Activist Judge Overturns Iowa AntiGay Marriage Law

[DoubtingStephen]

An "activist judge" has ruled that the Iowa gay panic sanctity of marriage law is unconstitutional.

Quote:

In his ruling, Hanson said the state law allowing marriage only between a man and a woman violates the constitutional rights of due process and equal protection.

"Couples, such as plaintiffs, who are otherwise qualified to marry one another may not be denied licenses to marry or certificates of marriage or in any other way prevented from entering into a civil marriage ... by reason of the fact that both persons comprising such a couple are of the same sex," he said.

The judge said the state law banning same-sex marriage must be nullified, severed and stricken from the books and the marriage laws "must be read and applied in a gender neutral manner so as to permit same-sex couples to enter into a civil marriage..."

Link

[Lisa Simpson]

Good for him. I hope more judges rule the same way.

[Loss Leader]

Here's my prediction. Come back in four years to see how I did:

1. Judge grants stay pending appeal, preventing gays in Iowa from marrying.

2. Iowa Court of Appeals hears the case, finds the law unconstitutional on a technical issue nobody even brought up.

3. Iowa's Supreme Court hears the case, finds the law overbroad and orders the Legislature to create a civil marriage statute within ninety days.

4. Legislature hangs itself up, creating an utterly unworkable law.

5. A second round of suits ends in the Supreme Court ordering county clerks to allow gays to marry.

6. For four months, gay marriage is legal in the State of Iowa.

7. Iowa passes a Constitutional Amendment barring gay marriage but ordering insurance agencies to extend benefits to "queer life partners, interior decorators and women with mullets."

8. Campaigning for President in Iowa, Senator Clinton speaks of her affection for homosexuals, famously saying, "As you all know, my mother President Clinton was gay."

9. Aliens attack and we are enslaved by insect overlords.

[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.

Usually in a state where a court has ruled in a fashion that favors equal rights for gay people, the folks opposed to equality say that it is not a matter for the courts to decide. In many states legislatures have passed laws preventing gay marriage, there was no conservative response that this is not a matter for the legislature.

Here in California, when the legislature passed a bill that would allow gay marriage, our Party of Jesus Governator said it was not a matter that should be decided by the legislature. He vetoed the bill. Apparently it should be decided by the Governator.

[Miss Anthrope]

This judge will get a bit of fan mail from me, that's for sure.

This guy is my hero. I'm straight, but it bothers me to the core that someone who is not is denied rights that are given me for no good reason.

Washington, a very liberal state, has one of the lamest civil union laws ever. When you go to the page to download the form, it says it "registers your civil union but does not grant any legal rights". A complete joke.

My husband has suggested we divorce and get a civil union instead. Then I told him the only reason I married him was in case of emergency............

[Darth Rotor]

Originally Posted by DoubtingStephen

An "activist judge" has ruled that the Iowa gay panic sanctity of marriage law is unconstitutional.

Link

In his ruling, Hanson said the state law allowing marriage only between a man and a woman violates the constitutional rights of due process and equal protection.

It's sorta simple, that Fourteenth Amendment deal, isn't it? I am not so sure I get his "due process" finding as well as the equal protection, but the element of the XIVth has been the 800 pound gorilla in the room the whole time.

DR

[TragicMonkey]

Do opponents of gay marriage realize they're fighting a losing battle? Once the Baby Boomer generation starts dying out, the more liberal but less numerous younger generations will be enacting all sorts of wacky things. Kids these days aren't afraid of the gays at all, because they grew up with Spongebob and Tinky Winky and Steve from Blue's Clues. (I know, I know, Steve's not. But it would be awesome if he were. Dreamy. I'd totally gaymarry him.)

[ImaginalDisc]

Originally Posted by TragicMonkey

(I know, I know, Steve's not. But it would be awesome if he were. Dreamy. I'd totally gaymarry him.)

You're just falling for the heroin chic.

[pgwenthold]

Originally Posted by TragicMonkey

Do opponents of gay marriage realize they're fighting a losing battle?

Oh absolutely! Why do you think they are in such a rush to get this stuff passed NOW, without hesitation. It can't be because there is this massive rush of gay marriages happening everywhere. I said this long ago. They are doing it now because they know in 20 years no one will care.

In fact, when I write to my representatives and whatnot, this is the argument I make. Why rush? Why not give it time and let's see how much of a problem gay marriage is. Right now it obviously is not a real issue. Until it looks to actually be causing a problem in society, let's hold off on making any serious changes.

