Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
The Iowa Supreme Court unanimously ruled on Friday that the state must allow same-sex couples to get married. See full ruling here. Long excerpt from the ruling below the fold:
We are firmly convinced the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective. The legislature has excluded a historically disfavored class of persons from a supremely important civil institution without a constitutionally sufficient justification. There is no material fact, genuinely in dispute, that can affect this determination.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.
Bravo.
Politics
Comments
Economic issues matter and marriage is an economic issue. Studies show that married people are slightly healthier (less cost) and wealthier (pay more taxes) than their single counterparts and this is true for gay people as well.
Therefore, it is in the state's best economic interest to grant marriage equality.
Posted by: Tom Miller | April 6, 2009 9:35 AM
So this is going to last like five seconds, right? I can't see the state legislature letting this go on.
Posted by: Hari Narayan | April 6, 2009 9:43 AM
The Iowa Constitution is tough to change. The ammendment has to pass both houses in 2 separate sessions and then go to the population for a vote. So, if they got busy RIGHT NOW (won't happen, session is pretty well over) , it would be 2-3 yrs before anything could change.
Posted by: Nankay | April 6, 2009 9:47 AM
Nankay:
What's 2-3 years of crafty legislatiofacating when one's immortal soul (BURNING IN HELL FOR ETERNITY!!) hangs in the balance? No, I think we can count on Iowa Rep. King (Moron--5th Distric--the other demented, reichwing fuckwad in the U.S. congress with that name) to get the ball rolling before the end of this week.
Besides, them pointy headed hayseeds out there in Ames and Des Moines have intimate knowledge of what happens (see Missippi floods of 1993) when BABY JESUS cries.
Posted by: democommie | April 6, 2009 9:55 AM
Love the ruling and most of its logic. It'll be interesting to see the objections to this ruling that actually take on the merits of the case (rather than mere pundits spewing shallow talking points).
I had one hesitant moment when reviewing the highlights of the case here and in other forums. Ed quotes the ruling stating:
Given the court already has an obligation to limit or prohibit activity that excessively infringes on the greater rights of others along with numerated powers delegated to it, what possible example could be fit into that statement that would justify the state denying rights for its own objectives beyond their numerated powers?
I found this similar to a part of the Roe v. Wade opinion wherein that opinion claimed the state's interest in the fetus at a certain stage of maturity. I don't understand this point of a state having an interest that would justify removing our rights beyond what's been specficially delegated or protects the greater rights of others. Anybody actually know the precedent that affords such power to the state?
Posted by: Michael Heath | April 6, 2009 9:59 AM
As one of those pointy headed hayseeds I have to tell you that this ruling won't be changed anytime soon. Most people in Iowa have a sense of fairness and don't much care what their neighbors are up to as long as it doesn't effect them, so this ruling isn't causing mass hysteria by any means. Also, both houses of the state legislature are highly Democratic and have no desire to try to amend the Constitution.
Posted by: McChocalstein | April 6, 2009 10:11 AM
McChocalstein:
You Iowanians are clever, but I growed up in Huskerbraska and know that you have some folks that will moving to Lincoln, NE or Springfield, MO to protect the sanctity of marriage. Of course they will then have the head exploding phenomena of living in the land of Cyclonapostates or Hawkeyefidels.
Posted by: democommie | April 6, 2009 10:27 AM
Michael Heath: I think it depends on how specific the group's definition is. For example, if X were "people convicted of armed robbery (and then released after serving their time)" and Y were "gun ownership", I think many people would feel the exclusion did indeed further an important governmental objective.
Posted by: xebecs | April 6, 2009 10:46 AM
I wonder how LaBarbera at AFTAH is going to spin this? He and his ilk are convinced that the perversity of the liberal coasts can't intrude into the good christian American "heartland." And the RR in general: Iowa can't be dissed as a homeland of liberalism as they define Massachusetts and Connecticut. I imagine that they'll just make a lot of noise about the end of the American family and call on all god-fearing Iowans to rise up in protest.
Posted by: gary l. day | April 6, 2009 11:05 AM
Micheal - How about:
X = sociopaths
Y = owning multiple, fully-functioning, 100 Megaton Thermonuclear devices
Would that qualify? - Curiously DJ
Posted by: Anonymous | April 6, 2009 11:05 AM
It is a pity this ruling doesn't establish a precedent beyond the state of Iowa. Hopefully other courts will pay attention and recognize that there really aren't any valid arguments against gay marriage.
Posted by: dogmeatib | April 6, 2009 11:31 AM
Michael,
The draft is an example. It is essentially a deprivation of liberty that applies differently to men than to women, but because it is largely felt that the military is better off with male, rather than female, infantry troops, the selective service laws survive heightened scrutiny.
