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Tags court decisions , gay marriage , Iowa politics , judicial activism charges

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Old 3rd April 2009, 01:05 PM   #81
WildCat
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Originally Posted by Brown View Post
One of my dictums is: "Reaction to news is not news."

This dictum is a criticism of local news organizations, particular local television news organizations, that need video to make up their daily programs. Whenever there is a momentous event of any kind, some schmuck reporter selects people off the street and asks for their reaction to the event. During the news organization's broadcast, there is a story about the event itself (which IS news), followed by "public reaction" (which is NOT news).

Today, however, reaction to the news of the Iowa Supreme Court's decision does appear to be news.

There seems to be a pervasive theme in the reactions of those who disagree with the decision: the disagreement is based heavily, if not exclusively, upon religious grounds.

To paraphrase Justice Cady, the argument that "God says so" carries no weight in a court of law.

The reaction to news is news here, because true colors are being shown. All this talk about secular justification for the Iowa statute is largely, if not exclusively, pretense. The basic objections to equal treatment of gays are religious. In the minds of many, it is the State's job to enforce the will of the Almighty--as they see it.
Great job Brownie!

And way to go Iowa SC!
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Old 3rd April 2009, 04:54 PM   #82
Holler Hoojer
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Originally Posted by Alt+F4 View Post
Makes me wonder what the Mormons are planning now.
Uh...gay polygamy? The way to get the Mormons outta this is to have the NCAA threaten to bar BYU from post-season play until they find another golden plate saying "Queer is good".
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Old 3rd April 2009, 06:01 PM   #83
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Justice Mark Cady authored the opinion. He may take fire for being the author, but as the opinion is unanimous (and since Justice Cady's term runs through 2016), other members of the Court are likely to feel some displeasure as well.

It is noteworthy that the opinion is in the name of Justice Cady and not an anonymous "per curium" (by the Court) opinion. It shows a certain degree of integrity to put one's name on a document that will raise the ire of thousands of people.

The opinion begins, as do many judicial opinions, by reciting the facts of the case, how the case got to the district court, how it proceeded through the district court, and how it got to the Supreme Court.

The opinion then discusses, as do many judicial opinions, the legal standard of review. In this case, the ruling can be upheld only if the plaintiffs were entitled to prevail as a matter of law. If there was an issue of material fact, then the matter would have to be sent back to the district court for additional factfinding.

Part III of the opinion is where things start to get interesting. Fully aware that various citizens and commentators will brand the opinion as "activist" merely because they disagree with the result, Justice Cady offers a brief yet polite lecture about the Supreme Court's role. At times, the Iowa Supreme Court's opinion reads less like a legal opinion and more like a Civics textbook:
Quote:
The Iowa Constitution is the cornerstone of governing in Iowa. Like the United States Constitution, the Iowa Constitution creates a remarkable blueprint for government. It establishes three separate, but equal, branches of government and delineates the limited roles and powers of each branch. … Among other basic principles essential to our form of government, the constitution defines certain individual rights upon which the government may not infringe. See Iowa Const. art. I (“Bill of Rights”). Equal protection of the law is one of the guaranteed rights. See Iowa Const. art. I, § 6. All these rights and principles are declared and undeniably accepted as the supreme law of this state, against which no contrary law can stand. See Iowa Const. art. XII, § 1 (“This constitution shall be the supreme law of the state, and any law inconsistent therewith, shall be void.”).
Recalling the US Supreme Court decision of Marbury v. Madison, in which Chief Justice John Marshall articulated the power of the judicial branch to declare a statute unconstitutional, Justice Cady pointed out that the principle of judicial review exists in the State of Iowa as well: "A statute 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."

The notion of tradition appears many places in the opinion. Justice Cady invests considerable effort in describing that an idea may be held for a very long time, but that does not necessarily mean it is constitutional:
Quote:
In fulfilling this mandate under the Iowa Constitution, we look to the past and to precedent. We look backwards, not because citizens' rights are constrained to those previously recognized, but because historical constitutional principles provide the framework to define our future as we confront the challenges of today.

