Subscribe to Breaking NewsRuby-Sachs: Iowa Supreme Court deliberates on gay marriage
Yesterday, Lambda Legal concluded their arguments for gay marriage in front of the Iowa Supreme Court. Now, I’m sure not many of you were skipping work to tune in live, but I had a chance to watch both sides of the case presented to the panel of judges.
The Polk County attorney needed only to prove that there is one rational reason that is somehow related to a valid objective to maintain the definition of marriage as between one man and one woman. This reason doesn’t even have to be the actual reason for the passing of the legislation (that means there can be evidence that the marriage definition was passed because the legislature hates gay people, but it can still stand if another reason justifies its existence).
Although there was much argument about whether LGBT people deserved better protection under the Constitution, at the end of the day, like most courts across the country, the Iowa court will probably only ask for a rational basis for maintain heterosexual marriage.
From the judges’ response throughout the argument, it became clear that one argument made by Polk County will remain a difficult point to overcome: excluding same-sex couples from marriage preserves the traditional definition of marriage.
Throughout U.S. legal history, preserving traditions has been the basis for many Constitutional violations. The saying of a prayer at the opening of Congress might violate the separation of church and state, but it is an American tradition. A city buying a Christmas display with tax dollars should violate the Constitution as well, but it is an expression of American religious tradition.
As far as I’m concerned, the logic doesn’t hold in this case. Traditional marriage had no fundamental role in the establishment of the United States. While I may have to admit that the conflation between God and government has always been a significant element in American political history, how has marriage played the same role? As well, if preserving traditional marriage is really the objective of the legislature, then why are we letting Black people marry at all? Seems like excluding racial minorities is a pretty important American tradition, too.
One Justice asked, “aren’t they permitted to make one last stand,” for traditional marriage? (I’m paraphrasing his exact words). Marriage has changed so much over American history. How is it that the exclusion of LGBT people from the institution gets to be permitted as the “last stand,” while every other change is universally acknowledged as progress?
@david
i’m in southern iowa, following this case as well. i also agree this isn’t over yet.
i’m rooting for all of you up there. this isn’t the separation of church and state, this is the separation of americans from a basic right.
thank-you and bless you for helping fight this.
I agree with yoy, David. I watched the session live and I saw they argued very clearly that “tradition is not to be taken as an excuse to deny civil rights”. Don’t get the point of this article.
Iowa has established a precedent in sending this issue so far through its legal system. Sometimes you can live in the Flyover and take your non-progressiveness for granted. Then recall that the Progressive movement of the early 20th Century was in places like Wisconsin and Cleveland (Mayor Tom Johnson). Just because people don’t live in a megacity doesn’t mean they always come to the most conservative conclusion. Just because “old ways” may perservere doesn’t mean that average people in a farm state don’t ask the same questions as people in Park Slope or Silverlake.
I won’t be surprised if the Iowa court goes for tradition. It’s still a more progressive gesture on gay issues than CA, IL or NY have managed this year, and those of us in the Flyover should pay attention to that. Our neighbors may not be deaf to reason, and maybe we should treat them as such instead of running to a tiny-box apartment off La Cienega.
Emma, Where you and I differ is on the nature of the liberty interest in the due process clause. You seem to believe that the question presented is whether or not there is a right to same-sex marriage. I disagree. To me, the issue presented is whether or not there is a right to marriage by same-sex people. This is not a question of semantics; it makes a tremendous difference in the arguments and who has the burden of proof and the extent of that burden.
If the question is whether or not there is a right to same-sex marriage, the standard for review is a rational basis test (which you assume is the proper standard). The plaintiffs have the burden of proof.
However, if the issue presented is whether or not there is a right to marriage by same sex couples, then the standard for review is a strict scrutiny test which involves the State proving a compelling state interest and a showing that the statute involved is the least restrictive means of accomplishing that compelling state interest. In this case, the burden is on the State to prove beyond a reasonable doubt the a compelling state interest is involved. For a further review of this distinction see In re Marriage Cases: caselaw.lp.findlaw.com/data2/californiastatecases/s147999.pdf
at pages 51-55.
