civilization.
Marriage has never been anything other than between males and females. Now we are expected to accept the notion that marriage is whatever one wants it to be and defined by the whims of popular culture and liberal judges. For once marriage is something other that what it has always been, then it must become anything and everything. The same simplistic arguments monotonously repeated over and over by advocates of same-sex marriage can, and will, be used to justify multiple wives, bi-sexual trios, incest, group marriage, animal-human and adult-child partnerships, and whatever other twisted formations the human mind is capable of dreaming up.
American culture is the thermometer of where we are morally as a nation and a reflection of what is valued. To surrender on this issue is to surrender the culture wars in their entirety.
The backlash against same-sex marriage is not about hate, discrimination or a denial of equal rights. Homosexuals are not forced to sit in the back of the bus or counted as three-fifths of a person. They are forcing their lifestyle, sexual activities, and agenda down the throat of those who oppose homosexuality for a host of natural, biological, religious, moral, or cultural reasons. It is the homosexual lobby and their allies who are actively attempting to steal and redefine the institution of marriage. It is they who have emerged from the closet, taken to the streets and are attempting to snatch legal, cultural, and moral legitimacy for their lifestyle.
The Justices of Massachusetts, Iowa, Vermont, New Jersey, and Connecticut appear to disagree with your sagacity on this issue, Dave. California too, to at least some extent.
Could it be that sagacity is relative?
“The age-old concept of marriage being a sacred union between a man and a woman before God and man has been rejected …”
Your age-old concept ain’t so “age-old”. Marriage has historically been a social institution for creating social, economic and political alliances between families. For most cultures, women were essentially “sold off” and became the chattel of their husband.
Contemporary understanding of marriage for love and being sacred and all that is a fairly recent innovation.
There is no such thing as an institution of marriage that has remained unchanged down through the ages. You’re appealing to a myth.
To – Dave the Sage:
It actually is not historically accurate to say that “Marriage has never been anything other than between males and females.” Many Native American cultures recognized and honored same-sex marriages.
The claim you make is constantly repeated these days. I truly believe that you didn’t know (rather than that you deliberately misrepresented the facts). But let us all educate ourselves a bit before making such confident pronouncements!
To Dave the Sage… These are the same old bitter talking points from the religious crowd, right down to sex with children and animals.
I assume, from the tone of your post, that there is, in fact, no way to have a reasoned conversation with you, but let me try two things, anyway:
1. Neither the Iowa constitution nor the Court’s decision says anything about sex with children or sex with animals. This filth comes from you, not us.
2. As has clearly been stated, this decision pertains only to the state-issued contract called “marriage”. In your church, you are still 100% free to marry (or not marry) whoever you like (or don’t like).
The sky isn’t falling, Chicken Little. You just need to expand your definition of “fairness” a bit.
To – Dave the Sage -
I am curious why you state that “the backlash against same-sex marriage is not about hate,” since your entire posting literally seethes with hatred. And why do you say the issue is not about “discrimination or denial of equal rights,” when your entire concern is to discriminate against gay people and deny us equal rights?
A little honesty would be refreshing. Just say it: You hate us, you think discrimination against us is justified, and you think we should be denied equal rights.
thanks for the summary!
re dave (despite as everyone points out the probable futility of responding)
“The backlash against same-sex marriage is not about hate, discrimination or a denial of equal rights. Homosexuals are not forced to sit in the back of the bus or counted as three-fifths of a person.”
If your partner was in hospital and you had no right to visit or contribute to decisions related to their care as ‘next of kin’ after living together in a committed relationship for decades would you think you had equal rights as a individual? there are a lot more important fundamental rights in life than your position on a bus. freedom in your personal life is just as important
not everything is about the autonomous selfish individual. life is about people and the interactions amongst them. Show some compassion.
Re: Dave the sage:
Grow up.. marriage has changed repeatedly throughout history. Half a century ago it was illegal to marry across racial bountries, before that there it was prohibite to marry outside one’s religion. Historically women were treated as property and had no say in who they married. To contend that marriage as we see it today has been around since the dawn of Western Civilization is to ignore history and pronounce your ignorance on the subject.
I am proud of my home state for standing up for freedom and equality. Marriage carries with it a host of rights that have been denied gay citizens of Iowa. If you’re against gay marriages simply don’t have one. To deny others the right to exercise the freedom to enter a gay marriage because you don’t believe it it is UnAmerican and in Iowa Unconstitutional.
-Dean