If Massachussetts falls to pieces because of their legalization of gay marriage, then we can act. But if they don't, then why bother?

[Orangutan]

Originally Posted by Miss Anthrope

My husband has suggested we divorce and get a civil union instead. Then I told him the only reason I married him was in case of emergency............

You could divorce and get a civil union and also sign enduring power of attorney over to each other.

[Beerina]

Originally Posted by DoubtingStephen

Here in California, when the legislature passed a bill that would allow gay marriage, our Party of Jesus Governator said it was not a matter that should be decided by the legislature. He vetoed the bill. Apparently it should be decided by the Governator.

This is rich given the conservative principle is that big cultural shifts should only happen via deliberative, legislative process. That doesn't mean he should feel he should have not vetoed it, but it does mean he should take the decision of his own state legislature seriously.

And if it shouldn't be in the hands of the legislature, in whose hands should it be?

[DoubtingStephen]

Party of Jesus Presidential Candidate and Magic Underwear aficionado Mitt Romney has not disappointed by attacking the Judge using standard Party of Jesus ad hominem technique:

Quote:

"The ruling in Iowa today is another example of an activist court and unelected judges trying to redefine marriage and disregard the will of the people as expressed through Iowa's Defense of Marriage Act," Romney said in a statement issued by his campaign. "This once again highlights the need for a Federal Marriage Amendment to protect the traditional definition of marriage as between one man and one woman."

Note that Mitt carefully avoided using troublesome phrases like equal rights.

It's all about the imaginary evil condemned by the Imaginary Bearded Sky Daddy.

Looks like Mitt has the hatemonger vote locked up already.

[Lisa Simpson]

Originally Posted by Beerina

This is rich given the conservative principle is that big cultural shifts should only happen via deliberative, legislative process. That doesn't mean he should feel he should have not vetoed it, but it does mean he should take the decision of his own state legislature seriously.

And if it shouldn't be in the hands of the legislature, in whose hands should it be?

From Wiki:

Quote:

In February 2004 when San Francisco Mayor Gavin Newsom, ordered a change in the certificate application documents to allow for same-sex marriages, Governor Schwarzenegger opposed the move as being beyond the powers of the mayor but also said that he supports gay rights and has expressed support for a law to grant civil unions to gay couples.

In 2005 when he vetoed a bill that would have legalized same-sex marriages he defended his actions by saying that California voters had passed an initiative banning such recognition and that he supports that state's domestic partnership law that gives same-sex couples many of the same rights as a heterosexual married couple.

Still, critics have observed that there is no federal requirement that other states recognize a state-granted domestic partnership, as is the case with marriages under the Full Faith and Credit Clause

[qayak]

Anybody know where one can send the judge an e-mail congratulating him on his courage?

[IMST]

Yay Iowa judge.


hey Washington state Democratic Supermajority in the legislature:
LET ME GET MARRIED IDIOTS!

hey Washington state supreme court: read this ruling and LEARN SOMETHING IDIOTS!

Seriously, Iowa? Before Washington, Oregon, California, New York, Connecticut, Minnesota, Vermont and all the supposedly liberal states but Massachusetts? Get with it liberals, help a gay man out here.

[nightwind]

I really have never figured out why anyone would be against gay marriage, if it doesn't hurt them in any way?

[DoubtingStephen]

Originally Posted by nightwind

I really have never figured out why anyone would be against gay marriage, if it doesn't hurt them in any way?

I think that the people in Iowa are desperately afraid there will be thousands of deaths as a result of the destruction of the Sanctity of Marriage. Take Massachusetts as an example. In only 2.5 years of gay marriage there have already been zero deaths, property values have gone down by 0%, and up to zero fundamentalist Christians have been forced to flee the state as a result of marital sanctity gay panic syndrome.

Seriously though, there are some people that are so stupid that when Fundamentalist Christian leaders predict non-specific dire consequences they believe it. We call these people the majority.

[yodaluver28]

Yeah this is one subject where I simply cannot comprehend the thought process of the people who disagree with me. I'm pro-choice but I understand the pro-lifer position. Some take to extremes, but I get where they're coming from, I really do. But there is just nothing that makes sense about the obsessive drive to stop gay marriage. I honestly don't understand what's supposed to be so pressing and perilous. What do they honestly think the worst-case scenario is here?

