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.

Comments

[tcnjjournalist]

Hello,

My senior thesis is on gay marriage and civil unions; I want to use survey results supplement my research. If you can take just five minutes to answer just five questions. I would appreciate it a lot.
Here is the link:
https://jedi.tcnj.edu/webteam/cgi-bin/formgenie/formgenie.pl?form=32770

[johnbdonovan]

We should be stoking a resurgence of support for the father-and-mother family, continually pointing out, for instance, that lack of social support for that has been the main contributor to its weakening and its weakening has been the main contributor to the social turmoil of our era. You can prove all that with commonsense arguments but the statistics on the turmoil in fathereless families also support this argument.

[JustSayMaybe]

I can make a commonsense argument for the sky falling in (gravity will have to tire out at some point - when was the last time we had the Earth's struts checked?) but that doesn't make it so. Lack of social support for the father and mother family is about as meaningless a phrase as I've heard recently. There is no lack of support, people love two-parent homes with happy cheery married couples. Acceptance of single parent homes and gay parent homes is not the same as lack of support for two parent hetero households. And the social turmoil of our era has more to do with greedy self-promotion, over-saturation of information (24 news programming just makes us crazier), and 'roid-rage level nativism. We're so short-tempered and self-absorbed, it's bewildering that there aren't fist fights over arm rest sharing in movie theaters. Everyone acts like they're in their own show, their own storyline, and everyone else is either there for their enjoyment or to be an antagonist. We forget that everybody in our lives has their own lives, and never ask if we're their antagonist.

[hcat]

If we have to have gay rights, it's better to have them on the analogy of "religious liberty" rather than "race," gays as the "new Jews" rather than the "new blacks." Religious identity is not changed easily, but there are Jews that join other religions; just as there are people of homosexual desire that get out of the lifestyle and sometimes marry people of the opposite sex. There are no ex-blacks, however. If we frame "gay rights" as parallel to religious liberty, the religious liberty of those who reject homosexual behavior will be more respected, and there will also be a better analogy with sexual freedom for straight people who do not abstain till marriage or stay in lifelong monogamous relationships. There are those who would say monogamy is unnatural for straight men, too, just as much as heterosexual monogamy is "unnatural" for a gay man.

[KBinIA]

I'm not L,G,B, or T but it's nice to know that every once in a while (as in the 2008 campaign and this Supreme Court decision) Iowa does something right. Congrats and best wishes to all who are celebrating this outcome.

On the other hand, where I live in Iowa, it's currently 33 degrees, snowing, with a NE wind blowing 19 mph. So, the weather still leaves something to be desired. :)

[mj22]

I am pretty sure that gender falls under intermediate scrutiny as well. Strict scrutiny would be great, but hey, at least we've moved up from "rational basis."

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/epcscrutiny.htm
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/era.htm

[FogCityJohn]

Emma,

I'm also a lawyer, and I'm not sure I agree with you that this is a "right/wrong" issue. My reading of the Iowa Supreme Court's opinion is that the court applied intermediate scrutiny in part because it seemed unwilling to wade into the question of whether sexual orientation is an immutable characteristic. Much scientific research suggests it is, and as a gay man, I can personally attest that it's not a choice, but answering that question would have embroiled the court in issues of fact. Since this was an appeal from a grant of summary judgment, the court probably took the wiser course by avoiding that issue.

In any event, in at least one way, the Iowa court's analysis is actually better for gay people than a strict scrutiny analysis would have been. The court has now said that the justifications for denying gay people the right to marry don't even survive intermediate scrutiny. That shows that the court thought the justifications were pretty insubstantial.

[likewisecc]

Agreed. The notion that 1) the govt's stated interests are not sufficiently substantial and 2) the means-end fit is so poor as to not survive IR is a good thing for gay marriage.

Yes, SS would lead to more laws being struck down, but IA (smartly) only addressed the IA law in the instant in light of the IA constitution. Should the Court have found that SS need apply, even though my intuition says that would've been the right move, the backlash would have been even greater from the right. And, the influence would have been small outside of IA.

[ReaderP]

Think this is a small issue? If you are in a legal gay marriage performed in Massachusetts, or Spain, or Iowa and you move to Wisconsin, there is penalty for a marriage that's prohibited or declared void in that state. Fines can range up to a $10,000 fine and up to nine months in prison.

There are two types of Marriage.
Civil: The state gives you a license to marry at the court house. Religious: A sacramental marriage where a state license is required by most religious institutions

Most wishing to deny civil marriage to same-sex partners wish to want to impose their view of Religious or personal distaste on those that do not share their beliefs. I can’t see this as anymore than denying of rights, freedoms and pursuit of happiness.

As the Iowa Supreme Court Decision mentioned, there are religions that permit or encourage commitment between same-sex partners.

And what about ‘activist judges’ agendas? Have they read the US constitution, or the states constitutions states? It’s the job of superior courts to interpret constitutions and laws, even those not politically popular.

Inter-race miscreation laws were once common in the US. Think of Nazi Germany too. These laws were overturned by ‘activist judges’. A law that is popular does not make it a freer America.

It is most abhorrent that many states have modified their constitutions to deny to same-sex or to others rights based on Religious beliefs of a majority.

[rextrek]

Interesting how a country (OUR COUNTRY) ..constant­ly BOASTS about Freedom this,and Freedom that..."Li­berty & Justice for All" blah blah blah.....E­MPTY Meaningless words..tha­t mean SQUAT!

