Activist Judge Overturns Iowa AntiGay Marriage Law

[Upchurch]

Originally Posted by Terry

Quote:

Well, any time their anti-gay God wants to duke it out, man fairy against fairy tale tail, I'm ready!

Fixed it for you, dear

Just remember: you started it.

[Tsukasa Buddha]

Cool info Mr. Brown!

Thanks !

[ponderingturtle]

Originally Posted by TragicMonkey

The sad thing is that opponents of gay marriage are picturing scary, sexy gays getting married. Leathermen and porn stars and drag queens. And then them doing threatening, erotic things at the wedding reception, thus throwing terror into the straight population with their sexy, sinful antics.

When it actually looks like the gays who get married or want to are the boring, ordinary-looking couples who go to the hardware store on Saturdays to pick up tile to fix up their bathroom, not to find reinforced ceiling hooks for their sex dungeon. It's hard to think of anything less threatening than people settling down. Thats when they stop going out and picking up strangers and dancing on tables and doing all the things that scare the straights if they're flipping through the channels and come across a pride parade on the news.

I am sure there are plenty of heterosexual couples who go out to get ceiling hooks for their sex dungeon.

Well probably not every weekend.

[Brown]

News flash, from the Des Moines Register:

Quote:

A conservative political activist is demanding that the Iowa Legislature impeach Polk County District Judge Robert Hanson, who ruled in August that the state's gay-marriage ban is unconstitutional.

Bill Salier, a Nora Springs farmer and former Republican candidate for U.S. Senate, said Wednesday that he is passing around a petition seeking the judge's impeachment. Salier said Hanson's ruling is the latest example of judges abusing their power in order to impose their personal beliefs on Americans.

"He's advancing what he wants to be the law, but he cannot pass law because he is not a representative or a senator or a governor," Salier said. "It's a malfeasance of his office, and he needs to be removed for it."

Well, hello, Salier!

All right, that was a cheap shot, but this isn't: Chances are excellent that, based upon this "activist's" remarks, he either has not read the ruling that he is so steamed about, or he has not made the first effort to try to understand it.

So not only is he a loudmouth, he's an ignorant loudmouth as well. And the punch line is... (wait for it) ... he's quick to say that anybody who doesn't agree with him is stupid.

According to the Register, the response to his individual's activity has been laughter.

[patrick767]

I'm confused. How is this not the very thing the judicial branch should be deciding? It concerns individual rights as they relate to the constitution (state constitution in this case).

The courts have long existed as a check on the power of the majority to deny the rights of the minority. That is one of the most important purposes that they serve. Yet the Right would label any rulings they don't agree with as inappropriate "legislating from the bench" by "activist judges". Isn't this claim completely ridiculous? Without so-called activist judges, what would have become of America's civil rights era? Many of the most important breakthroughs in rights have been the result of judicial rulings. Judges help prevent the tyranny of the majority.

By design, the only way to overcome these rulings is to change the constitution. Unfortunately some states have done just that, but at least such a move makes sense from a governmental perspective.

[Cleon]

Originally Posted by patrick767

I'm confused. How is this not the very thing the judicial branch should be deciding?

It's really very simple.

When the judge rules in your favor, he is Upholding The Law.
When the judge rules against you, he is an Activist Judge who is Legislating From The Bench.

Any questions?

[Miss Anthrope]

Originally Posted by Cleon

It's really very simple.

When the judge rules in your favor, he is Upholding The Law.
When the judge rules against you, he is an Activist Judge who is Legislating From The Bench.

Any questions?

Still awesome, I see!

[Terry]

And if the legislature pass a gay rights bill, then obviously it needs to be vetoed by the governor, because "the people should decide".

[Random]

It’s bigotry, plain and simple. Sure they have a wide variety of arguments to back up their position, but the arguments are all either stupid or depend on untestable “Religious” beliefs. And the bible thumpers don’t impress me at all. While they are willing to criss-cross the country trying to ban gay marriage, I have yet to see them devote similar resources to banning shellfish, polyester, or credit cards. This is not obeying the word of God, this is hating gays and using the word of God as an excuse.

[DoubtingStephen]

Originally Posted by Random

This is not obeying the word of God, this is hating gays and using the word of God as an excuse.

At our house we call this Christianity, one of a wide range of One True Religions.

[Brown]

Further update:

According to the Des Moines Register, a group has decided to try to push the Iowa Legislature toward a constitutional amendment to keep those disgusting homos in their place ... I mean, to prevent same-sex unions.

To emphasize that their convictions are based upon something other than evidence of need for such an amendment, the protesters are including a "prayer walk."