[Miss Anthrope]

Originally Posted by yodaluver28

Yeah this is one subject where I simply cannot comprehend the thought process of the people who disagree with me. I'm pro-choice but I understand the pro-lifer position. Some take to extremes, but I get where they're coming from, I really do. But there is just nothing that makes sense about the obsessive drive to stop gay marriage. I honestly don't understand what's supposed to be so pressing and perilous. What do they honestly think the worst-case scenario is here?

Awesome post. Couldn't agree more.

[Travis]

I think a large part of it comes from a fear of the unknown and the consequences of that unknown.

My Mom (who steadfastly believes I'm gay just because I can't get girlfriends) thinks that if gay marriage were legal that other things that are supposedly fundamental to society will disappear. For example she thinks that if a society can make gay marriage legal, then why not make theft legal, or murder legal? For her, and others like her, all abject morality, and laws derived from them, is not the product of a collaborative society but dictated by divine authority. For these people murder isn't wrong because it has ended a distinct human life, it's wrong because God commanded it was to be wrong. So for them because religious authority continues to state it's wrong, regardless of it's inherent irrationality, it is wrong. That it harms no one is irrelevant to them.

Now what makes this even more confusing is that these same people will often rationalize themselves around God's Will in other areas. Rationalizing theft or understanding that outlawing coveting, a thought process, itself is rather silly and impossible. But for this one, they stand their ground. To account for that one must also understand that the secondary element of this is the halcyonic view of the past that they have. Gays just didn't get married in the good-old-days and so they shouldn't now. This is the same mindset that kept women "in the kitchen" and out of the workplace for far too long.

Just my 2 cents on it.

[hgc]

Originally Posted by Travis

To account for that one must also understand that the secondary element of this is the halcyonic view of the past that they have. Gays just didn't get married in the good-old-days and so they shouldn't now.

Medieval gay marriage!

http://www.msnbc.msn.com/id/20464004/

[TragicMonkey]

Originally Posted by yodaluver28

Yeah this is one subject where I simply cannot comprehend the thought process of the people who disagree with me. I'm pro-choice but I understand the pro-lifer position. Some take to extremes, but I get where they're coming from, I really do. But there is just nothing that makes sense about the obsessive drive to stop gay marriage. I honestly don't understand what's supposed to be so pressing and perilous. What do they honestly think the worst-case scenario is here?

I've heard some voice concerns that legalized gay marriage will anger their god, and he'll vent his wrath on the whole country for allowing it to happen. He'll send things like 9-11s, hurricanes, and season after season of American Idol. Of course, we get all those things anyway, but that's just because we're still debating the issue.

[hgc]

Originally Posted by TragicMonkey

I've heard some voice concerns that legalized gay marriage will anger their god, and he'll vent his wrath on the whole country for allowing it to happen. He'll send things like 9-11s, hurricanes, and season after season of American Idol. Of course, we get all those things anyway, but that's just because we're still debating the issue.

Ah, collective guilt. Perhaps the worst and most dangerous aspect if religion, as it justifies control by religious authority over non-adherents.

[DoubtingStephen]

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

[Brown]

Originally Posted by Loss Leader

Here's my prediction. Come back in four years to see how I did:
[spoiler omitted]
...2. Iowa Court of Appeals hears the case, finds the law unconstitutional on a technical issue nobody even brought up.

3. Iowa's Supreme Court hears the case, finds the law overbroad and orders the Legislature to create a civil marriage statute within ninety days.
...

There's trouble right there in River City. In Iowa, appeals go directly from the district court to the Supreme Court. They do not ordinarily go through the Court of Appeals.

Iowa has a Court of Appeals, but the Court of Appeals hears cases assigned to it by the Supreme Court. The Supreme Court retains the right to "further review" of Court of Appeals decisions. A link to the basics. (By the way, if you thinks this is confusing, as a New York lawyer why his Court of Appeals is higher than his Supreme Court.)

The issue in such a case is unlikely to be deflected to the Court of Appeals. Chances are the Supreme Court would hear the case itself.

I just wanted to make that procedural point before addressing the issue in a little more detail.

[Brown]

Originally Posted by DoubtingStephen

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

Another minor point. Iowa has County Attorneys, not District Attorneys. Same thing, but different title. The current County Attorney in Polk County is John Sarcone. The attorney who argued--apparently to Judge Hanson--that the issue is not for the judge to decide was an Assistant County Attorney, according to the Des Moines Register.

[ponderingturtle]

Originally Posted by yodaluver28

Yeah this is one subject where I simply cannot comprehend the thought process of the people who disagree with me. I'm pro-choice but I understand the pro-lifer position. Some take to extremes, but I get where they're coming from, I really do. But there is just nothing that makes sense about the obsessive drive to stop gay marriage. I honestly don't understand what's supposed to be so pressing and perilous. What do they honestly think the worst-case scenario is here?