What I found interesting was that while the court ruled that the discrimination against same-sex couples required "heightened" scrutiny under Iowa's DOMA law, the court did not specify as to whether the lesser "intermediate" or greater "strict" scrutiny was appropriate. Rather, the court reasoned that since DOMA failed intermediate scrutiny, it would of course necessarily fail scrict scrutiny, so the court could avoid actually making that determination. That might be a decision that SCOTUS will wrestle with in the future, as 14th Amendment application at the federal level seems, on the surface, to be pretty similar to the Equal Protection analyses that the Iowa court was dealing with.
Posted by: Ronnie Tobin | April 6, 2009 11:37 AM
Activist judges, not representative of the people whom they serve.
I don't make a lot of predictions, but that one is a no-brainer.
Posted by: xebecs | April 6, 2009 11:38 AM
God, that must be great. We Californians have spent the past 30-40 years rendering our state ungovernable by taking basically every issue of importance mostly out of the hands of the legislature.
Posted by: Troublesome Frog | April 6, 2009 11:39 AM
xebecs and DJ - both your examples refer to a state's obligation to defend its citizens which I distinguished as a separate obligation - not that my doing so was correct.
If you are right, it means this court used an expression that's confusing. I usually find the principle for your examples framed not in the interests of the state, but in its obligations to defend its citizens' rights, namely their safety and security. So why would this court use such confusing, statist, almost fascist, language when the rest of the opinion reeks only of liberty? (And what a fine reek that is!!!).
Posted by: Michael Heath | April 6, 2009 11:42 AM
xebec--you're right, that was pretty much a no-brainer. Except they're using the term "supremacist" judges.
I does occur to me, though, that being on the wrong side of history does wonders for a martyr complex. And we do know how radical right-wing religionists love their martyrdom.
Posted by: gary l. day | April 6, 2009 11:53 AM
Micheal H - Please understand that I completely understand this is not at all what you are arguing. The purpose of my (totally ridiculous) hypothetical is to find the limit of such an arguement only.
IF such a situation occurred (probability = vanishingly small) THEN huge amount of infrastructure damage, loss of income due to blast and radiological damage (at the very least) could be expected at the local, state and national (as well as international?) levels. Therefore I would think such a governmental control would be reasonable to ensure the continuity of inter-state trade, alone.
What about a strike of state employees at airports and docks, would the government have the right to step in on such an action to guarantee the rights of citizens generally? -DJ
Posted by: DingoJack | April 6, 2009 12:08 PM
DingoJack:
"What about a strike of state employees at airports and docks, would the government have the right to step in on such an action to guarantee the rights of citizens generally?"
Ronald Reagan crushed PATCO, which was a union, not a group of government employees, afaia. There have been numerous instances where government has stepped into labor/management disputes (generally on the side of management) to order the union workers not to strike. And of course there was good ol' "Silent Cal" Coolidge who destroyed the Boston PD as governor of MA.
Yeah, I'd say they'd step in, in a heartbeat.
Posted by: democommie | April 6, 2009 12:27 PM
Yay!!!!! Go Midwest!
Posted by: Sadie Morrison | April 6, 2009 12:40 PM
gary l. day:
Box Turtle Bulletin has a roundup of the various Religious Right reactions. LaBarbera does make a big deal out of the fact that this didn't happen on the "liberal coasts", but of course he blames it on "judicial tyranny". His ultimate warning:
Posted by: Alex | April 6, 2009 12:44 PM
If Barbera were right:
"because God (who invented marriage) is not mocked."
then, he, Barbera, would be nothing but a steaming pile of shit--whoa, maybe there IS proof of GOD's existence, after all.
Posted by: democommie | April 6, 2009 1:12 PM
If anyone is interested in a response to this, Eagle Forum has issued a press release where they basically say they want to remove the entire judicial branch.
Posted by: Bachalon | April 6, 2009 1:31 PM
Alex - thanks for the link, so far, pretty quiet. . .
I've been monitoring The Drudge Report for blasts out of more mainstream-media connected pundits. Curently Drudge has no headlines specific to the Iowa Ruling nor can one do a search for "Iowa" on Andrew Sullivan's page and find a story (though Sullivan did post on this topic in previous days, no links from anyone with any political power IIRC).
Posted by: Michael Heath | April 6, 2009 1:33 PM
LeBarbera is such an egregious self-loathing closet case, it's not even funny. He goes on and on about the sanctity of family and heterosexual marriage, while complaining he can't find a suitable woman online. Not married? At his age? Hmmm. On top of that, the AFTAH website in particular is notable for printing some pretty graphic homoerotic imagery--all in the name of scandalizing the righteous, of course. Of course, everything I've just said he would characterize as hate speech; of course, calling me and other gay men "pervs" "misfits" and other more insulting names is all about christian love.