Some have characterized the "prayer walk" as an inappropriate attempt to influence the Iowa Supreme Court. That's actually quite funny. Knowing the members of the Supreme Court, the effect that this event is likely to have on them is about as close to zero as can be. Not a one of them will let fear of impeachment, lack of retention or other political stress influence their analysis of the case. That's just not how this court does business.

A few years ago, the Iowa appellate courts made some high-profile decisions in a case that received nation-wide attention. There was considerable protesting at the time, with public demonstrations. There were letter-writing campaigns to influence the judges' decisions. And the Iowa judges did what they thought was right, even as unpopular as it was. Although lay commentators around the country lined up against them, the Iowa judges said they decided according to the law, and they ignored the demonstrators and letters. One judge was quoted in the local newspaper as saying that he would read enough of a letter to see what it was about, and if it pertained to a pending matter, he would unceremoniously throw it into the trash. The Iowa decision eventually held up, and the case was at an end, despite the outcome being highly unpopular. (Read a brief summary of this case at the Time Magazine web site.) In light of this history, it is unlikely that a well-mannered public demonstration will have any effect upon consideration of the legal issues that the Court must face.

[Brown]

Further Update:

The Iowa Supreme Court's decision is expected tomorrow, 3 April 2009.

[Kthulhut Fhtagn]

Originally Posted by Brown

Just a reminder: The decision can be found here.

"Page Not Found"

[GreyICE]

Originally Posted by Kthulhut Fhtagn

"Page Not Found"

Please note dates. September != April.

[Upchurch]

And 2009 > 2007

[Kthulhut Fhtagn]

Originally Posted by GreyICE

Please note dates. September != April.

I'm attempting to bring it to the attention of someone so that, just maybe, someone will actually have another link to the ruling so that I can read it. Next time I'll remember just to keep my mouth shut and not be able to learna damn thing.

[marksman]

Originally Posted by Brown

if you thinks this is confusing, as a New York lawyer why his Court of Appeals is higher than his Supreme Court.

Because, in NY, the "Supreme Court" only references it being "supreme" to other trial-level courts, like civil court, traffic court, housing court, village court, etc. See? That wasn't confusing at all.

New York simply set up its court systems in the 1600's, well before the US Constitution declared the Judiciary to be embodied in a "Supreme Court of the United States" with the trial courts below it.

In most States the trial court is the "Superior Court", which is inferior to the Appellate Courts (which are inferior to the Supreme Court). They are called that because they are "superior" to the other trial courts. New York just picked "supreme" instead of "superior".

The federal courts are the least confusing. They named their courts after jurisdictions. The lower courts accept all cases in a judicial district and this are called "District Courts". The appellate courts are divided into circuits and are thus called "Circuit Courts". And they are all inferior to the highest court in the land, the "Supreme Court". (Well, except there are separate Bankruptcy Courts in each district... okay. It's a little confusing.)

[Brown]

The link to where the opinion is expected to be is:

http://www.iowacourts.gov/Supreme_Court/Opinions/

Click "Most Recent Opinions."

As of this writing, the opinion is not there yet. There is a notice, however, that an opinion in the case of Varnum v. Brien is expected to be filed on April 3.

As indicated in a story in the Des Moines Register, the Court is gearing up for the inevitable protests, whatever the result may be.

Quote:

The judicial building and the surrounding grounds “are not public forums for private use,” court administrators said in a written statement. “The judicial branch reserves the right to restrict private activities in the building and on its adjoining grounds to ensure the administration of justice at all stages is free from disruption, interference, and undue influence.”

Activities such as press conferences, rallies and other public gatherings will be confined to the lower terrace on the building’s north end, and the public sidewalk adjacent to Court Avenue, court administrators said. Access to the building must remain “open and unobstructed at all times,” the statement said.

When a decision involving intense emotion and heightened public interest is decided, news organizations and political activists rush to report what the Court said. This often leads to misleading reporting, because it may take hours to give a court opinion due consideration and analysis.

Nevertheless, chances are that folks will look first at the cover page of the opinion. "AFFIRMED" means that the lower court's decision was upheld and prohibitions on gay marriage are unconstitutional under the Iowa constitution. But if the result is anything else ("REVERSED AND REMANDED," AFFIRMED IN PART, REVERSED IN PART AND REMANDED," etc.), then that means: You have to read the opinion to see what the Court did. It does NOT necessarily mean that the gay marriage ban is constitutional.