The main reason seems to be, if it was such a good thing, they would have set that up a long time ago. So because marriage as a tradition is old you must keep it as it is.

The arguments about families don't hold up because if you really thought that then you should want to make even more drastic changes to marriage than letting two individuals of the same sex marry.

[Terry]

Originally Posted by DoubtingStephen

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

Fixed it for you, dear

[DoubtingStephen]

Thank you dear, I sort of thought somebody might seize that opportunity.

[Brown]

Here is a link to the judge's decision. I recommend reading it. Whether you agree with the decision or not, you should read it in order to be well-informed. (I have previously taken others to task for expressing very strong opinions about documents that they have not bothered to read.)

The plaintiffs in the case are individuals who want to marry. The defendant is the former Polk County Recorder/Registrar who refused to allow the marriages to be recognized (and this is why the Assistant Polk County Attorney was arguing in the case).

Judge Hanson begins with some basic stuff, subjects taught in the first year of law school. What is summary judgment? What is relevant evidence? Basic stuff.

Things start to get interesting when Judge Hanson rules that the testimony of some so-called experts is inadmissible. Experts on ethics, religion and law were determined to be unqualified. The reasons given are interesting. In the case of one so-called expert, she didn't want to support her findings with "empirical research and methods of logical reasoning," preferring instead to rely upon "moral intuition." Judge Hanson found two other individuals likewise unqualified:

Quote:

The views espoused by these individuals appear to be largely personal and not based on observation supported by scientific methodology or based on empirical research in any sense.

Still other experts are disregarded for having no empirical research to back up their testimony. They want to express opinions about sociological matters without having any training in sociology or social science. They want to express opinions about child development without having any training in that field. They want to express opinions about psychological matters without having any training in psychology or psychiatry.

It is strongly implied that these folks all want to tell the judge what the law ought to be (and not merely the impact of a law upon people). Although the Judge does not put it in this way, there is no person in the world who is qualified to sit in the witness chair and tell the judge what the law is or is not or ought to be. In his courtroom, only the judge is qualified to decide these things. (Police officers are very aware that a judge does not let a witness testify about law, and they know that they are not permitted to testify that a person was "operating a vehicle illegally" or intoxicated "above the legal limit.")

Although the Judge ruled that some of the experts would not be considered, he also ruled that three remaining individuals were experts in medicine, child development and mental health. Their testimony, he said, would be considered.

The Plaintiffs (the individuals who wanted to marry) had their own experts as well. One of them was Dan Johnston, whom I mention, but not by name, in this thread. Johnston was one of the men who argued the famous Tinker case to the U.S. Supreme Court, and I worked for him for a few months. Another witness was John Schmacker, who used to go to the same church I did (he was an excellent musician and was the church organist for many years). Judge Hanson ruled that Johnston's and Schmacker's testimony was anecdotal and inadmissible, for basically the same reason that some of the defendants' expert testimony was inadmissible.

Those who would label Judge Hanson as "activist" or "legislating from the bench" would do well to read those sections of his opinion in which he discusses evidence. Legislatures are not bound by such rules of evidence, but Judge Hanson is. Moreover, Judge Hanson will not consider personal opinion, no matter how deeply held or how prestigious the person holding it, without some specialized study backing it up.

There follows a rather illuminating discussion of some of the testimony proffered to the judge. Basically, the judge is posturing the matter to move it toward a ruling, but the discussion is interesting nevertheless.

Beginning on page 16 is the list of facts that (according to the judge) is not subject to material dispute. One of those key facts is that homosexuals in a committed relationship are not treated the same way as heterosexuals in a committed relationship. In other words, that there is discrimination is not in dispute at all. The principal question is: Is this discrimination legitimate? Generally speaking, legitimate discrimination is constitutional (under the Iowa Constitution and the U.S. Constitution, although the two constitutions may disagree on the standards of legitimacy), while illegitimate discrimination is not.

The statute in question provides: "Only a marriage between a male and female is valid." The Plaintiffs challenged the statute under the Iowa Constitution, NOT the U.S. Constitution.

Many of the harms that result from this discrimination are set out in the judge's opinion. They are deemed not subject to dispute. Gay couples are stigmatized. Their children, not being able to benefit from a family marriage, are bastards. Things in daily life that married couples take for granted are denied to those in committed gay partnerships. The list of disparities is a long one.

