A Stitch in Haste

The Iowa Supreme Court decision finding that state’s statutory ban on same-sex marriage to be unconstitutional is a quick and relatively easy read — so easy that those familiar with equal protection analysis might almost find it boring, but for the issue at hand.

Just a few highlights:

• Even this court felt compelled to address the increasingly muddied conflation (most notably in California, obviously) of “mob rule” with “the will of the people” —

  Finally, it should be recognized that the constitution belongs to the people, not the government or even the judicial branch of government. All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people, and they have the right, at all times, to alter or reform the same, whenever the public good may require it. While the constitution is the supreme law and cannot be altered by the enactment of an ordinary statute, the power of the constitution flows from the people, and the people of Iowa retain the ultimate power to shape it over time. [Internal quotations omitted.]

  Perhaps, but that merely reinforces the importance of always keeping the proper sequence of the analysis in mind. A governmental action is not “right” simply because “the people” did it. The legitimacy, or illegitimacy, of governmental action exists independently of how that action came about. The government, or “the people,” can do legitimate things unconstitutionally, and can do illegitimate things constitutionally. The two sets of actions — “legitimate” and “constitutional” — may have a very large intersection, but they are not identical.

• The court explicitly held that “discrimination based on sexual orientation” is not “discrimination based on gender” (e.g., “a woman can marry me but a man can’t…”). That argument, though repeatedly tried, simply never works — even in friendly forums. It’s probably time to retire it.
• As I tweeted while reading the opinion: Did the bigots really suggest that gay marriage bans are in fact not true “sexual orientation discrimination” because, technically, two straight men could not get married either? Have they really become that pathetic?
• As I noted repeatedly during the California drama, the net outcome in Iowa should not eclipse another all-important victory in the opinion: that sexual orientation is a suspect class subject to intermediate scrutiny. Even under the worst-case scenario in California, that high court’s earlier ruling that gays are a suspect class will remain good law and will make any attempt to discriminate against gays impossible in that state without a constitutional amendment (i.e., like Proposition 8).
  
  Now Iowa has also found that any anti-gay laws, and not just this marriage ban, must be subjected to heightened scrutiny. This long quest to get a jurisdiction — any jurisdiction — to declare sexual orientation a suspect class has not only been achieved, but may even be snowballing.

  [Note: Recall that California does not have "intermediate scrutiny," but only "strict scrutiny." Iowa, meanwhile, specifically noted that it was not saying that sexual orientation discrimination does not warrant strict scrutiny, because "intermediate scrutiny" was sufficient to strike down the marriage ban. The Iowa court may someday find cause to apply strict scrutiny to future anti-gay laws, but intermediate-level scrutiny is itself a monumental victory that, like In Re Marriage Cases, can be cited as persuasive authority in future litigation in all gay rights matters, not just same-sex marriage. One cannot understate the importance of suspect class status, regardless of what the California Supreme Court ends up doing with Prop 8.]

• Ironically, the Iowa court conceded:
  
  

  Although a small number of state legislatures have approved civil unions for gay and lesbian people without judicial intervention, no legislature has secured the right to civil marriage for gay and lesbian people without court order. [Emphasis in original.]

  Going back to the bigots, isn’t it astonishing how adeptly they can, with a (literally) straight face, point to the plethora of bigot amendments as proof of “overwhelming” opposition to full marriage equality while simulataneously insisting that gays are not politically powerless because they enjoy an anti-discrimination law here and there and civil unions or domestic partnerships in a jurisdiction or two? (More on Vermont below.)

• While I fully appreciate the basis for keeping these lawsuits grounded in state constitutional law (i.e., to avoid federal appeals), I still wish these courts would cite more often to the core holding of Romer v. Evans (i.e., that mere animus toward an insular minority is never a legitimate governmental interest). The Iowa Supreme Court said as much:
  

  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.

  Stated differently: Bigotry for the sake of bigotry is not a legitimate function of government. But if the campaign for full equality is ever to jump to federal courts, then people are going to have to start acknowledging that Romer was in fact written and is in fact still good law.

• On the other hand, it was wonderful to finally see a state supreme court dismiss, summarily and almost indignantly, the argument that marriage bans are justified by the “procreation” or “kids do best with…” arguments, and to do so based on the double-edged sword of simultaneous overinclusiveness (why ban gays who have no intention of ever having kids from getting married?) and underinclusiveness (why not ban bad straight parents from getting married?). Only New York and Washington States’ high courts bought into that nonsense; hopefully no more courts will.
• Finally, the court stated the obvious: Civil unions — “separate but equal” — are inherently unequal and therefore an absurd, offensive and unacceptable compromise. Are you listening, New Jersey Supreme Court?

The case is Varnum v. Brien, No. 07–1499 (Supr. Ct. Iowa, April 3, 2009) (PDF – 69 pages).

Lambda Legal’s press release here. More thoughts from Hunter of Justice, Con Law Prof Blog.

—

As for Vermont: As I tweeted: Celebrate, to be sure, but remember also — It should never have needed to be put to vote in the first place. Gays, like any insular minority and indeed like any individual, should never have to feel grateful to the mob for not acting like a mob — just as we should not be expected to thank a thief for not robbing us. The notion that “all power comes from the people” is a axiomatic statement of fact, little different from “anyone with a gun can kill you.” Metaphysics is not politics, and neither is it ethics.

The correct question is one of legitimacy. The truth that “all power comes from the people” does not nullify the additional truth that such power can be abused — no matter how couched in blather about “democracy” and the “will of the people” it may be. If a statute — or a constitution or even a court ruling — allows power to be misused, then the statute — or constitution or even court ruling — is illegitimate.

So again, celebrate Vermont — but remember what you’re celebrating: not “legitimacy” but only the “absence of illegitimacy.” Two very different concepts indeed.

And stay indignant and vocal about the ludicrous schizophrenias in New York and now D.C. (where gays can “be” married but cannot “get” married) and New Jersey (“separate but equal” civil union gobbledygook).

Filed under: Constitutional Issues, Gay Rights and Issues, Law, Libertarianism, Society, Religion, Culture Wars