Those skimming the opinion are also usually interested in how many justices voted each way. In Iowa, there are split decisions, just as there are in the US Supreme Court. But Iowa has a history of trying to issue unanimous opinions in as many cases as possible. (A few years ago, Chief Justice Roberts announced that he would try to achieve more uniformity of assent to opinions from the US Supreme Court. So far, he has failed. But Iowa has a history of success.)

If the decision is "AFFIRMED," I think it is possible but tending toward unlikely that the decision will be unanimous. If the decision is anything else, I think it is possible but moderately likely that the decision will be unanimous.

[jj]

Originally Posted by DoubtingStephen

Of course the judge will be harshly villified.

A losing district attorney commented, after the judge ruled, that this matter should not be decided by a judge.

Yeah, so WHO is supposed to rule on matters of law? Pat Robertson?

[ponderingturtle]

Originally Posted by jj

Yeah, so WHO is supposed to rule on matters of law? Pat Robertson?

By who ever makes the right decision obviously.

[Upchurch]

Iowa court backs same-sex marriage

[Alt+F4]

Originally Posted by New York Times

The Iowa Supreme Court says the state's same-sex marriage ban violates the constitutional rights of gay and lesbian couples, making it the third state where gay marriage is legal.

In a unanimous ruling issued Friday, the court upheld a 2007 Polk County District Court judge's ruling that the law violated the state constitution.

Does this mean gay marriage is legal in Iowa immediately, as in today?

[Upchurch]

Originally Posted by Alt+F4

Does this mean gay marriage is legal in Iowa immediately, as in today?

Oh, no! All those poor heterosexual people whose marriages are suddenly meaningless! Won't somebody think of the straight people?

[Upchurch]

More

Quote:

Court rules dictate that the decision will take about 21 days to be considered final, and a request for a rehearing could be filed within that period. That means it will be at least several weeks before gay and lesbian couples can seek marriage licenses.

But Polk County Attorney John Sarcone said the county attorney's office will not ask for a rehearing, meaning the court's decision should take effect after that three-week period.

[Alt+F4]

Originally Posted by Upchurch

Oh, no! All those poor heterosexual people whose marriages are suddenly meaningless! Won't somebody think of the straight people?

Good day for the divorce lawyers though....

Bravo Hawkeyes!

[Brown]

As has been reported, the cover page says "AFFIRMED."

The decision was UNANIMOUS.

The number of pages of the opinion was 69. I'm sure that was a conicidence.

I have the decision in front of me. I have read it once, and will read it again before commenting in detail. I note, however, that the Court hits many of the questions discussed in this thread.

In a sense, the Court went further than Judge Hanson. In particular, the Court went out of its way to mention religious objections to same-sex marriage (see the discussion beginning on page 63). Further, the Court dropped a big fat hint to the legislature saying, don't try to legislate this decision out of the books; that won't work. The only body that can overturn this decision is the People, by amending the Constitution.

[Alt+F4]

Originally Posted by Brown

The only body that can overturn this decision is the People, by amending the Constitution.

Makes me wonder what the Mormons are planning now.

[The Central Scrutinizer]

Originally Posted by Upchurch

Iowa court backs same-sex marriage

Quote:

"It's, quite frankly, a disaster," said Brian English, a spokesman for the Iowa Family Policy Center, a nonprofit research and educational organization committed to strengthening the family.
"Obviously, we're extremely disappointed," he said. "We're saddened. Perhaps a little bit surprised in the unanimous decision that the court handed down."
English, who said opponents of gay marriage prayed outside the courthouse Friday as they awaited the court's decision, already has begun lobbying the legislature for an Iowa Marriage Amendment.

I guess they didn't pray hard enough?

Or God is gay.

I report, you decide.

[Cleon]

Yay for Iowa!


...Now there's a phrase you don't use every day...

[linusrichard]

Thank you, Brown, for filling this thread with what the kids these days are calling "win."

My friend and classmate, who follows the gay marriage fight very closely in every state, informs me that Iowa has a relatively difficult constitution to amend (that is, it can't be amended simply by referendum). So this decision should "stick" a little longer than, say, California's. As in, permanently, we may hope.

[Brown]

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.

[WildCat]

Originally Posted by Brown

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!

[Brown]

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.

[Thunder]

Originally Posted by DoubtingStephen

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.

[Tsukasa Buddha]

Originally Posted by parky76

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.

[KoihimeNakamura]

seperate but equal is considered unequal, Parky, for .. well, historical reasons.

That said...

[Brown]

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.

[Brown]

Damn! I should've applied for the million dollars, because I could have predicted with 100 percent accuracy the following (from various news services):

Quote:

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.

[WildCat]

Originally Posted by Brown

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.

[gdnp]

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.