Beginning on page 27 is a list of facts about sexual orientation. According to Judge Hanson, none of them is in dispute:

Quote:

57. Homosexuality is a normal expression of human sexuality....

58. As lesbians and gay men, each of the Plaintiffs experiences an innate attraction to people of the same sex. Plaintiffs would not help (and cannot change) that they have fallen in love with a person of the same sex.

59. A person's sexual orientation is highly resistant to change.
...
62. Sexual orientation is a trait unrelated to ability....

72. Nothing about a parent's sex or sexual orientation affects either that parent's capacity to be a good parent or a child's healthy development ("adjustment").
...
74. Children raised by gay and lesbian parents are as well-adjusted and as psychologically, emotionally, educationally and socially successful as children raised by heterosexual parents.
...
76. (I)t is also well-established that children do not need a parent of each gender to be well adjusted, that both men and women have the capacity to be good parents, and that children do not need male and female role models in the home to develop normally.

There are those who (assuming they read this document) would howl at such findings. And yet, contrary findings were not supported by any admissible evidence.

Beginning on page 37, Judge Hanson discusses the extensive and "unthinkable" changes that have occurred to the institution of marriage over the years. Wives used to be property. Certain racial and ethnic prohibitions used to be commonplace. Divorce used to be fault-driven.

Judge Hanson properly points out that Iowa has been very progressive in the area of family law: the third state to do away with miscegenation laws, the second state to institute no-fault divorce. (Judge Hanson does not go into detail, but Iowa has a very impressive record on women's rights and opportunities for women in schools, government and social programs. This is a touchy subject, however, because more modern voters swatted down several equal rights amendments to the Iowa Constitution. Iowans adopted an ERA a few years ago, however.)

At issue is the sex-role conformity that still is a part of Iowa law. The progressive history that leveled the playing field for women and for many other minorities has not been applied to gays. On the contrary, the state legislature has deliberately and repeatedly tried to keep homosexuals from having legal protection.

Against this factual background, Judge Hanson turned to the law (page 43). And in my next post, so do I.

[Safe-Keeper]

Arguments against homosexual marriage range from the well-meaning to the absurd to the outright hateful. If you'll permit me, I'd like to recap:

1. Appeal to emotion fallacy - 'think of how much the poor children of gay parents will be bullied!'. Lacks grounding in reality. Kids of gay people are treated as well as kids of straight people by their peers. It's also worth mentioning that if fundies want to do something good for these kids, they should research the subject and stop mercilessly subjecting their parents to hatred. Children should not be forced to grow up watching their parents take flak more efficiently than a Ju-87 bomber over London during the dreaded Blitz.
2. Appeal to religion. In my view, myths and politics, and as a side note nationalism and politics, should be separated by as thick a wall as possible. If you have a case to make, make it with logic and reason. Oh, and your bigoted notion that the US was founded as a Christian nation and that every state which strays from the One True Law™ will become Communist or get bombed by brimstone can end. Now.
3. Slippery slope fallacy - if we allow gay marriage, people will start pushing for marriage between man and animal, or adults and kids! etc. Totally irrelevant. Legalizing gay marriage will very likely encourage nutters to push their wishes, but we'll take that as it comes. You can't make decisions based on the slippery slope idea unless you can prove to me that the slope is sufficiently slippery to prevent any sort of efficient braking.
4. Appeal to tradition fallacy. Tradition is merely lots of people systematically doing the same thing over a long period. This is inherently irrelevant to whether or not the action is desirable. A democratic tradition is worth maintaining, a tradition of slavery is not. You get my point.
5. Appeal to the 'sanctity of marriage' (what the [rule 8] does 'sanctity' mean anyways?!). This usually is a two-fold argument, part an ignorant appeal to tradition stating that marriage has always been inter-gender, and part the nutcase hypothesis that the gay rights movement is responsible for the rising divorce rates. This conveniently disregarding that correlation does not have to equal causation. I also wonder if the people using this argument realize that 'in the good ole days™', you couldn't marry outside your religion and ethnicity, and spouses couldn't divorce their abusive spouses. Is that really what they want to return to? It's as much 'tradition' as the restriction on gay marriage, after all.
6. Appeal to nature. Bigots love to claim that animals don't engage in homosexuality. Funny thing is that whenever it's pointed out to them by me that this is not true, they forget they ever thought it mattered in the first place and start demanding that I tell them how on Earth the degree of homosexuality in nature could possibly be relevant to the discussion. For real. It virtually never fails. They do it nearly every time.
7. Appeal to democracy, popular opinion, roles of certain institutions in making decisions, etc. Possibly the only point in the whole list to not be total nonsense.
8. Fallacious appeal to - of all things under the Sun - the bloody dictionary. 'This book of mine says only men and women marries and doesn't speak off those guys with teh ghey!'. Right. And the entry on 'Flight' in my encyclopedia from 1894 has no reference to airplanes. I suppose we should stop saying airplanes 'fly', then, as that word is restricted to birds? 'You're in violation of key paragraphs of our God-inspired... dictionary and the sanctity of flight! Yeah. Stop. Now!'. Right. Bring it on.
9. Misunderstandings on fitness of parenting. See later in my post.
10. Other arguments not worth mentioning, like 'OMG it's teh grosses me out!!111'. Lots of things gross me out. I don't try to ban any of them.

