The Legal Importance of the Iowa Marriage Decision

(Originally posted on Huffington Post.)

The Iowa Supreme Court decision striking down the state's exclusion of same-sex couples from marriage is the third from a state high court to treat government discrimination against gay people generally as a serious constitutional problem (the other two are the California and Connecticut marriage cases). All three courts say that a long history of discrimination driven by prejudice should make courts suspicious anytime the government singles gay people out. While there are some differences in details, the three decisions in essence say that if the government claims that gay people are truly different (and therefore should be treated differently), it has to back the claim with proof, not speculation.

The demand for proof is a crucial. The argument that is most often used against us in marriage cases is that children do best with a mother and a father, and that marriage is set up to promote heterosexual parenting. For quite a few years now, there has been solid scientific evidence that sexual orientation has nothing to do with the ability to be a good parent. That's why we have support from all of the nation's major child welfare organizations.

But as long as the courts were willing to let discrimination stand if the justification for it was "conceivably" logical in the abstract, it was tough to win the parenting argument. But when proof is required — as the Arkansas case on foster parenting in 2006 showed — we are in much better shape.

These three state high court rulings are not limited to marriage; they apply to any form of government discrimination. So they should be a help in cases involving schools, jobs and most particularly, cases about adoption, foster care and parenting.

Of course, these rulings technically apply only in the three states (and the three are among the best on government policies and gay people). But I think these opinions will be influential in many other states as well.

It helps that one of the three decisions came from the California Supreme Court. As I've mentioned before, it's the most influential state court in the nation. That its reasoning is now backed by two other high courts — both generally regarded as solid but not trailblazing — helps greatly. The ideas begin to look mainstream.

But it is the ideas themselves — the intellectual power of these three opinions — that will give them real sway. All of the bad decisions that have said there is nothing particularly suspicious about government discrimination based on sexual orientation have involved either sloppy thinking or intellectual cheating (or in the case of the New York Court of Appeals, reasoning that wouldn't get a passing grade in a basic constitutional law class). The cases that have supported us haven't always been completely rigorous. These three opinions are.

Here's an example. In deciding whether to be suspicious about government discrimination against a group, the U.S. Supreme Court often looks at whether its members appear able to protect their interests through the political process (although all of these cases are based on state constitutions, most state courts use the analyses that the U.S. Supreme Court uses for the federal constitution, even if they often come to different conclusions than the U.S. Supreme Court does). Several of the bad opinions that say there is no reason to be concerned about discrimination against gay people point to state laws against sexual orientation discrimination on the job or in housing. Those laws, the bad decisions say, prove gay people are not politically powerless.

As the California court pointed out, if an absolute lack of current political influence were the measure, there'd be no reason to be concerned about government discrimination based on race, religion or sex, since all those traits receive far more comprehensive legal protection everywhere in the United States. But all U.S. courts continue to treat race, religious and sex discrimination as deeply suspicious.

The Iowa case, following California and a very powerful part of the Connecticut opinion, says that as used by the U.S. Supreme Court, the question is not whether the group has some political influence, but whether it has the capacity to bring a prompt end to discrimination against it. That, the opinions say, is why we continue to be deeply skeptical of race and sex discrimination, and should be skeptical of sexual orientation discrimination as well.

What sets the Iowa opinion apart is a passage near the end. After dealing with the arguments the state offered to justify the exclusion of same-sex couples, the Iowa Supreme Court addresses head-on what it says is the "unspoken" reason many support the exclusion: religious opposition.

The Court says that while many oppose marriage for religious reasons, religion cannot justify a law excluding gay people from marriage. "State government can have no religious views," the opinion says, "either directly or indirectly expressed through its legislation." "This proposition," the Court goes on to say, "is the essence of the separation of church and state."

That proposition ought to be obvious, but in the last 25 years, it seems almost to have disappeared from civic discourse in America. It took guts for the Iowa court to say what virtually no other government official has been willing to admit. By bluntly pointing out that religion has driven much of the debate, and reminding other courts and legislatures of their obligation not to enshrine religion in law, the Court gave a deeply practical rationale for insisting that marriage exclusions either be based on rigorous logic and evidence or be struck down. And it is that down-to-earth honesty that will, I believe, make this a deeply influential opinion.

The Iowa case was handled by Lambda Legal, which did a terrific job. We all owe them a debt of gratitude. The ACLU filed briefs in support as a friend of the court, written by John Knight in our Chicago office.

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what is marriage?

It is someone having a baby, so that two are then one, one other individual person in life, a whole entire entity of their own. Made of two people, two individual people that have then become one. There are issues around it, and it is not that I care that anyone is gay, that is not an issue for me. It is that as a single mother you want to take away my rights to take care of the child that I love, that I risked my life to give birth to, that I protected from the time I concieved it, that I would protect with my own life if I could and needed to. Fight for me, don't let me go on feeling that I am all alone and everyone in the world threatens my families safety because I am not seen as a good person because my child's father didn't marry me! It is ludicrous, it is hypocrisy at its finest! It is rediculous! If you want my child then you will have to fight me, if you want me to keep my child and you want to do all that you can to give me and my child the full protection and rights that every other individual in America has then I will stand with you and there will be no one that I would not stand up against if I knew that I had the right kinds of support. Does that make any sense to any of you? Why should I be considered crazy for wanting to keep a child that I carried inside of me for nine months and gave birth too, why should I want to give my child to you or anyone else? When all human rights are is something that goes to the highest bidder or the one with the most power in life, then sorry that isn't human rights and it isn't dignified either! NO one is trying to take my child as I know of, just trying to make a point. It is done to women every day, and I think it is a shame! Mothers need to be allowed to be moms and babies need their mothers! Come to think about it they need their fathers too any time that is possible! Fight for the rights of the family, not what you want because your special, none of us is special enough not to be discriminated against in life, I have been over and over and over again. I never seemed to fit in the protected categories or the unprotected categories either!