Our responsibility, however, is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time. 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.
Turning to the issue of Equal Protection, Justice Cady reiterated that the past does not control the future, this time quoting Justice Oliver Wendell Holmes:
Quote:
As Justice Oliver Wendell Holmes poignantly said, "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past."
As did Judge Hanson, Justice Cady points out that Iowa has a history of being progressive, often deciding questions ahead of (and more forward-looking than) the US Supreme Court:
Quote:
In the first reported case of the Supreme Court of the Territory of Iowa, In re Ralph, 1 Morris 1 (Iowa 1839), we refused to treat a human being as property to enforce a contract for slavery and held our laws must extend equal protection to persons of all races and conditions. 1 Morris at 9. This decision was seventeen years before the United States Supreme Court infamously decided Dred Scott v. Sandford, [citation omitted], which upheld the rights of a slave owner to treat a person as property. Similarly, in Clark v. Board of Directors, 24 Iowa 266 (1868), and Coger v. North West. Union Packet Co., 37 Iowa 145 (1873), we struck blows to the concept of segregation long before the United States Supreme Court’s decision in Brown v. Board of Education [citation omitted]. Iowa was also the first state in the nation to admit a woman to the practice of law, doing so in 1869. Admission of Women to the Bar, 1 Chicago Law Times 76, 76 (1887). Her admission occurred three years before the United States Supreme Court affirmed the State of Illinois' decision to deny women admission to the practice of law, see Bradwell v. Illinois [citation omitted], , and twenty-five years before the United States Supreme Court affirmed the refusal of the Commonwealth of Virginia to admit women into the practice of law, see Ex parte Lockwood [citation omitted]. In each of those instances, our state approached a fork in the road toward fulfillment of our constitution's ideals and reaffirmed the "absolute equality of all" persons before the law as "the very foundation principle of our government." See Coger, 37 Iowa at 153.
Words like this ought to make every Iowan's chest puff up. Those who would seek to amend the Constitution to deny gay couples rights that are afforded to straight couples will have to admit that such an amendment would be a giant step backward for the State.

In a footnote, however, Justice Cady remembers that not all of the Iowa Supreme Court's decisions have been so supportive of civil rights. He cites a case from 1910 that authorized discrimination against women in the conduct of business. But he added poetically that the Iowa cases on slavery, segregation and women's rights …
Quote:
…do, however, reflect this court has, for the most part, been at the forefront in recognizing individuals' civil rights. The path we have taken as a state has not been by accident, but has been navigated with the compass of equality firmly in hand, constructed with a pointer balanced carefully on the pivot of equal protection.
Justice Cady then discusses degrees of scrutiny that are applicable in equal protection cases. Laws, by their nature, treat people differently. In most cases, an equal protection analysis requires that there be a good reason, or "rational basis," for such disparate treatment. When a fundamental right is involved, however, "strict scrutiny" applies, and the different treatment is allowable under the equal protection clause if there is a DAMN good reason.

But there is also a level of "intermediate scrutiny" between the two. When applying intermediate scrutiny to a statute, the Court looks at whether there is a very good reason for the disparate treatment. There must be an important governmental interest at stake, and the difference in treatment "must be genuine and must not depend on broad Generalizations."

In Iowa, equal protection cases based upon gender or illegitimacy have usually involved intermediate scrutiny.

Before getting to what level of scrutiny will be applied, the Court discussed the facts in more detail. At this point, Justice Cady provided some commentary that may be ammunition for those who see the decision as "activist":
Quote:
Our law recognizes a distinction between "adjudicative" and "legislative" facts…. Most often, judicial decision-making is predicated solely on a finding of facts relating to the parties and their particular circumstances…. These facts are referred to as "adjudicative" facts [and] the resolution of a dispute over these facts is done within the framework of a set of rules to determine the admissibility of evidence tending to prove such facts.... At times, however, judicial decision-making involves crafting rules of law based on social, economic, political, or scientific facts…. These facts have been denominated as "legislative" facts and become relevant to judicial decision-making when courts are required to decide the constitutionality of a statute, among other occasions. [As] a result, judicial decision-making in the context of constitutional issues can involve the "process of adapting law to a volatile social-political environment."
Some may seize upon this passage as showing that the Court is setting itself up as a legislature, by considering "legislative facts." Just Justice Cady goes on to point out that "legislative facts" is just a name, and the same concept is also called "constitutional facts." But to some, this may still sound like a power grab by the Court:
Quote:
Importantly, constitutional facts are not subject to the rules of evidence when presented by a party in the form of witness testimony. Conceptually, testimony relating to constitutional facts is only presented as authority for the legal decision the court is required to make, and it would be inconsistent to apply formal rules of evidence to facts in the form of testimony that a court can independently obtain and consider in deciding the case.
As I mentioned in a previous post in this thread, "legislative factfinding" raises some concerns because it is not subject to the rules of evidence and because such factfinding has been used to find "facts" that are at odds with reality. Judge Cady recognizes this criticism, however, effectively saying that a court may not pull constitutional facts from thin air:
Quote:
Such facts are generally disputable, and courts must rely on the most compelling data in order to give needed intellectual legitimacy to the law or rule crafted by the court.
Principles of equal protection generally require treating similarly situated people the same way. Addressing the question of what "similarly situated" means, Justice Cady dismisses a circular argument that occasionally rears its head:
Quote:
In considering whether two classes are similarly situated, a court cannot simply look at the trait used by the legislature to define a classification under a statute and conclude a person without that trait is not similarly situated to persons with the trait.
Polk County, charged with the duty of defending the statute, argued that same-sex couples and opposite-sex couples are not "similarly situated." But the Court disagreed.
Quote:
Therefore, with respect to the subject and purposes of Iowa's marriage laws, we find that the plaintiffs are similarly situated compared to heterosexual persons. Plaintiffs are in committed and loving relationships, many raising families, just like heterosexual couples. Moreover, official recognition of their status provides an institutional basis for defining their fundamental relational rights and responsibilities, just as it does for heterosexual couples. Society benefits, for example, from providing same-sex couples a stable framework within which to raise their children and the power to make health care and end-of-life decisions for loved ones, just as it does when that framework is provided for opposite-sex couples.