Quote:

72. Nothing about a parent's sex or sexual orientation affects either that parent's capacity to be a good parent or a child's healthy development ("adjustment").

Fundies will start screaming about how he's endorsing pedophilia in 6... 5... 4...

Quote:

74. Children raised by gay and lesbian parents are as well-adjusted and as psychologically, emotionally, educationally and socially successful as children raised by heterosexual parents.

76. (I)t is also well-established that children do not need a parent of each gender to be well adjusted, that both men and women have the capacity to be good parents, and that children do not need male and female role models in the home to develop normally.

In fact, there are studies that show that children of lesbian parents perform better socially and are less frequently abused than children of heterosexual parents. Let me see if I can dig it up.

Doesn't bode well for us guys. What with women being able to make kids with each others through modern science, and proving fit to be better parents without us... looks like we're becoming obsolete.

Quote:

The arguments about families don't hold up because if you really thought that then you should want to make even more drastic changes to marriage than letting two individuals of the same sex marry.

Exactly. Lots of people like to use gays as scapegoats for the rising divorce rates. This probably so they won't have to actually work to reduce it by means of education or funding to marriage counseling or other measures. I myself am very much in favor of High School classes telling kids what to expect from marriage, how to plan ahead, divide responsibility and handle conflicts, and so on. Put it into Home Economics or make it a whole new subject. With divorce rates over 50%, it's certainly more than important enough.

[Brown]

Just a reminder: The decision can be found here.

The Iowa Constitution provides: "(N)o person shall be deprived of life, liberty, or property without due process of law." In addition to a Due Process Provision, the Iowa Constitution has an Equal Protection provision. Although these provisions parallel the U.S. Consititution, Iowa is not obligated to follow U.S. Consititutional jurisprudence when deciding questions under its own constitution. Iowa can (and does) look to federal cases for guidance, however.

In both Iowa and Federal law, a key inquiry is whether a law affects a "fundamental right." If the right is "fundamental," the law affecting it must be viewed with the elevated degrees of scrutiny. Freedom of expression is a fundamental right. Voting is a fundamental right.

And the right to marry is a fundamental right.

By Iowa law, it is a right allowed to some, but denied to others.

Laws have to be supported by reasons. When the law impinges upon a fundamental right, the reason has to be a damn good one. But in light of the facts set forth earlier in the ruling, where is the reason? Personal opinion won't cut it, nor will conclusory assertions that aren't backed up with empirical studies. If the state is going to grant certain rights to one group but deny those same rights to another group that is similarly situated, the state must have a compelling reason for this discrimination.

The County Recorder listed five reasons to ban gay marriage (p. 50). Judge Hanson not only found the reasons uncompelling, he found them so lame that they wouldn't support the marriage ban even if there were no fundamental right at stake. One of the supposed governmental interests, that of promoting traditional marriage for its own sake, was not deemed to be a legitimate governmental interest at all.

To the extent that the proffered reasons were legitimate on their face, they were insufficient to justify the discrimination, in Judge Hanson's view, because they were unsupported by evidence. In this thread and this thread, I discuss the concept of "legislative factfinding," a process in which the legislature can "find" as fact things that are clearly at odds with the weight of the evidence. If the judge were "legislating," he could engage in the same shady and often dishonest practice. But because he's acting as a judge, he has to base his decision on evidence. And in this case, the evidence was not only overwhelming, it was basically one-sided. (This is perhaps a credit to the Assistant Polk County Attorney, who apparently argued the case zealously but who refused to go "into the gutter" by branding all homosexuals as evil people per se, unfit parents or sick deviants.)