Dan Foster

When will the ACLU finally take on the Establishment of religion in what is the legalization of marriage? The state has no business in it.

Marriage, by definition, is an overwhelmingly CHRISTIAN institution in the US.

Civil Unions should come to be recognized as the only state sanctioned social contract between two adults (and it shouldn't be anyone's business what their gender is). Civil Unions should have all the legal rights afforded to what is now given marriage.

So, go to your local church, jump over a broom, or drink the blood of a chicken to get married for all anyone should care. But, Civil Unions should be the ONLY legally recognized "union" of two adults by the state.

David Drissel

Dan, you are missing the point of the Iowa Supreme Court decision. The Court clearly distinguished between religious marriage and civil marriage. It is important that all consenting adult couples in this country have access to civil marriage licenses. Religious marriages - whether Christian, Jewish, Muslim, etc. - are symbolic and voluntary. But civil marriages - recognized by the state - are required if one is to receive the civil rights, status, and responsibilities accorded to married couples under the law. It is time to eradicate "civil unions" from our vocabulary. That only clouds the issue and creates a separate - but unequal - institution. It is far better to simply refer to civil marriage (which is truly at issue here) - in contradistinction to religious marriage (which is beyond the normal purview of the state).

David Drissel

Dan, you are missing the point of the Iowa Supreme Court decision. The Court clearly distinguished between religious marriage and civil marriage. It is important that all consenting adult couples in this country have access to civil marriage licenses.

Religious marriages - whether Christian, Jewish, Muslim, etc. - are symbolic and voluntary. But civil marriages - recognized by the state - are required if one is to receive the civil rights, status, and responsibilities accorded to married couples under the law.

It is time to eradicate "civil unions" from our vocabulary. That only clouds the issue and creates a separate - but unequal - institution. It is far better to simply refer to civil marriage (which is truly at issue here) - in contradistinction to religious marriage (which is beyond the normal purview of the state).

Socrates

I agree--get government and religious bias out of the marriage business and let contract law control the legal needs of consenting adult relationships.

Quoting from the Iowa ruling, "A specific tradition sought to be maintained cannot be an important governmental objective for equal protection purposes."

When it comes to equality, the only tradition that should prevail is equal protection for all classes and the marginalization of none...

what is marriage

Why should "equal protection" be seen as being for "classes of people" rather than all individual people equally? If that is indeed what this is all about, having equality under the law?

That leads to the question of if it is the marital establishment of the government one is being protected by, from, or against, then why not all people that are "married" be protected equally in, by, or from that institution?

That might lead people to asking what marriage is? Which leads me back to the one thing I really see it as being no matter what anyone says, it is the binding of two things or people into one seperate entity that could not be formed on its own merits without the other two to begin with, such as when two people have a child. Of course with science and cloning that might also eventually change?

That child, formed by the union or "marriage" of those two seperate people, becomes one individual person dependent on the "marriage" or initial union of the other two with a whole and entire seperate life of it's own. Like it or not the parents are married forever after in the truest sense of the word. That is true no matter what the situation is at the time or what it becomes later on.

So rather than being discriminated against and disrespected, wouldn't that mother and even father that formed that most perfect union both deserve equal respect and protection under any marriage laws, policies, or programs that were provided by the rules of marriage under any code of government?

That is what my issue with all of this is and I am not sure I know how to explain it any better.

This also puts more thought back into what "marriage" really is and not the bastardization of a whole entire group of people, the children that are so called formed outside of wedlock. One might also ask in these cases what divorce might be?

That is how I see this kind of discrimination still continuing over time, and these children and their parents being discriminated against. It is a plain form of denial of rights, oppression, and abuse of a whole class of people, let alone the individuals involved. Based on fairly much the same principles. Who can really tell me that isn't so?

So what is marriage?

Where did my post go? Get the government and religion and this group and that and this one and that out of it and then, you don't have to worry about what anyone else thinks, right? However, what if too many people have already made too many statements and in too many people know for a fact that is not what this is really all about, getting the government and religion out of it!

So what is marriage?

Why should "equal protection" be seen as being for "classes of people" rather than all individual people equally? If that is indeed what this is all about, having equality under the law? That leads to the question of if it is the marital establishment of the government one is being protected by, from, or against, then why not all people that are "married" be protected equally in, by, or from that institution? That might lead people to asking what marriage is? Which leads me back to the one thing I really see it as being no matter what anyone says, it is the binding of two things or people into one seperate entity that could not be formed on its own merits without the other two to begin with, such as when two people have a child. Of course with science and cloning that might also eventually change? That child, formed by the union or "marriage" of those two seperate people, becomes one individual person dependent on the "marriage" or initial union of the other two with a whole and entire seperate life of it's own. Like it or not the parents are married forever after in the truest sense of the word. That is true no matter what the situation is at the time or what it becomes later on. So rather than being discriminated against and disrespected, wouldn't that mother and even father that formed that most perfect union both deserve equal respect and protection under any marriage laws, policies, or programs that were provided by the rules of marriage under any code of government? That is what my issue with all of this is and I am not sure I know how to explain it any better. This also puts more thought back into what "marriage" really is and not the bastardization of a whole entire group of people, the children that are so called formed outside of wedlock. One might also ask in these cases what divorce might be?

That is how I see this kind of discrimination still continuing over time, and these children and their parents being discriminated against. It is a plain form of denial of rights, oppression, and abuse of a whole class of people, let alone the individuals involved. Based on fairly much the same principles. Who can really tell me that isn't so?

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