Posted by: gary l. day | April 6, 2009 1:51 PM
Good for Iowa: now let's hope the voters there don't pull the same bullshit move Wisconsin did: we have the same '2 consecutive legislatures and a popular vote' mechanism IA does, and it didn't stop the amendment from passing, and by a surprising margin.
Once upon a time we were viewed as a progressive state. We seem to have stalled out in the regard.
Posted by: Spidergrackle | April 6, 2009 2:38 PM
What happens to those who are legally married if the state dissolves the right to marry? (ala California) Can one just lose/have undone what was theirs?
Posted by: nankay | April 6, 2009 5:23 PM
Most people in Iowa have a sense of fairness and don't much care what their neighbors are up to as long as it doesn't effect them, so this ruling isn't causing mass hysteria by any means.
And I suspect this will be more true the longer the state issues marriage licenses to gay couples in accordance with the court's ruling. I strongly suspect that as the 2-3 years necessary to amend the constitution pass without the existence of gay marriage in Iowa causing social decay, the mass breakup of heterosexual marriage, and biblical plagues, I'm guessing a lot of whatever urgency there is for amending the constitution will dissolve.
The anti-marriage folks' hysterical projections about the evils that'll befall us if gay marriage comes to pass will seem even less credible when real life experience puts the lie to 'em.
Posted by: FBI Regional Bureau Chief GORDON COLE!!! | April 6, 2009 6:26 PM
In CA, as the state already recognized civil unions, presumably the marriages were converted back into unions. IA is a different question, since the state has no residency requirement for marriage. So couples from other states can go there to get married, and it will force their home states into some difficult choices with regard to divorces, inheritance rights, and all the domestic issues "incidental" to marriage. It could force changes in the laws of other states fairly quickly.
Michael Heath: The novelty in this opinion is the identification of sexual identity as a suspect class. Once that determination has been made, the rest of the decision flows naturally.
If seual identity were not a protected class, then all the legislative definition requires is a "rational relationship" to pass muster; hence most other state and federal courts have allowed the old definition of marriage, arguing that it serves for the protection of children and families, even though same-sex couples raise children as well. In other words, the reasoning doesn't have to be very convincing, merely plausible.
Once orientation is a protected class, however, more than a rational relationship is required: There has to be good reasons for the distinction. In this case, Iowa offered seven possible excuses, and none of them was good enough.
The state could appeal to the Supremes, as the provision in the Iowa Constitution the Court used is virtually identical to the 14th Amendment. The Supremes very seldom overrule state Supreme Courts, however.
Posted by: kehrsam | April 6, 2009 6:48 PM
kehrsam,
There is not going to be an appeal. The Polk County Recorder was the named defendant. The county is the only entity who can appeal I believe. The case was strictly based on the state constitution so there is no federal issue regardless of similarity to the federal constitution, right? In any case, the county attorney has stated that he will not ask for a rehearing which is apparently the only legal option he has left. The senate minority leader has been all over TV demanding that the majority democrats "give the people a vote". His logic: the legislature voted no gay marriage when they passed the law, the court voted yes when they overturned it, so the people should be the tie breaker. I'm afraid I have less confidence in my fellow citizens than has been expressed in comments above.
Posted by: AB | April 6, 2009 7:48 PM
This past weekend I attended my first civil union. Andrew and Aaron, they came up the isle together and got unionised (or whatever) in a church. It was a wonderful ceremony, after which society didn't crumble, at least not any more so.
Posted by: John S | April 6, 2009 8:10 PM
Re Michael Heath
It would certainly be interesting to see what Mr. Drudges' take is, considering that he is alleged to be gay.
Posted by: SLC | April 6, 2009 8:25 PM
AB:
If there is no appeal, it doesn't really matter, of course.
Posted by: kehrsam | April 6, 2009 9:30 PM
There's no chance of a successful appeal to the federal supremes for the same reason that the ruling here in Iowa was a unanimous slam dunk. It's already well established precedent in Iowa's state con law that:
1. Orientation is protected in the same way race or sex is, so to legally discriminate by orientation in any way the state has a burden to prove a compelling state interest.
2. None of the arguments put forward were good enough to show a compelling state interest back when they were put forward to justify discrimination against homosexuals in adoption.
There's nothing to appeal. I mean, logically how could they even hope to show a compelling state interest allows Iowa to discriminate against LGBT's in marriage when precedent says they have no power to treat them any differently from straights in adoption?