One of the proposed governmental interests behind keeping gays from marrying is what Judge Hanson called "responsible procreation." Yet there was no record supporting any conclusion that homosexuals as a group were irresponsible. On the contrary, the undisputed facts were that homosexuals could be good parents. Moreover, heterosexuals were allowed to marry even if they didn't (or couldn't) procreate.

The other principal governmental interest is "conserving state and private resources." Judge Hanson gives this argument short shrift, but on a surprisingly technical basis. The issue could be swiftly handled on its merits, but Judge Hanson rules that the Defendant has failed to meet an evidentiary standard (which may indeed be the case, as this ground has far less appeal than the "responsible procreation" grounds).

In the end, Judge Hanson determined that both the Due Process and Equal Protection provisions of the Iowa Constitution were violated.

Now, will this opinion hold up on appeal?

First, consider the composition of the seven-member Iowa Supreme Court. The Court has long resisted meaningless labels as a "liberal" or "conservative" court, but one who knows the justices can easily find more than four justices who would be inclined to consider the striking down the statute, and all of them would give the issue serious consideration. In addition, all of them would be impressed by the work that Judge Hanson put into his ruling.

Second, there is a weakness in Judge Hanson's ruling, namely, he decided the issue on summary judgment. It can be difficult to defend summary judgments on appeal because any dispute as to any material fact is supposed to preclude summary judgment. If there's a dispute as to any material fact, then the issue has to go to trial for resolution. The Iowa Supreme Court could, and perhaps would, vacate the ruling on technical grounds, saying that there was a disputed issue of material fact. This wouldn't be the same as saying that Judge Hanson was wrong, but it would postpone the effective date of the ruling for perhaps a year or two.

[Brown]

Here's a link to a follow-up in the Des Moines Register. Please note that this is a "column," not an "article"; it is supposed to have doses of opinion and observation in it.

Quote:

The ruling now, apparently, will be up to the Iowa Supreme Court. God, meanwhile, still believes marriage should be between one man and one woman. At least that's what almost all the churches say, including Robert Hanson's church, West Des Moines United Methodist.

I hate to disappoint anyone, but it wouldn't be fair to call Hanson a godless secular humanist. Or even a garden-variety secular humanist.

"I understand that he's an active, devout layperson in his church," said Gregory Palmer, the resident bishop of the Iowa Area United Methodist Church. "There are nominal United Methodists, but I don't believe the judge fits that description."

The church says homosexuals shouldn't be allowed to marry. And Judge Hanson is an active member of that church.

But Judge Hanson placed his duty as a judge ahead of church teachings. When push came to shove, church teachings aren't evidence. And Judge Hanson was wearing the robes of a judge, not the robes of a clergyman.

It is somewhat refreshing to hear that the church bishop still regards the Judge as a "good Methodist" and is proud that he is a member.

[Safe-Keeper]

Quote:

But Judge Hanson placed his duty as a judge ahead of church teachings. When push came to shove, church teachings aren't evidence. And Judge Hanson was wearing the robes of a judge, not the robes of a clergyman.

Good, good, good man.

As for the argument that marriage is for making kids, it's so silly I can't even begin to fathom it. First of all, as you said, there's the fact that sterile people and couples not interested in having kids being entitled to marry without receiving flak from the bigots. Secondly, there's the fact that there exists in every country a number of orphans, or kids of parents unfit to care for them. If everyone's going to make kids and no one's going to take care of the existing ones, what do we do with those without good parents? Do we just leave them to rot in orphanages?

I do believe, actually, that the fact that gays and lesbians can't have kids together is one of the main reasons to support gay marriage. The couples, unless they procreate through artificial means, adopt kids from orphanages and give them good, caring homes to live in.

[Brown]

Here's a link to a story about presidential candidates, many of them traipsing through Iowa, commenting upon the ruling. Anybody want to make a bet that NO ONE of them has read it or made the first effort to understand it or dissect it?

Mitt ("Mitt, Mitt, full of grit!") Romney: "The ruling in Iowa ... is another example of an activist court and unelected judges trying to redefine marriage and disregard the will of the people as expressed through Iowa's Defense of Marriage Act." Oh, pardon me, Mitt, but perhaps you can enlighten us on other "activist" rulings, especially from Iowa? Or perhaps you'd care to comment on the fact that while Iowa judges are appointed they stand with their names on the ballot for retention during elections, and thus can be rejected by voters? (Indeed, the electorate booted out a judge as recently as 1998.) And maybe before you'd go off on the "will of the people," you'd check and see what a majority of Iowans actually think?