In short, for purposes of Iowa’s marriage laws, which are designed to bring a sense of order to the legal relationships of committed couples and their families in myriad ways, plaintiffs are similarly situated in every important respect, but for their sexual orientation.
One of the arguments presented to the Court was that there is no prohibition against homosexuals marrying. They just cannot marry each other. Justice Cady responded:
Quote:
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.

By purposefully placing civil marriage outside the realistic reach of gay and lesbian individuals, the ban on same-sex civil marriages differentiates implicitly on the basis of sexual orientation.
Returning to the question of what degree of scrutiny is required, Justice Cady's opinion wavers. This may suggest that the question of degree of scrutiny may have been a divisive point among the members of the Court, and Justice Cady had to provide a degree of waver so that the opinion would remain unanimous.

Although Justice Cady discusses at length how the appropriate level is to be determined, in the end, he leaves the issue open:
Quote:
Because we conclude 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 is somewhat similar to what the US Supreme Court did in the recent Second Amendment case, District of Columbia v. Heller, in which Justice Scalia punted on the question of what level of scrutiny applies to US Constitutional rights under the Second Amendment:
Quote:
Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home "the most preferred firearm in the nation to 'keep' and use for protection of one's home and family," … would fail constitutional muster.
The standard of scrutiny matters. As a general matter, when a law is subject to a "rational basis" (good reason) level of scrutiny, it is very likely to be constitutionally permitted. When a law is subject to a "strict scrutiny" analysis (DAMN good reason), the law is far more likely to be found unconstitutional. Since discrimination against gays is almost certainly going to find its way into the court system again, the district court judges are going to be a tad hampered by not knowing what standard of scrutiny ought to be applied.

Applying intermediate scrutiny, Justice Cady addressed the rationales put forward to support the same-sex marriage ban. Justice Cady called the argument that government should maintain "traditional" marriage for its own sake an "empty analysis." In regard to whether the ban promotes an optimal environment to raise children, Justice Cady acknowledged that this is an "important governmental objective." Expert opinions that held that different-sex marriages are better than same-sex marriages were "thoughtful and sincere," [but] were largely unsupported by reliable scientific studies."

"If the marriage statute was truly focused on optimal parenting," Justice Cady observed, "many classifications of people would be excluded, not merely gay and lesbian people." Like who? Child abusers, sexual predators, parents neglecting to provide child support, and violent felons can all be straight, can all get married and can all be really horrible parents. Besides being unable to keep unfit people for being parents, the statute also is flawed because it protects the rights of couples who have no intention or ability to have children… as long as they're opposite-sex couples.