Also, to second McChocalstein above, I live in the Steve King electing, conservative-filled 5th district and I can't see an amendment passing since the reaction here's been practically nothing. It takes passage by two consecutive congresses and then a referendum. We have a Dem legislature that supports the ruling and historically the partisan make up's been 50/50. The Iowa GOP would have to completely reverse the national and local trends in their party's fortunes, achieve and hold majorities they haven't had for decades at least in both houses, get a GOP governor elected to sign it, and to all that quickly enough that a majority of Iowegians are still spooked enough to support adding discrimination to the state constitution, which may not be the case even today.
I wish the news had done a better job mentioning what a big deal this is for Iowa precident. We don't have the rural flight levels some states have, but it's still a problem. If all your gays were belong to us it would mean good things for the state.
So ya know, any LGBT folks out there, along with the previous ruling on adoption this ruling pretty much means 100% equality for the LGBT community is carved in stone in Iowa con law. Also, land is cheap, schools are excellent, 20% of electricity is wind power, and even ultra-conservatives are generally very tolerant.
Posted by: SeanH | April 7, 2009 12:34 AM
Regardless of how you weigh in on the issue of gay marriage, the opinion is an affront to our nation’s tradition of justice. It is a superficial power grab designed merely to advance a moral conclusion through an abuse of legal process. (If you are new to the evaluation of judicial opinions, this is the very characterization we use now when talking about the Dred Scott decision, now haled as one of the worst, if not the worst, opinion in the Supreme Court’s history.)
How superficial is the Court’s reasoning? Iowa Code section 595.2(1) provides “[o]nly a marriage between a male and a female is valid.” According to the Court, “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.” (p. 13.) But don’t forget polygamists and kissing cousins. If we were truly using outcome-neutral legal reasoning, we have to recognize that these groups are also excluded. And there is a simple reason for this exclusion: people don’t like it. They think it’s icky. If and when they ever stop thinking it’s icky, and if there’s a critical mass of such folks clamoring for their “right to marry,” they’ll likely get it.
Many people still think gay marriage is icky. The tide is shifting in that area, but the scales haven’t tipped yet. But there is no “equal protection” violation in refusing to recognize a marriage between a couple of men any more than there is in refusing to recognize a marriage between a couple of siblings, a couple of 14-year-olds, or a quartet of what-have-you’s.
Of course, Iowa’s decision is not meant to be read as judicial precedent. It is simply a statement of law – more like a statute. Statutes are fine, when they are passed by a body of representatives duly elected by the people. But not when they are handed down by judges.
The Court concludes that the “plaintiffs are similarly situated in every important respect, but for their sexual orientation.” (p. 28.) Who decides which respects are “important”? Why, the folks in black robes. You can keep your ballots. Put them in a scrapbook to show your grandkids how our nation decided policy matters before judges decided they were better at it.
I would prefer very much that lawyers and anyone else purporting to make legal arguments to advance moral positions just stop it. This is not what legal argumentation is for. As someone who cares very much about the rule of law and the proper exercise of the democratic function in our republic, and markedly less about whether gay marriage is actually sanctioned, I dislike having to rant about the wrong-headedness of gay marriage advocates. I have several gay friends, and my wife and I enjoy visiting with them, particularly at Christmas parties and summer barbecues. I worry that someone would misinterpret my advocacy for the rule of law into a misguided basis of some accusation of "hate-mongering."
The fact is, it is a moral issue. Moral issues are decided in our society at the ballot, not at the courthouse. Iowa’s high court handed down an abysmal decision. Not because its outcome is one that opponents of gay marriage don’t like, but because it is reached by a terrible subversion of the rule of law and legal argumentation. These things may seem stodgy and trivial to those who just want their “rights,” but without them, none of our rights have any meaning.
Posted by: Tim Kowal | April 7, 2009 12:44 AM
Tim Kowal - Did you read the post immediately before yours?
SeanH posted:
Any thoughts on this? [BTW I've no dog in this race] - DJ
Posted by: DingoJack | April 7, 2009 12:55 AM
One simple question, Mr. Kowal:
By your reasoning, is it possible to come up with a coherent reason why the ruling in Loving v Virginia is not equally invalid? I doubt you can.
Posted by: Ed Brayton | April 7, 2009 1:37 AM
Tim,
You're mistaken. The ruling is based on precedent and reinforces it, it's not statute handed down by the court. In the past the Iowa code said nothing about marriage being between a man and woman until the legislature added that discrimination recently. The courts did not come up with a statute and force it on the state. They simply did their job, reviewed the law when it was challeged in court, and upheld the Iowa Bill of Rights and previous precident saying the legislature does not have the power to dicriminate by sex or orientation without proving there's a compelling state interest for doing so.
