05/04/2009 05:12 am ET | Updated May 25, 2011

Falling Short of Full Constitutional Protection for Gays in Iowa

This morning, the Iowa Supreme Court released a decision expanding the definition of civil marriage to include same-sex couples.

It is a huge victory. First, because Iowa now joins a handful of states to recognize same-sex relationships. Second, because it's Iowa that is allowing LGBT residents to fully enjoy the benefits of marriage.

Iowa is a swing state. Although Obama carried it in the last election, voters turned out in favor of George Bush in 2004. 75% of Iowans subscribe to Protestantism or Catholicism with only 13% of the population declaring no religious affiliation. Iowa is also an incredibly homogenous state -- 96% of its residents are white.

None of these factors, alone, indicate a population's willingness to include same-sex couples in their legislative scheme. However, taken together, they paint the picture of a state that is just as likely to ally with Kansas (a staunchly Republican state) as Wisconsin (where the Governor proposed same-sex partner benefits just this month).

The fact that the Iowa Supreme Court unanimously upheld the decision of the lower court to include same-sex couples in civil marriage is a huge feat and one that should be greatly celebrated.

In upholding gay marriage, the Iowan Court made a number of choices. Some of these were as progressive as the California Supreme Court in Re Marriage Cases and some were not.

The Court determined that the equal protection clause is a fluid part of the Iowa Constitution and that it must be interpreted according to the modern understanding of inclusion and exclusion. It decidedly rejected any originalist or "framer's intent" argument when considering the protection of individuals based on their sexual orientation.

The Court also expressly rejected the argument that the right to marry someone of the opposite sex essentially meant that the ban on same-sex marriages did not treat LGBT Iowans differently.

Finally, the Court found that LGBT people have endured a history of discrimination despite the fact that sexual orientation has no bearing on an individual's ability to contribute to society. Sexual orientation is immutable, or equivalent to an immutable characteristic like race and LGBT people have insufficient political power to overcome the legislative discrimination they face.

But, despite the fact that the above findings satisfy every element of a "strict scrutiny" analysis -- the heightened level of court review traditionally reserved for laws that discriminate based on race -- the Court chose to apply intermediate scrutiny -- a level of review that applies to legislation that discriminates on the basis of gender. Their argument is that, because the law fails intermediate scrutiny, there is no need to proceed with a strict scrutiny analysis.

Here, and only here, the Court got it wrong.

Applying strict scrutiny to laws that discriminate on the basis of sexual orientation is necessary to reaffirm the notion that sexual orientation is not a choice. It is not something that can be cured or "prayed away."

Applying strict scrutiny would also reinforce the fact that American history has not always been exclusively one of racial conflict. Instead, many groups have felt the legal discrimination now experienced by LGBT citizens. Strict scrutiny should reflect each of these categories.

Today, we applaud the Iowa Court, but we hope for better from them, too.