Another justification offered in support of the statute was that it promotes procreation. Assuming for the moment that the State of Iowa has such an interest, is it a good reason for the statute? Justice Cady felt the link between the statute and procreation was tenuous:
Quote:
Conceptually, the promotion of procreation as an objective of marriage is compatible with the inclusion of gays and lesbians within the definition of marriage. Gay and lesbian persons are capable of procreation. Thus, the sole conceivable avenue by which exclusion of gay and lesbian people from civil marriage could promote more procreation is if the unavailability of civil marriage for same-sex partners caused homosexual individuals to "become" heterosexual in order to procreate within the present traditional institution of civil marriage. The briefs, the record, our research, and common sense do not suggest such an outcome.
Someone—it's not clear whether it was Polk County or an "amicus" (a "friend of the Court" that offers written arguments to help the Justices)—argued that recognizing same-sex marriage will in some way destabilize opposite-sex marriages. Justice Cady gave the argument really short shrift:
Quote:
While the institution of civil marriage likely encourages stability in opposite-sex relationships, we must evaluate whether excluding gay and lesbian people from civil marriage encourages stability in opposite-sex relationships. The County offers no reasons that it does, and we can find none. The stability of opposite-sex relationships is an important governmental interest, but the exclusion of same-sex couples from marriage is not substantially related to that objective. (emphasis by the Court)
Another justification for the statute was conserving resources. Basically, the argument was that the State currently gives a tax benefit to the way heterosexual husbands and wives, and the State cannot afford to give tax benefits to everyone. Justice Cady makes short work of this argument:
Quote:
Excluding any group from civil marriage—African-Americans, illegitimates, aliens, even red-haired individuals—would conserve state resources in an equally "rational" way. Yet, such classifications so obviously offend our society's collective sense of equality that courts have not hesitated to provide added protections against such inequalities.
Justice Cady wound up the analysis as follows:
Quote:
Having examined each proffered governmental objective through the appropriate lens of intermediate scrutiny, we conclude the sexual-orientation-based classification under the marriage statute does not substantially further any of the objectives. While the objectives asserted may be important (and many undoubtedly are important), none are furthered in a substantial way by the exclusion of same-sex couples from civil marriage. Our equal protection clause requires more than has been offered to justify the continued existence of the same-sex marriage ban under the statute.
What follows then is something extraordinary.

It is unusual for a Supreme Court opinion to go out of its way to address arguments that are not properly before it. I can think of no previous Iowa Supreme Court opinion in which the Court has ever done anything like this.

Basically, Justice Cady addresses what appears to be the REAL reason underlying the same-sex marriage ban: religion.
Quote:
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.
Unsaid, but implied, is that the Court agrees that the County was right not to even urge it as a justification.

Justice Cady continues:
Quote:
While unexpressed, religious sentiment most likely motivates many, if not most, opponents of same-sex civil marriage and perhaps even shapes the views of those people who may accept gay and lesbian unions but find the notion of same-sex marriage unsettling.

It is quite understandable that religiously motivated opposition to same-sex civil marriage shapes the basis for legal opposition to same-sex marriage, even if only indirectly. Religious objections to same-sex marriage are supported by thousands of years of tradition and biblical interpretation. The belief that the "sanctity of marriage" would be undermined by the inclusion of gay and lesbian couples bears a striking conceptual resemblance to the expressed secular rationale for maintaining the tradition of marriage as a union between dual-gender couples, but better identifies the source of the opposition. Whether expressly or impliedly, much of society rejects same-sex marriage due to sincere, deeply ingrained—even fundamental—religious belief.

Yet, such views are not the only religious views of marriage. As demonstrated by amicus groups, other equally sincere groups and people in Iowa and around the nation have strong religious views that yield the opposite conclusion.
In the case of a religious dispute, is it government's job to step in to resolve the religious dispute? Justice Cady answers:
Quote:
This contrast of opinions in our society largely explains the absence of any religion-based rationale to test the constitutionality of Iowa's same-sex marriage ban. Our constitution does not permit any branch of government to resolve these types of religious debates and entrusts to courts the task of ensuring government avoids them. See Iowa Const. art. I, § 3 ("The general assembly shall make no law respecting an establishment of religion …."). The statute at issue in this case does not prescribe a definition of marriage for religious institutions. Instead, the statute declares, "Marriage is a civil contract" and then regulates that civil contract. Iowa Code § 595A.1. Thus, in pursuing our task in this case, we proceed as civil judges, far removed from the theological debate of religious clerics, and focus only on the concept of civil marriage and the state licensing system that identifies a limited class of persons entitled to secular rights and benefits associated with civil marriage. (emphasis by the Court)
Some have said that "separation of church and state" is a myth of US Constitutional law. In Iowa, it is no myth:
Quote:
State government can have no religious views, either directly or indirectly, expressed through its legislation. [Authority.] This proposition is the essence of the separation of church and state.

As a result, civil marriage must be judged under our constitutional standards of equal protection and not under religious doctrines or the religious views of individuals. This approach does not disrespect or denigrate the religious views of many Iowans who may strongly believe in marriage as a dual-gender union, but considers, as we must, only the constitutional rights of all people, as expressed by the promise of equal protection for all.
This is a most striking passage, and perhaps most injudicious. Instead of dealing with legal issues, Justice Cady offers a gentle lecture that Iowa is not governed by laws that implement religious beliefs, no matter how many people hold those beliefs or how deeply they are held. Iowa laws are governed by reason.