The Bill of Rights in the Iowa Constitution decides:It doesn't say "except for marriage laws" or "except for gay people". It's long-settled precedent in Iowa con law that:
1. Orientation is a protected class just like race or sex.
2. The Iowa state legislature is constitutionally barred from passing any law that doesn't apply equally to all classes of citicizens unless they can prove a compelling state interest requires it.
3. When a discriminatory law is challenged in court the burden of proof for compelling state interest lies on the state, not the challeger and if the state fails to prove their case the court must void the law.
4. The standards of what constitutes "compelling state interest" are very well established.
5. The arguments put forth by the state failed to meet the standards of compelling state interest in this case and also failed in previous state Supreme Court cases, particularly the protection of the family and child welfare arguments which have been used unsuccessfully in child custody and adoption cases.
When the state legislature altered the marriage law they passed a discriminatory law, saying a man could only marry a woman and vice versa, which they are contitutionally barred from doing without a compelling state interest.
When that law was challenged in court the burden of proof automatically defaulted to the state of Iowa and constitutionally obligatated them to prove a compelling state interest existed to give them the power to pass that law, which they failed to do.
When the state courts found that the state had failed to prove compelling interest they were constitutionally obligatated to void the law.
The only power grab in that process was the power grab made when the state legislature passed a discriminatory law without a compelling state interest, which they are absolutely forbidden to do under the state constitution.
In order to rule any other way the court would have had to either ignore the equal treatment under the law guaranteed to all Iowans in the state constitution or ignore decades of precedent in Iowa law clearly showing what's required to prove compelling interest as well as precedent from previous rulings clearly showing that the very arguments put forward in this case had already been deemed inadequate proof of compelling interest in previous challenges to Iowa family laws.
Posted by: SeanH | April 7, 2009 2:40 AM
Tim Kowal said:
"The fact is, it is a moral issue. Moral issues are decided in our society at the ballot, not at the courthouse. Iowa’s high court handed down an abysmal decision. Not because its outcome is one that opponents of gay marriage don’t like, but because it is reached by a terrible subversion of the rule of law and legal argumentation. These things may seem stodgy and trivial to those who just want their “rights,” but without them, none of our rights have any meaning."
Actually, I'm pretty sure that moral issues are decided in our hearts and minds. Attempting to force our morals down someone else's throat is attempted through legislation and at the ballot box. Happily, it often fails; sadly, it often succeeds.
Shorter Tim Kowal = Teh GAY are icky.
Posted by: democommie | April 7, 2009 6:10 AM
No, Tim, moral issues are not decided on a ballot. They are decided in each citizen's home. The government has no business dictating personal morals except where it's necessary to protect the rights of others or advance a compelling state interest.
Posted by: DaveL | April 7, 2009 6:37 AM
Posted by: Ex-drone | April 7, 2009 6:56 AM
To Tim Kowai, I will also add:
Yes, this is a moral issue *but only for some regions*. Why do people who assume this is a moral issue always assume that everyone has the same morals? Some religions think being gay is a big no no. Others have no problem with gay people serving in the church or getting married. Which one of these views should be enshrined in legislation?
And you have your statement exactly backwards. Moral issues are decided by individuals and attempts to legislate the same morality for all have always ended badly. As Ed alluded to, at one time, the majority of people thought it was "immoral" for people of different races to marry.
Posted by: MyPetSlug | April 7, 2009 7:16 AM
To pile on to Ed and MyPetSlug's point, about 73% of the country thought inter-racial marriage was wrong in 1967, the year of Loving v. Virginia, not just a mere majority.
I went to Tim Kowal's site, he's enough of a gullible moron that he actually published the House GOP graph showing debt/GDP for Obama and the GOP plan extending to 2080 supposedly using CBO numbers. In fact, the GOP's numbers are all made-up, misrepresenting Obama' budget effects on GDP while not allowing anyone to thoroughly fisk their budget - if they even have a legitimate one yet. The GOP merely extended CBO numbers into near infinity from a budgetary perspective (2080) ,which was never the intent of the CBO numbers since some planned investments in the Obama plan do not have their economic return on investment calculated into GDP past a certain point, making their budget irrelevant in the periods where the GOP supposedly has an advantage.
The fact that even most conversatives are embarrassed by the quality of the GOP budget plan and have kept their heads low since the plan has come out says something about where Mr. Kowal sits in spectrum.
Posted by: Michael Heath | April 7, 2009 9:20 AM
Michael Heath:
Does this mean that Mr. Kowal's actions call for application of the "mroberts corollary"?
