A Day to Celebrate and an Opinion to Treasure


Today has been a rather crazy day. I woke up late, feeling particularly lethargic, and even BBE announcing to me that Iowa’s Supreme Court found that same-sex couples should be allowed to marry, was not enough to get my brain working. However, after eating, showering, and downing some much needed caffeine, it hit me. Today is certainly a day to celebrate the glory of the decision in Iowa.

How did I celebrate? Like a nerd. I printed off the Iowa Supreme Court’s opinion, which entertainingly has 69 pages, took it to my local Starbucks, and proceeded to carefully read/highlight/and comment on every delicious word.

As a law student, and hopeful future advocate and scholar of all things regarding same-sex marriage, I was absolutely amazed at the quality of this opinion. I hope to do provide a “marked copy” of my thoughts on the opinion later, but in the interest of getting something on the blog today I thought I would just share a little bit.

For starters, this opinion reads like a study guide to some degree. It lays out the reason deciding what level of scrutiny to review the current legislation is important. It then details what the levels of scrutiny are, and what they entail. Then they discuss how they chose what level was to be applied. Then, reviewed the legislation through the lens they had chosen.

The organization and rhetoric in this opinion is one that would allow anyone to understand the court’s logic, and addresses numerous concerns an average citizen might have.

I felt like the court managed to clear up things about the debate that I had always been fuzzy on. They presented the arguments of both sides in a rather neutral way, and pointed out which arguments were sound, and why the other arguments failed. The initial presentation of the arguments can be found on pages 9 and 10 of the opinion. As a law student/scholar I decided I would write down what my thoughts were on each argument, and see how the court agreed, disagreed, or did not consider my argument. I was pleasantly surprised that the court generally sided with me, and I was excited when the court presented additional arguments. The Iowa court also was slightly more frank than I would have assumed. Many times I found myself thinking “I’ve been saying that for years, but I never thought it would actually end up in an opinion!” As a result, I think I would like to just put some quotes up. This might be helpful for those who do not feel particularly compelled to do a careful reading or find the task of even a cursory reading a bit too intimidating.

The first bits of wisdom addresses the fact that it is important to understand the interpreting the constitution is different that interpreting a statute. A constitution is a living, breathing document which “speaks with principle.” (Page 15 of the opinion) The court stated:

“The framers of the Iowa Constitution knew, as did the drafters of the United States Constitution, that ‘times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.’ And as our constitution ‘endures, persons in every generation can invoke its principles in their own search for greater freedom’ and equality” [the internal quotes come from Lawrence v. Texas]

When the court decided to talk about the underlying principle of “Equal Protection” it was apt to point out:

“The concept of equal protection is deeply rooted in our national and state history, but that history reveals this concept is often expressed far more easily than it is practiced.”

This is something I have always found to be true. It is easier to speak of tolerance than to practice it. As an entertaining side note, as I read this opinion I was annoyed to death by 3 individuals who sat near me. They were loud, brought McDonald’s food (which I agree with JPOD as having earned the nickname of ‘the taint.’) I wanted to say to them: “This was a nice relaxing environment till you got here!” I didn’t, and laughed at myself for even thinking it.

Finally, I think the most shocking thing I saw in the entire opinion was on page 30-31 of the opinion:

It is true the marriage statute does not expressly prohibit gay and lesbian persons from marrying; it does, however, require that if they marry, it must be to someone of the opposite sex. Viewed in the complete context of marriage, including intimacy, civil marriage with a person of the opposite sex is as unappealing to a gay or lesbian person as civil marriage with a person of the same sex is to a heterosexual. Thus, the right of a gay or lesbian person under the marriage statute to enter into a civil marriage only with a person of the opposite sex is no right at all. Under such a law, gay or lesbian individuals cannot simultaneously fulfill their deeply felt need for a committed personal relationship, as influenced by their sexual orientation, and gain the civil status and attendant benefits granted by the statute. Instead, a gay or lesbian person can only gain the same rights under the statute as a heterosexual person by negating the very trait that defines gay and lesbian people as a class-their sexual orientation. In re Marriage Cases, 183 P.3d at 441. The benefit denied by the marriage statute-the status of civil marriage for same-sex couples-is so “closely correlated with being homosexual” as to make it apparent the law is targeted at gay and lesbian people as a class.

I have thought this for ages, but to see a judge specifically point this out was so refreshing.

As for criticisms? I thought it was slightly obnoxious that the court chose to avoid determining what level of scrutiny should be applied to ALL classifications based on sexual orientation.

“Because we conclude that Iowa’s same-sex marriage statute cannot withstand intermediate scrutiny, we need not decide whether classifications based on sexual orientation are subject to a higher level of scrutiny.”

This was also done in Lawrence v. Texas where they did not have to see if it passed Intermediate or Strict scrutiny since it would not pass Rational Basis.

I also thought it was kind of entertaining to see that said on Footnote 32 on page 67:

“Our decision that the statute violates the equal protection clause of the Iowa Constitution makes it unnecessary to address the other bases for plaintiffs’ challenge to Iowa’s Marriage statute”

I would have been interested in their evaluation of the other argument. However, I thought the word “necessary” was kind of funny, because the section that preceded it addressed “Religious Opposition to Same-Sex Marriage” which the court pointed out was a reason not put forth by the county:

“Now that we have addressed and rejected each specific interest advanced by the County to justify the classification drawn under the statute, we consider the reason for the exclusion of gay and lesbian couples from civil marriage left unspoken by the county: religious opposition to same-sex marriage. The County’s silence reflects, we believe, its understanding this reason cannot, under our Iowa constitution, be used to justify a ban on same-sex marriage.”

If the county did not put forth the argument, it seems equally unnecessary to address it. However, I think by doing so, any individual who is annoyed at this decision for religious reasons has somewhere to turn for answers. Of course, it is a large “leap of faith” that said person would bother to read the opinion to page 63.

Aside from those criticisms I would encourage anyone to read this opinion. Considering the subject matter and importance of the topic, the opinion is rather short. It is written in a manner which is easy to understand, and although it is a state constitution issue, the court explains at length how the way the U.S. Supreme Court’s methodology for interpreting the U.S. Constitution influenced the court. So what someone can learn from this opinion is not solely tied to how things are conducted in the State of Iowa.

The only thing I don’t think I had ever seen before was in regard to evaluating one of the factors which influence which level of scrutiny to apply. The 4th factor of “political power of the subject class” was evaluated in a way I think is totally unique. The court pointed out that:

“[A]lthough equal rights for gays and lesbians have been increasingly recognized in the political arena, the right to a civil marriage is a notable exception to this trend.”

Therefore, they thought it was appropriate to consider:

“Consequently, the specific right sought in this case has largely lacked any extensive political support and has actually experienced an affirmative backlash.”

When determining whether the LGBT community is politically powerless. This section also had a great footnote about Obama!

On a final note. My absolute FAVORITE thing about this opinion appears as the last 3 words of the opinion. “All justices concur.” The fact that every single justice concurred in this opinion, and that there was no horrifying dissent which implied that Iowa was on a one way ticket to bestiality, incest, and statutory rape, was perhaps this most wonderful and amazing thing about the entire opinion.


1 Comment

  1. v.suresh said,

    April 4, 2009 at 2:25 pm

    “your website is nicely designed with usefull information “

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