The concluding words of the opinion are:
Quote:
Iowa Code section 595.2 is unconstitutional because the County has been unable to identify a constitutionally adequate justification for excluding plaintiffs from the institution of civil marriage. … Consequently, the language in Iowa Code section 595.2 limiting civil marriage to a man and a woman must be stricken from the statute, and the remaining statutory language must be interpreted and applied in a manner allowing gay and lesbian people full access to the institution of civil marriage.
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Old 3rd April 2009, 06:34 PM   #84
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Originally Posted by DoubtingStephen View Post
An "activist judge" has ruled that the Iowa gay panic sanctity of marriage law is unconstitutional.
Link
I am not a fan of same-sex marriage. I think marriage should between a man and a woman and same-sex couples should get EVERYTHING but the title of married.

That said, if the judges in Iowa feel that a ban on gay marriage violates the Iowa state constitution, then that is their job and I respect that.

I suggest the people of Iowa, if they do not like this ruling, change their constitution.
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Old 3rd April 2009, 07:18 PM   #85
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Originally Posted by parky76 View Post
I am not a fan of same-sex marriage. I think marriage should between a man and a woman and same-sex couples should get EVERYTHING but the title of married.
Reason being? And such a scenario is untenable in practice. For example, a case in New Jersey showed this when a company denied health care coverage to "civil unioned" people that it would give to "married" people.
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Old 4th April 2009, 12:25 AM   #86
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seperate but equal is considered unequal, Parky, for .. well, historical reasons.

That said...
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Old 4th April 2009, 09:15 AM   #87
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The Almighty is already expressing disapproval with the ruling. In Iowa today, it is ... raining.

In April.

There might even be flooding. Flooding hasn't occurred in Iowa for ages and ages, well, almost a year now.

When the weather warms up, there might even be tornadoes.
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Old 4th April 2009, 09:28 AM   #88
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Damn! I should've applied for the million dollars, because I could have predicted with 100 percent accuracy the following (from various news services):
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Republican National Committee Chairman Michael Steele released a statement from Washington, D.C., calling the court's decision "another example of judicial activism currently threatening family values in America."
This shows that Steele (1) has not read the decision or (2) does not understand the decision, or most likely (3) both.
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Old 4th April 2009, 09:46 AM   #89
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Originally Posted by Brown View Post
Damn! I should've applied for the million dollars, because I could have predicted with 100 percent accuracy the following (from various news services):This shows that Steele (1) has not read the decision or (2) does not understand the decision, or most likely (3) both.
Or (4) is pandering to religious right and thus taking the GOP further down the path to irrelevancy.
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Old 4th April 2009, 01:20 PM   #90
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I vote #4. Although to be fair to the Republicans, these social issues are the only area where they have gotten any traction with the voters. Which is why Democrats did what they could to keep gay marriage off the ballot in 2008.
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Old 4th April 2009, 04:56 PM   #91
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I just wanted to say thanks to Brown for all his excellent posts in this thread. I feel like I've had a (free!) legal education.
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Old 4th April 2009, 06:22 PM   #92
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Originally Posted by Matthew Best View Post
I just wanted to say thanks to Brown for all his excellent posts in this thread. I feel like I've had a (free!) legal education.
Seconded.

ETA: It is ironic that the posts by Brown are a superb addition to a sceptic's forum whereas the posts by Skeptic in the other thread are...well...the color is brown...

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Old 4th April 2009, 10:01 PM   #93
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Originally Posted by parky76 View Post
I am not a fan of same-sex marriage. I think marriage should between a man and a woman and same-sex couples should get EVERYTHING but the title of married.

That said, if the judges in Iowa feel that a ban on gay marriage violates the Iowa state constitution, then that is their job and I respect that.