Posted by: democommie | April 7, 2009 10:37 AM
Kowal's rant seems quite pointless in light of the very straightforward decision by the judges.
You cannot discriminate based on sexual orientation without a good reason.
Religious theocratic moral outrage is not a good reason.
The judges did not actively create this decision. They were petitioned by an Iowan who felt discriminated against. The court responded splendidly.
Posted by: MikeMa | April 7, 2009 11:28 AM
Loving v. Virginia represents the proper standard by which a statute could and should be overturned – when the purposes behind it are corrupt. In Loving, those purposes were “‘to preserve the racial integrity of its citizens,’ and to prevent ‘the corruption of blood,’ ‘a mongrel breed of citizens,’ and ‘the obliteration of racial pride,’ obviously an endorsement of the doctrine of White Supremacy.” The Court concluded that “There can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race.”
Iowa’s Supreme Court does not purport to reach such a conclusion. No suggestion is ever made that the marriage statute was enacted out of an agenda to oppress homosexuals, or advance some brand of heterosexual supremacy. Instead, while Loving represents a “thou shalt not” standard as to the legislative function (i.e., thou shalt not legislate out of animus towards a group), Iowa’s high court sets forth a “thou shalt” mandate – i.e., thou shalt actively embrace, endorse, and promote all cultural viewpoints represented in the jurisdiction. This is a relatively new attitude of jurisprudence, and in my view, a dangerous one. I believe it can lead to something like what Europeans are now seeing, which is the wholesale forfeiture of their established yet passive culture to the insurgence of a militant-Islamic one. (Of course, I am certainly not comparing homosexuality to Islamicism; I am merely suggesting that the kind of thinking underlying the Iowa decision represents a dramatic intellectual shift that undermines the people’s ability to define their own cultural norms.)
I would be interested to know how others would respond to the reductio argument posed in my original comment: if Iowa’s decision is correct, what, if anything, stands in the way of extending the right of marriage to polygamists?
Posted by: Tim Kowal | April 7, 2009 11:35 AM
Vermont just joined the club!
Posted by: MikeMa | April 7, 2009 11:36 AM
Posted by: MikeMa | April 7, 2009 11:40 AM
Loving v. Virginia represents the proper standard by which a statute could and should be overturned – when the purposes behind it are corrupt. In Loving, those purposes were “‘to preserve the racial integrity of its citizens,’ and to prevent ‘the corruption of blood,’ ‘a mongrel breed of citizens,’ and ‘the obliteration of racial pride,’ obviously an endorsement of the doctrine of White Supremacy.” The Court concluded that “There can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race.”
Iowa’s Supreme Court does not purport to reach such a conclusion. No suggestion is ever made that the marriage statute was enacted out of an agenda to oppress homosexuals, or advance some brand of heterosexual supremacy. Instead, while Loving represents a “thou shalt not” standard as to the legislative function (i.e., thou shalt not legislate out of animus towards a group), Iowa’s high court sets forth a “thou shalt” mandate – i.e., thou shalt actively embrace, endorse, and promote all cultural viewpoints represented in the jurisdiction. This is a relatively new attitude of jurisprudence, and in my view, a dangerous one. I believe it can lead to something like what Europeans are now seeing, which is the wholesale forfeiture of their established yet passive culture to the insurgence of a militant-Islamic one. (Of course, I am certainly not comparing homosexuality to Islamicism; I am merely suggesting that the kind of thinking underlying the Iowa decision represents a dramatic intellectual shift that undermines the people’s ability to define their own cultural norms.)
Posted by: Tim Kowal | April 7, 2009 11:53 AM
(Sorry for the double post.)
Posted by: Tim Kowal | April 7, 2009 11:56 AM
This is not a reductio argument. For it to be you would first have to explain why polygamous marriage is absurd. Of course once you do that then you'll have your compelling state interest argument, the bar recognized in this affirmation of Iowan's constitutional rights.
So if polygamy is indeed absurd you've defeated your own argument. If it is not then this is not really a reductio but a transparent attempt to build false equivalence and appeal to emotion.
Posted by: Abby Normal | April 7, 2009 12:11 PM
Re Michael Heath
We should also notice that Mr. Kowals' website includes a defense of John Yoo. He is also a practicing attorney in Orange Çounty, Ca., a bailiwick which formerly was represented by the late Congressman Jame Utt, who was even nuttier then Congresswoman Bachmann (as hard as that may be to believe). Mr. Utt once sent out a mailing to his constituents claiming that 300,000 Chinese Communist troops were massed in Baja California poised to invade the United States.