John ("This candidacy will self-destruct in ten weeks") McCain: The ruling is "a loss for the traditional family." REALLY? What, pray tell, have heterosexuals "lost?" McCain bounded from one non sequitur to another: "The ruling of the court only reinforces my belief that we must have a president who is committed to appointing strict constructionists to the bench." But Senator, this was a STATE issue, decided under the STATE constitution (as anyone who read the ruling would know). Remember when Republicans used to be really big on something they called "states' rights?" Besides, what makes you think that this opinion WASN'T a strict constructionist opinion? As anyone who read the ruling would know, Judge Hanson relied upon text and precedent, and did not pull any new rights out of thin air. Pray, Senator, enlighten us with your wisdom.

Sam ("Dumber than George W. Bush, if such a thing is possible") Brownback: "This decision shows how important it is to elect leaders who will stand for marriage and who will appoint judges that will not legislate from the bench." Too bad, Sammy. Democrat Chet Culver just started his term as governor this year. It'll be more than three years before such an election takes place. And besides, Sammy, you haven't read the ruling either, as evidenced by your pathetic "legislate from the bench" remark.

Rudy ("More marriages than kidneys") Giuliani: "Rudy Giuliani believes marriage is between a man and a woman." Oh, this one is too easy. I'm leaving it alone.

Hillary ("I've got more balls than any Republican") Clinton: Said she favors civil unions "with full equality of benefits." But she said the question of same-sex marriage should be left up to the states. Bland, but at least there is no suggestion on her part that she has actually read the ruling.

Barack ("Yes, my voice HAS cracked") Obama: Said through a spokesman he "believes these matters should be left to the states, which is why he opposes the Defense of Marriage Act." Noncommital and kinda misses the point, but what the hey.

[Brown]

Originally Posted by Safe-Keeper

As for the argument that marriage is for making kids, it's so silly I can't even begin to fathom it. First of all, as you said, there's the fact that sterile people and couples not interested in having kids being entitled to marry without receiving flak from the bigots. Secondly, there's the fact that there exists in every country a number of orphans, or kids of parents unfit to care for them. If everyone's going to make kids and no one's going to take care of the existing ones, what do we do with those without good parents? Do we just leave them to rot in orphanages?

I do believe, actually, that the fact that gays and lesbians can't have kids together is one of the main reasons to support gay marriage. The couples, unless they procreate through artificial means, adopt kids from orphanages and give them good, caring homes to live in.

Judge Hanson mentions another class of heterosexuals allowed to marry, even though they can't have kids: PRISONERS! Yes, your scum-sucking (but technically straight) felon in the pokey has the right to marry, even if law-abiding gay couples don't.

It may also be a good idea to remember what George Carlin said: Gay couples WON'T HAVE ABORTIONS! If you're really opposed to abortions, then shouldn't you be in favor of committed relationships that are guaranteed not to have abortions?

[Miss Anthrope]

Don't they realize if we let the gays get married, god will be very angry and the rapture will happen?

[ponderingturtle]

Originally Posted by Brown

Those who would label Judge Hanson as "activist" or "legislating from the bench" would do well to read those sections of his opinion in which he discusses evidence. Legislatures are not bound by such rules of evidence, but Judge Hanson is. Moreover, Judge Hanson will not consider personal opinion, no matter how deeply held or how prestigious the person holding it, without some specialized study backing it up.

I thought you knew activist judge was a political term for "Judge making ruleings I don't like and changing the status quo"

[Tressa]

This reminds me of the fact that forty or so years ago a black person and a white person couldn't marry because many people thought it "immoral" or worse yet some sort of "interspecies" mating.

Can't keep love apart forever. It is a loosing battle.

This issue mostly bothers me because it is such a waste of precious time. Other issues are so much more important (the war, education, health system, etc) and time is being wasted on an issue that is really only an issue because a bunch of loud mouths are screaming "eeww we don't like that!"

Lewis Black covers this issue well in "Red, White and Screwed" when he quotes a congressman (from pennsylvania I believe, who's name I am sorry to say I cannot remember) as saying that "gay marriage is a threat to the American family" and then says that the statement shows "a level of ignorance that is staggering in this time period."

The fact that adult of age citizens who have the right to marry are being denied their right to marry is just mind boggling to me. Don't like, don't go to the wedding, don't go to their house for dinner, don't throw an anniversary party for them, etc, etc, so on and so forth. Next issue please!

[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.