I suggest the people of Iowa, if they do not like this ruling, change their constitution.
Not like you to be prejudiced sparky. I'm disappointed.
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Old 4th April 2009, 11:17 PM   #94
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So ... Article IV, section 1:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
Does that mean that if you get gay-married in Iowa, you remain gay-married in Utah? If not, why not?
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Old 4th April 2009, 11:20 PM   #95
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Originally Posted by Dr Adequate View Post
So ... Article IV, section 1:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
Does that mean that if you get gay-married in Iowa, you remain gay-married in Utah? If not, why not?
The Defence of Marriage Act rejected this... Not sure why it isn't unconstitutional, but there you have it.
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Old 4th April 2009, 11:24 PM   #96
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Originally Posted by Tsukasa Buddha View Post
The Defence of Marriage Act rejected this... Not sure why it isn't unconstitutional, but there you have it.
How do we know that it isn't unconstitutional? Has there been a case yet?
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Old 5th April 2009, 05:48 AM   #97
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Originally Posted by Dr Adequate View Post
How do we know that it isn't unconstitutional? Has there been a case yet?
Don't think there has been a case yet, but it is only a matter of time. Once it hits the courts, it will be very difficult to argue that a law that says states may ignore contracts from other states is constitutional. On the other hand, Bush vs Gore showed that the US Supreme Court is not immune to fitting legal arguments to a preferred outcome.
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Old 5th April 2009, 06:02 AM   #98
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Originally Posted by Tsukasa Buddha View Post
For example, a case in New Jersey showed this when a company denied health care coverage to "civil unioned" people that it would give to "married" people.
Yup, that was a big mess. The insurance company couldn't figure out how a civil union was different than a marriage in practice, but since the State of New Jersey had given them different nomenclatures the insurance company felt it had the legal right to deny the civil unioned couple heath insurance.

Similar situation if you work for the City of New York. If you're married the City will cover your spouse's health insurance. If you're in a domestic partnership (which is somehow different or the same as a civil union - I can't tell ) the employee has the partner's health insurance costs added to their income.

So much for separate but equal.
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Old 5th April 2009, 08:00 PM   #99
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Originally Posted by Random View Post
Don't think there has been a case yet, but it is only a matter of time. Once it hits the courts, it will be very difficult to argue that a law that says states may ignore contracts from other states is constitutional. On the other hand, Bush vs Gore showed that the US Supreme Court is not immune to fitting legal arguments to a preferred outcome.
There oughtta be a law that says that a law called the "Defense of Marriage Act" can't be used to invalidate a legal marriage. Oh well.

On a more serious note, this is one reason I hate referring to marriage as a contract. Yes, it's like a contract in some respects. Yes, it is sometimes treated like a contract. But there are several reasons why it doesn't make sense to call it a contract. And in this case, if you treat marriage as a contract, you eliminate any constitutional problem with giving full faith and credit to another state's marriage, since there is no constitutional problem in general with a state refusing to give effect to a contract or contract provision that would be valid in another state.
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Old 5th April 2009, 08:14 PM   #100
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Originally Posted by linusrichard View Post
There oughtta be a law that says that a law called the "Defense of Marriage Act" can't be used to invalidate a legal marriage. Oh well.

On a more serious note, this is one reason I hate referring to marriage as a contract. Yes, it's like a contract in some respects. Yes, it is sometimes treated like a contract. But there are several reasons why it doesn't make sense to call it a contract. And in this case, if you treat marriage as a contract, you eliminate any constitutional problem with giving full faith and credit to another state's marriage, since there is no constitutional problem in general with a state refusing to give effect to a contract or contract provision that would be valid in another state.
Congratulations on your 1000th post.

However, there is a problem with a state refusing to honor a contract of another state. As noted by Dr. A:

Quote:
Article IV, section 1:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.
If people could change the rules by crossing state lines there would be chaos.
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Old 6th April 2009, 07:31 AM   #101
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Originally Posted by gdnp View Post
Congratulations on your 1000th post.
Thanks! I didn't even notice.

Quote:
However, there is a problem with a state refusing to honor a contract of another state. As noted by Dr. A:
A contract is neither a public Act, record, or judicial proceeding.

Quote:
If people could change the rules by crossing state lines there would be chaos.
Arguably, there is chaos.

I'm actually taking a class right now on this very subject. A typical case involves A and B who make a contract in state X, and then there's a suit in state Y, and the contract, or a provision thereof, is illegal in state Y. So the Y court has to decide whether to apply X's law or Y's law, and thus whether to validate or invalidate the contract or provision. If the Constitution required Full Faith & Credit to contracts, this would be a much shorter and easier class.
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Old 6th April 2009, 10:05 AM   #102
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Originally Posted by Brown View Post
Damn! I should've applied for the million dollars, because I could have predicted with 100 percent accuracy the following (from various news services):This shows that Steele (1) has not read the decision or (2) does not understand the decision, or most likely (3) both.
You forgot the other option: doesn't care what the decision says.
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Old 6th April 2009, 10:08 AM   #103
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My favorite part of the decision

