So I found a place to download the entire Varnum v. Brien decision and I printed it off (using up a fair amount of my mother's toner in the process) and over the weekend, I read it. So that you, all two of my readers don't have too. I'm approaching this analysis from two solid points of view:
1. I'm not a lawyer. If you want someone to parse the legalese, get your own lawyer. Just beware, they bill out at about $200 an hour. I do this for free.
2. I'm approaching this from a strictly legal point of view. I understand that many objections to gay marriage are religious in nature, but from the point of view of this analysis, they are, to me, irrelevant. I want to look solely at the law and the constitution of the state of Iowa. We can parse the Bible and religious objections until we're all blue in the face- and I want to take apart what the court says- and only that.
Right- now that's out of the way, let's get on with it:
To me, this wasn't a reach for the Supreme Court- plain and simple, the statute on the books that limited marriage to one man and one woman was an equal protection violation and thus, the plaintiffs were entitled to equal and free access to the institution of marriage. The County (in this case Polk County) failed to make a single significant argument stating why exactly same-sex couples should be denied access to the institution of marriage.
From the outset, the Court goes out of its way to acknowledge the fact that the plaintiffs are essentially just like ordinary Iowans, save for one small difference: they're attracted to members of the same sex. The list the occupations of all of the plaintiffs and they have everyday jobs just like all of us. These are not 'special people' in the eyes of the Court- merely ordinary Iowans, entitled to the protection of the law just like everyone else.
The plaintiffs provided a concrete record of the disadvantages they faced due to their lack of access to the institution of Civil Marriage- and the County offered up a fairly weak rebuttal that the statute in question limited marriage to one man and one woman because of the 'harm to the institution of marriage' and the 'harm to children raised by same sex couples.' Their evidence was weak at best- and the plaintiffs rebuffed this line of argument easily.
The court then takes the time to define it's role in the case. This I like, because the tone to me that was taken is one of pragmatic moderation:
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.
This is beautiful because to me, this is the EXACT role of the courts. In a nutshell. And moreover:
A statue inconsistent with the Iowa Constitution must be declared void, even though it may be supported by strong and deep-seated traditional beliefs and popular opinion.
In other words, they want to be as objective as possible and stay above the 'fray' attached to this issue- they say it from the outset and they stick to it like glue. The traditional shriek that we normally hear when decisions like this are handed down is that cry of 'judicial activism.' And that the people 'should be allowed to vote.' Implicitly and explicitly the court rejects both of those notions- implicitly, because it acknowledges that the Constitution belongs ultimately to the people- and makes a nod to the fact that the role of the Courts is to ultimately uphold the supremacy of the Constitution and protect our republican form of government. We may vote, but we tend to forget that we are in fact, not a democracy. We're a Republic. We don't ask for a show of hands, because if we did, we might still have things like segregation and a restricted franchise.
Explicitly, however, they take what to me is a moderate stance on 'activism.' It's not their job to change things, but they acknowledge explicitly that the Constitution does shift over time and that the people retain the ultimate right to do that:
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 to retain the ultimate power to shape it over time.(Italics mine, ed.)
And moreover, the State Supreme Court has a long historical tradition of upholding equal protection to draw on. This not only was an easy decision for them, they've got precedent to back it up. I never knew this, but reading this was an education- it blew my mind and made me incredibly proud to be Iowan- all over again: In 1839- before Iowa was even a state, they upheld the rights of a slave and refused to treat people as property. In 1868 and 1873 they ruled against segregation- before Dred Scott and long before Brown vs. Board. We were also the first state in the Union to admit a woman to the practice of law in 1869- 3 years before the US Supreme Court upheld Illinois' decision to bar women from law. There is a wealth of precedent and tradition on their side: absolute equality for all people under the law.
This was so easy for them.
At this point, they plunge into legalese. When dealing with equal protection questions, the court has to decide what level of scrutiny that the given class of persons is subject too. In other words, equal protection violations exist because a group of people is subject to a different standard under the law-- but legally (and this is where it gets fuzzy for me) I believe that they have to determine whether that particular group of people is subject to a higher level of scrutiny because they are suspect for discrimination and unequal treatment. (If anyone reading this is a lawyer, please correct me. I'm almost sure I got that wrong.)
Anyway, they ramble on through that for about twenty pages or so and it's boring. Massively, massively boring- and I didn't understand a lot of it. But it picks up towards the end-- where, little by little, the Supreme Court knocks down any case that Polk County might have had.
One line of argument that made me grin a little was the notion that the statute in question didn't explicitly deny marriage to gay and lesbian couples. They could, it was apparently argued still get married- just to members of the opposite sex. That, the Court said in a firm rebuff was no right at all.
Then there was the whole 'maintaining traditional marriage' thing: the Court rejects this line of argument as being fairly empty in nature. Tradition, it says, is not an excuse for discrimination. Furthermore:
Because the County offers no particular governmental reason underlying the tradition of limiting civil marriage to heterosexual couples, we press forward to consider other plausible reasons for the legislative classification.
In other words: from a legal point of view- the County didn't make its case. Or much of a case at all, for that matter.
The second line of argument was the idea that heterosexual marriage promoted the 'optimal conditions for raising children.' The Court acknowledges the fact that there are studies out there that seem to support this notion, but also points out that these studies aren't that reliable to begin with. And then, they go on to brush this argument aside entirely:
The civil marriage statute is under-inclusive because it does not exclude from marriage other groups of parents- such as child abusers, sexual predators, parents neglecting to provide child support, and violent felons-- that are undeniably less than optimal parents.
Basically, if this was about optimal parenting- it wouldn't just be gays and lesbians that would be excluded from the institution of marriage.
Promotion of procreation and stability in straight relationships were the last two gasps of the County. The Court knocked both of them aside- pointing out that gays and lesbians can have children- with a bit of difficulty to be sure, but it's possible. And to me, the 'stability of marriage' argument- which is the one most often put forward by proponents was the weakest of all. There's no evidence whatsoever that banning gay marriage strengthens heterosexual marriage.
The final point was that the state needed to conserve 'resources.' In other words, gay and lesbian couples might file joint tax returns and claim more exemptions from the state. Or something like that- and there's no evidence to suggest that gay and lesbian couples would use any more or any less resources than your average heterosexual couple.
Wisely, the Court wraps things up by underlining the importance of religious freedom- the implication being that from their point of view, purely civil marriage cannot discriminate in the eyes of the law. Which it can't. There's no purely legal reason that can be put forth against gay marriage- and purely legal reasons are exactly what I want my Courts making decisions on. They don't even touch the question of religious marriage and I like that. I think it's a nod to the deep-seated public feeling out there about this issue and I think if any lawsuits make their way to Des Moines asking that a certain Church be forced to perform a same sex marriage that flies in the face of religious beliefs, I think the implication is that they would look upon that very unfavorable. Civil marriage is in the realm of law. Which is what they deal with- and from that point of view, the legal tradition of the state of Iowa and the Constitution of the State of Iowa is crystal clear.
Everyone is deserving of equal treatment under the law.
Case closed.
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