Posted by: SLC | April 7, 2009 12:11 PM
Tim,
You said:
Loving v. Virginia *was* decided at the ballot box. The majority of citizens did not want the races to mix, that it was immoral. Now, using your logic, how can you conclude that the "Loving v. Virginia represents the proper standard by which a statute could and should be overturned – when the purposes behind it are corrupt"?
Now, you didn't say "moral issues are decided at the ballot box, except when the purposes behind it are corrupt". You didn't mention anything about purpose only what was decided at the ballot box. But, the fact is, in Loving v Virginia, a clearly "activist" court overruled the will of the people and struck down the law, which you seem to have no problem with in that case. How do you reconcile these two conflicting views? Why can't the Iowa supreme court strike down a law they feel the "purposes behind it are corrupt"?
Posted by: MyPetSlug | April 7, 2009 12:29 PM
The pro-polygamy argument does not eradicate unequal protections or denial of contractual rights that the pro-gay marriage argument makes. Contracts are between two parties; the results of polygamy clearly show that the greater rights of 3rd parties are damaged in polygamous arrangements, i.e., prior wives. Gay marriage prohibitions both exercise unequal protection and denial of equal rights to form contracts. Gay marriage does not inflict harm on the greater rights of 3rd parties like polygamy does.
Making a pro-polygamy argument to avoid dealing with the equal rights of gay people is a red herring. No respected constitutional scholar would make such an argument, at least I haven't seen one do it, only idiotic ideologues like Bill O' Reilly.
Posted by: Michael Heath | April 7, 2009 12:36 PM
Tim Klowal: Of course, I am certainly not comparing homosexuality to Islamicism....
Huh? What? Comparing homosexuality to Islamicism is exactly what you did do.
Posted by: Chiroptera | April 7, 2009 12:39 PM
Tim Klowal: Loving v. Virginia represents the proper standard by which a statute could and should be overturned – when the purposes behind it are corrupt.
Oh, yeah. That is clearly spelled out in the Iowa and the US Constitutions. Unlike, say, that citizens shall have the equal protection of the laws.
Posted by: Chiroptera | April 7, 2009 12:44 PM
I think Ed should send Mr. Klowal's name to the Thomas More Law Center; they can always use another attorney of his caliber.
Posted by: democommie | April 7, 2009 12:54 PM
Tim Kowal writes:
"I would be interested to know how others would respond to the reductio argument posed in my original comment: if Iowa’s decision is correct, what, if anything, stands in the way of extending the right of marriage to polygamists?"
Tim,
Nothing. Those who think they can handle multiple spouses ought to be allowed to do so.
****
To the readership:
If one is worried about males who collect wives in a harem-style arrangement - that's a separate issue from the legality of polygamy. That has to do with the issue of treating wives like property, which most of us agree should not happen, even with only one wife.
I say most of us, but there are many - men and women - who think their religious texts give the husbands the power to "lord it over" their wives. That is, as I note, an issue of the rights of women to be treated equally to men under the law and in society - not something inherent in polygamy.
And, to deal with the idea of marrying children - it is permissible to set a minimum age of consent for marriage as it is to set a minimum age of contract for any other kind of arrangement.
Which gets back to the idea of gay marriage in the first place - any competent party should be allowed to enter into any contract they choose and all such contracts should be treated the same way under the law. There is no distinction made between same-gender people who enter into any other kind of business contract - who purchase a home or cars in their names, or who take a vacation together.
What rationale is there for excluding same-gender marriages from the automatic extension of "tenants in common" or "community property" aspects of contracts that is granted to hetero-gender marriages?
What rationale is there from excluding same-gender marriages from the automatic extension of the right for one spouse to make health-care decisions for the other spouse that is granted to hetero-gender marriages?
What rationale is there from excluding same-gender marriages from the right to adopt children that is granted to hetero-gender marriages?
I don't know of any, but perhaps there is an argument that is not couched in religious dogma. If there is, I'd like to hear it.
Posted by: Boink! | April 7, 2009 12:59 PM
Tim posted: "But, the fact is, in Loving v Virginia, a clearly 'activist' court overruled the will of the people and struck down the law, which you seem to have no problem with in that case."
So Tim let's take a hypothetical. Suppose the legislators of Iowa passed a law that stated "first kill all lawyers". This law might be enormously popular with the voters of Iowa. However that isn't the issue here. The Courts have to judge not on the basis of 'is this popular*', but rather 'is it LEGAL. Clearly, in this case, not, for multiple reasons, therefore the Courts would strike it down.
The legislators speak for the people, the Courts speak for the law+. (Theoretically)
In this specific case the State of Iowa has to produce compelling State's interest to why the law should be allowed to stand, they failed to do so. The law was overturned.