Quote:
"If the marriage statute was truly focused on optimal parenting," Justice Cady observed, "many classifications of people would be excluded, not merely gay and lesbian people." Like who? Child abusers, sexual predators, parents neglecting to provide child support, and violent felons can all be straight, can all get married and can all be really horrible parents. Besides being unable to keep unfit people for being parents, the statute also is flawed because it protects the rights of couples who have no intention or ability to have children… as long as they're opposite-sex couples.
I love this. It really hammers on the "Think of the children!!!!!" nonsense. Basically the court is saying, "You don't worry about the children when it comes to other marriages, why are you singling out gay people?" It clearly indicates the homosexual discrimination.
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Old 6th April 2009, 10:26 AM   #104
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Originally Posted by pgwenthold View Post
My favorite part of the decision



I love this. It really hammers on the "Think of the children!!!!!" nonsense. Basically the court is saying, "You don't worry about the children when it comes to other marriages, why are you singling out gay people?" It clearly indicates the homosexual discrimination.
One I like is "They can't have childern", yet infertile women (and men) are allowed to marry--as are people who declare an intent NOT to have childern.
Shall we dissolve THEIR marriages?
Where's the popcorn?
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Old 6th April 2009, 10:31 AM   #105
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The argument against gay marriage basically boils down to, "I don't want gays to get married because I think it's icky." Logically, they have nothing.
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Old 6th April 2009, 12:19 PM   #106
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Originally Posted by Dr Adequate View Post
How do we know that it isn't unconstitutional? Has there been a case yet?
And yet, you cited the reason, Dr A.

Originally Posted by Dr Adequate View Post
So ... Article IV, section 1:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
Does that mean that if you get gay-married in Iowa, you remain gay-married in Utah? If not, why not?
Lets review that again:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
It's not going to be a pretty case, shall we say. Congress has proscribed a manner (not at all) and an effect (absolutely none). This may not seem fully within the spirit of the law, and it's really just not, but it's hardly cut and dried.

Believe me, there are, at this very moment, people who in their spare time are researching the intent of every Founding father, as expressed in all letters, official communication, unofficial communication, and private writings, as to the point of that particular clause, and whether this would fall under 'their intent' or not.

Last edited by GreyICE; 6th April 2009 at 12:23 PM.
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Old 6th April 2009, 04:15 PM   #107
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As I have mentioned previously, Iowans in modern times resisted efforts to amend the Iowa Constitution to provide equal rights for women. In part, this resistance was grounded in mistrust of trial lawyers who would use such a constitutional amendment to upset the apple cart of Iowa's jurisprudence.

In part, the concern was that women ought to be kept in their place. No kidding. Some of the propaganda used to defeat the State ERA was premised upon maintaining "traditional" and perceived Biblical sexual roles. In other words, some people in the second half of the Twentieth Century actually argued that women should not be awarded equal rights because women were not really equal to men as human beings. God said so, they said.

There were also a few bat-spit crazy folks who said (yelled, would be more like it) that an ERA would give legal rights (gasp!) to those God-cursed sodomites. After all, the amendments said, in effect, that there should be no discrimination on account of "sex" (in one version) or "gender" (in another version). The fear was that such language in the Constitution could encompass sexual orientation.

What a conventional ERA would PROBABLY have done is to convert the Court's standard of scrutiny in gender-based discrimination cases from "intermediate" to "strict."

A few years back, Iowans adopted a more laid-back ERA, recognizing that "All men and women are, by nature, free and equal...." The words "and women" were added. That was the extent of the amendment.

Now Justice Cady quotes that very language as part of the opinion (page 19). He does not rub anyone's face in it, of course, nor does he mention any constitutional amendment to add "and women."

But oh, how the bat-spit crazies are wailing and gnashing their teeth.

Even many in the so-called "mainstream" religions are showing a stunning ignorance about the law of the State and what the opinion actually said.

According to the Des Moines Register (and other sources), Catholic leaders are upset and say that the decision will grievously harm children. From my standpoint, I don't think the Catholic Church has any moral authority to lecture anyone about hurting children.
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Old 7th April 2009, 03:21 AM   #108
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Originally Posted by Brown View Post
A few years back, Iowans adopted a more laid-back ERA, recognizing that "All men and women are, by nature, free and equal...." The words "and women" were added. That was the extent of the amendment.
Interesting that intersexed individuals do not have equal rights in Iowa.
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Old 7th April 2009, 12:32 PM   #109
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Originally Posted by GreyICE View Post
Lets review that again:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
Yes. Now the question is can Congress "by general Laws prescribe" that no "Faith and Credit" shall be given whatsoever, and that "the Effect thereof" should be zip?

---

Oh, and here's a puzzle. If "Full Faith and Credit" doesn't apply to gay marriage, is there anything to stop someone from marrying one man in Iowa and another man in Vermont?