The U.S. Supreme Court in Bowers v. Hardwick made a similar mistake when evaluating whether or not there was a right to homosexual sodomy. The Court in Taylor v. Texas corrected this error by reframing the issue presented and discussing the nature of the liberty interest involved.
I think this is where we differ on the various gay marriage cases. I believe that the standard of review is a strict scrutiny test and you believe that standard of review is a rational basis test.
Prof. Donald Gaudard
David,
Thanks so much for writing in. I do not suggest that the case is lost, or that your lawyer did not do an excellent job. In fact, I think logic and history is on our side. I was simply pointing out how low the rational basis standard is and how those justices that do wish to thwart gay marriage (and let’s be honest, not every judge in that room seemed on our side) have an easier time than they should justifying their objection. I wish only the best and thank you for your commitment to this case.
Professor Gaudard,
You spend so much time insulting me and, it seems, very little time reading my writing. I read the trial decision, read many of the briefs filed and watched the arguments. You need to understand that this is a much more complicated legal fight than you suggest. Even though the trial judge in this case was brave and fair, many other judges have not been. And those decisions are also based in law. Please understand that I am merely pointing out the lack of protection LGBT people have in the United States.
As always, thanks for reading and commenting.
Emma
Anyone who is interested in reading the opinion of the trial court can go to:
http://data.lambdalegal.org/pdf/legal/varnum/varnum-d-08302007-ia-district.pdf
If you are not a lawyer you can skip to page 43 where the discussion and analysis appears.
Although the decision of the trial court is not binding on the Iowa Supreme Court, it indicates the thinking and rational of the trial court and is therefore persuasive.
Once again I have to ask whether or not you even read the decision from the trial court. That court held that marriage is a fundamental right; that the plaintiffs were denied due process of law; that the denial of marriage licenses was a violation of the equal protection clause; that sexual orientation was a quasi-suspect class which shifted the burden to the defense to prove that a strong state interest was involved in denying the marriage licenses.
The oral arguments which I watched in their entirety was much more favorable to the gays than it was to the state.
Why are you so negative when it comes to the issue of gay marriage?
Prof. Donald Gaudard
Good fortune, David! I hope that the case goes your and our way! It would be great to have a state in the middle of the country that is turning our way, at least from the legal and intellectual perspective.
Emma, I’m intrigued, and confused, by your main point here. You say most courts need look for only one reason to not change traditional marriage and in this case that reason clearly might be preserving traditional marriage.
I think in CA and MA, where we won in the courts, they would have that same argument? i.e. in Mass we should have lost because the Supreme Judicial Court could have said preserving traditional marriage gave them a rational basis for…preserving traditional marriage?
Please go a little deeper here: how is doing something a rational basis for doing it? I really want to understand, as I’m sure the lawyers out there that need to fight this horrible strategy, if it is as tempting as you say it is.
Thanks.
Emma –
I watched this hearing live and I was impressed at the Justices focus on parity. They did ask a lot about civil unions and their difference with marriage. In this vein, Dennis Johnson gave a great argument for gays and lesbians using his own marriage as a comparison. He used the idea of personal experience paralleled with that of the petitioners and this was a great way to show the reasons for the government to not have a role in blocking who marries who. He used this example throughout this argument and the fact that he was once Iowa’s Solicitor General I am sure brought it home to many of the Justices who know him. The Polk County Attorney seemed to strain over the idea of proving his case. The Polk County Attorney just kept repeating that the ideal of traditional marriage shouldn’t be changed. Johnson’s comparison was a good one in countermanding the Polk Cty Attorney’s assertion that marriage must always be for procreation or raising children but pointing out that some of the families petitioning had children and were told not to talk about their families in school out of respect for other children. The fact taht there were many questions about civil union and marriage comparisons could be heartening in that at least some protections could come out, even though marriage is preferable.
Maybe I’m dreaming but wouldn’t it be wonderful this spring to find same sex marriage in Iowa thanks to this court and back again in California thanks to the CA Supreme Court. I hope and you know what, it is possible!
As one of the 6 couples involved in this case, and that fact that we were THERE in the Court; you have missed some very significant points that were made for ‘our side’. Don’t give up the fight quite yet…
‘excluding same-sex couples from marriage preserves the traditional definition of marriage.’
just because something has “always been done that way” does NOT make it the correct thing to do