What compelling State's reason could you give for allowing discrimination? -DJ
*This means Judges aren't swayed by the whims of the mob, but are impartially true to the law.
+A collection of judgements and legislation handed down since 'time immemorial'
Posted by: DingoJack | April 7, 2009 1:57 PM
To Boinks! argument:
I too can make an argument consistent with the Constitution for polygamy and also against polygamy. However, the argument for polygamy brings elements of the Constitution that are not relevant or not nearly as relevant as gay marriage. Therefore, conflating them is a mistake (and I'm not saying you conflated them Boinks!, merely pointing that out).
While I can easily make an argument for gay marriage, I can not and have never seen anyone else make an argument against gay marriage that would withstand an honest attempt at scrutiny - prohibition of such is clearly not constitutional at least under the equal protection clause.
While the religious right claims they want a constitutional amendment to deny gays their rights as a defense against "activist" judges making "unconstitutionally" invalid rulings; I think that's only what the sheeple believe 'cause that's what they've been led to believe. I suspect their leaders understand the Constitution as currently amended is surely on the side of protecting gays' rights, which is why I suspect they lobby for such an amendment in order to institutionalize their hatred of gay people and gay people's children.
Posted by: Michael Heath | April 7, 2009 3:22 PM
Michale Heath:
Well said. Hey, howsabout an amendment to make churches subject to taxation. I'd vote for that one in a heartbeat.
Posted by: democommie | April 7, 2009 3:34 PM
Michael Heath,
Not just hatred of gays but a good measure of fear too. Harvey Milk wanted all gays outed (according to the film anyway) so that everyone would see that they knew a gay person and there was nothing to fear or loathe.
democommie,
I'd be in favor taxing all religious institutions as well. Especially if it could be arranged to hurt the hypocrites especially hard. Maybe a 10 year triple penalty clause for any church where a leader was convicted of doing something their church is against.
Posted by: MikeMa | April 7, 2009 3:44 PM
Democommie - sorry to beat the dead FairTax horse again. But I would argue for two policy fixes:
1) FairTax paid by everybody, including non-profits, zero prebates for any non-person entities.
2) In return, churches should not be prohibited from supporting specific political candidates. While I understand the current prohibition meets constitutional muster, I've always found it violates the principals of the Constitution related to rights of speech, assembly, and petition (the latter two might over-extend my argument beyond reason).
Posted by: Michael Heath | April 7, 2009 4:17 PM
Michael Heath:
I'm for a fair tax, just not "the" Fair Tax, as it's currently contemplated. I will go along with many of your points on this. I just want an ironclad promise from the pols that it won't turn into another fucked up system for transferring wealth from the middle class to others. If my thinking is correct, we should all bear some portion of the upkeep of our nation.
Posted by: democommie | April 7, 2009 4:33 PM
democommie - I am not completely sold on the FairTax even though I argue for it for reasons similar to yours:
1) It's the best way I've found, however . . .
2) I'd like to see more economists weigh-in on it in a manner specific to America rather than more abstractly for any regulated capitalistic country as they do know (most peer-reviewed articles regarding consumption tax advantages talk about economies in general). It's not a peer-accepted optimal theory for this country, instead it's 'a' theory. Let's have more debate.
3) I don't like the guys driving it politically. So I don't trust them, I just the concept, which was developed by main-stream economists. I'd prefer to see a more moderate group of politicos pick it up and drive it home, such a cause would drive compromise to round some rough edges (like it's non-progressive nature after the prebate is exhausted or how it taxes non-working fixed income people like those that are retired or on disability.
Personally I also think another feature of it is that it would get more people to engage with their government in terms of voting for the rate and what we spend money on given it's incredibly transparent, simplistic in nature, while also taking alot of motivation away for mature cash-cow businesses to lobby the government (not that this would make that go away, just significantly reduce it).
The current structure has us all throwing up our hands as if we're screwed with no power to do anything.
Posted by: Michael Heath | April 7, 2009 5:13 PM
Michael Heath:
Agreed.
Posted by: democommie | April 7, 2009 8:46 PM
I have just finished reading (struggling) through the courts verdict and all I can say in Halleluya!
It is unfortunate that the opposers of gay marriage will no doubt make a conscious descion not to read it; thus avoiding the ignomy of having their pathetic arguments systematically and logically destroyed.
One can only hope that further states follow suit, and with the realization that the sky will not fall in because of it (SSM) people may change their mind and those states that have changed their constitutions to ban SSM will think again about their actions.
I can only hope that one day my country (australia) will follow suit.
Posted by: Simba | April 8, 2009 9:14 AM