It would be amusing if DOMA made gay bigamy legal ...
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Old 7th April 2009, 12:44 PM   #110
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Originally Posted by Dr Adequate View Post
Yes. Now the question is can Congress "by general Laws prescribe" that no "Faith and Credit" shall be given whatsoever, and that "the Effect thereof" should be zip?
As I already laid out, that's exactly the dilemma. It does not appear to be fitting exactly within the spirit of the wording, but it does appear to be fitting exactly within the most ambiguous interpretations of the wording.


Quote:
Oh, and here's a puzzle. If "Full Faith and Credit" doesn't apply to gay marriage, is there anything to stop someone from marrying one man in Iowa and another man in Vermont?

It would be amusing if DOMA made gay bigamy legal ...
Yes, local state laws. I'd assume that states already have statutes about recognizing marriages made in other states, and if both allow gay marriages, then both are going to recognize the potential bigamist as married.

The DOMA only said that states do not have to recognize gay marriage, not that they MUST NOT.
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Old 7th April 2009, 02:56 PM   #111
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-never mind, figured it out myself-
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Old 7th April 2009, 04:07 PM   #112
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Originally Posted by parky76 View Post
I am not a fan of same-sex marriage. I think marriage should between a man and a woman and same-sex couples should get EVERYTHING but the title of married.
Sooo...

If it walks, quacks, and swims like a duck, please call it a "duck facsimile"?

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Old 7th April 2009, 04:26 PM   #113
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Originally Posted by KingMerv00 View Post
Sooo...

If it walks, quacks, and swims like a duck, please call it a "duck facsimile"?
Remember: Separate, but equal! Separate, but equal!

I've really never understood that position on the issue, since I'm really having a hard time coming up with an example from history where parallel programs instituted to deal with the thing for two different groups ended up NOT diverging significantly. Hell even male/female sports programs have issues, and there's really really good reasons to keep them separate (as opposed to really non-existent reasons to keep a gay 'not-marriage marriage' and a 'real marriage' separate (and in the language I used, I think we can see where I see THAT going).

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Old 7th April 2009, 04:29 PM   #114
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Originally Posted by parky76 View Post
I am not a fan of same-sex marriage. I think marriage should between a man and a woman and same-sex couples should get EVERYTHING but the title of married.
What difference does the title make if you're giving them the exact same rights anyway?

It seems like you're saying, "You can be married, just not married."
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Old 7th April 2009, 08:17 PM   #115
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Originally Posted by ponderingturtle View Post
Interesting that intersexed individuals do not have equal rights in Iowa.
HA! Well this should amuse you...maybe...

Where I work(in Iowa) we had a M to F transexual patient. He was married to a woman when he was a man, and then became a woman and is now married to a man. The thing is he is still pre-op when he got married and was still technically a man. The state however recognized him as a woman because he was in the preparation to become a fully converted male to female.

What I wonder is why the anti-gay lobby doesn't attack situations like that? Why is just the straight up homosexuals?
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Old 8th April 2009, 03:13 AM   #116
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Originally Posted by thesyntaxera View Post
HA! Well this should amuse you...maybe...

Where I work(in Iowa) we had a M to F transexual patient. He was married to a woman when he was a man, and then became a woman and is now married to a man. The thing is he is still pre-op when he got married and was still technically a man. The state however recognized him as a woman because he was in the preparation to become a fully converted male to female.

What I wonder is why the anti-gay lobby doesn't attack situations like that? Why is just the straight up homosexuals?
I was talking about intersexed though, not transexuals. That individual always identified as only one sex though.
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Old 8th April 2009, 05:27 AM   #117
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Originally Posted by ponderingturtle View Post
Interesting that intersexed individuals do not have equal rights in Iowa.
Doesn't say "only men and women," just "all men and women." Don't deny the antecedent.
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Old 8th April 2009, 05:48 AM   #118
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My dad voted to ban gay marriage in Georgia while I voted against banning it, but his reasoning was allowing gays to marry would hurt the social security system.

Just to point out someone that doesn't seem to fit into any of the categories all ready listed.
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Old 8th April 2009, 06:16 AM   #119
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Originally Posted by Sefarst View Post
My dad voted to ban gay marriage in Georgia while I voted against banning it, but his reasoning was allowing gays to marry would hurt the social security system.
A pretty poor arguement though. It is such a small percentage of the population that it will have little effect.
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Old 10th April 2009, 04:18 PM   #120
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Well, the wagons are circling.

Iowa Family Policy center(send hate/love mail here)
http://www.ifpc.org/

and it's off shoot-
http://www.letusvoteiowa.com/

Gay right opponents issue warning
http://content.usatoday.net/dist/cus...30519257.story
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