STOP calingl it GAY MARRIAGE - It's Marriage EQUALITY
STOP calling it SAME SEX MARRIAGE - We do NOT call hetero Marriage "Opposite Sex Marriage"

If you don't like Marriage Equality - then DON'T marry someone of the same sex
NO Religion will be forced to Marry anyone they deem "unworthy"
NO Religion will be Locked up or Fined for speaking out against LGBT people - tho Tony Perkins and the AFA WILL LIE and say otherwise(even tho that's something Jesus would NEVER do..IF he ever existed)

America - LIVE UP TO YOUR Constant spread of LIES about Personal Freedoms..­Either we are ALL Free, or NONE of us are!

When in America has the Public EVER gotten to VOTE on any other Minority Rights? THEY HAVEN'T!
When in America was Religion USED to FIGHT Equality for Blacks,Women etc etc......T­OO MANY TIMES to COUNT!!!

[dshwa]

There is no country in the world that is more enamored of it's own PR than the U.S. Even when it is so clearly not true. Sadly for us, the rest of the world stopped believing our PR about 8 years ago. Worse for us, we don't have the money to keep trying to live up to our PR (see: Afghanistan). Pride goeth before the fall, and we're in for a long drop. We'll be better for it, in the long run, but the drop won't be pretty.

[Willow712]

If the popular vote had decided on Southern Integration, we would still have a segregated country. Lots of Southerners would have voted against integration. The Supreme courts should be deciding equal rights. Populations of people will not vote for equal rights, merely will vote ffor what they think will affect them. Even if it does not affect them personally, they will vote for things that authorities say will affect them, such as in Prop 8.

So proud that I live in Iowa. We may be sitting in the midst of corn fields, but we still know what is right and moral.

[Paulo1]

Ok let me look into my Crystal ball and predict the predicable

1) There will be a rush of weddings where the media will get lots of pictures of kissing because they have no clue as to how to cover the 1500 rights that come with civil marriage

2) Within a month or two there will be a very splashy gay divorce. Sorry ladies but based on the trend it will be a lesbian couple and be really nasty

3) The Religious Right led by the Mormon Church will raise a fortune to put an Anti Marriage bill before the voters. They will also whine about how they are really really really not anti gay while they spend lots of time hiding their tracks

4) HRC will lead a counter effort pushing aside local gay groups and insisting on ads and a campaign that will never feature a gay person. It will be totally inept and succeed only in finger pointing and fund raising

5) America will continue to evolve on the issue, this will go down in history as another small step

[LeftRight]

Actually, it doesn't matter how much money the Mormon church can raise. According to IA law, in order to pass a Constitutional Amendment you need to pass it through two legislatures, and then go to the people, which means that it will be AT LEAST 2012 before they can vote on it..... I'm gonna go out on a limb here and make another prediction. By 2012, the state of IA will still be here, still exist, and god won't have killed everyone in the state.

[PlaceboStudman]

And by 2012, there will be other states (California and Vermont seem to be next) on the list to drop like dominos in the path toward marriage equality, and by that time, those who oppose marriage equality won't have much of a leg to stand on

[midknightryder13]

Actually, it's two CONSECUTIVE legislatures -- and there doesn't appear to be much desire to even consider such a measure in the current legislature. So, it probably couldn't make it to the ballot before 2014.
(I believe I did the math correctly)

[carsntrucks]

This isn't right.

[SunDriedTomato]

You bet! It isn't right that I should be able to be responsible for my wife, rather than forcing taxpayers to do so!

It isn't right that my wife and I together should be responsible for our son. Dang it, the taxpayers want to be responsible for him!

Carsntrucks, I declare you to be the taxpayer who should foot ALL expenses for my gay family for the rest of eternity! Don't let us take care of ourselves! It "ain't right"! We need to depend on you! That's the moral choice! Cough up the dough, sweetie!

[carsntrucks]

WTF?

[PlaceboStudman]

Don;t even try to rationalize with Cars. We've dealt with it before. He's just here to cause trouble

[robivecchi]

Well you'll just have to get over it.

[Bluesue]

Good news BUT there will not be true equality until the Defense of Marriage Act (DOMA) is repealed or overturned. This act (signed by Bill Clinton) prohibits same sex couples from participating in the favorable treatment of hundreds and hundreds of federal laws that provide such treatment to heterosexual couples. This is true whether a same sex relationship is called marriage or a civil union.

Example:

The federal law ERISA governs employee benefits and the tax code allows favorable treatment for things like before-tax premium co-pays and health spending accounts.

A company may offer health insurance to dependents. A same sex couple can enroll in that insurance without any tax consequences plus they can pay the premium co-pay in before tax dollars and enroll in a health flexible spending account.

A same sex couple can enroll in the same health insurance plan BUT the value (not the premium co-pay, the value) of the coverage for the dependent spouse/partner will be taxable income and will be included on the employee's W-2. Plus the premium co-pay cannot be paid in before-tax dollars and the spouse/partner cannot be covered by a health spending account.

There are hundreds of such examples - all because of DOMA.

[PlaceboStudman]

Unfortunately, it appears Obama isn't going to touch DOMA, cause "he's got bigger things to deal with" than equal rights and fair treatment of the people he governs

[Marioth]

As much as I dislike it, this is pure political calculation. The soufflé, while now rising, is not yet done, so he must tread softly.

But there appears to be a thundering herd gathering in the plains of Iowa that is going to trample DOMA and DADT, and no amount of evil mormon blood-money is going to stop it.

The lesson of the Big O has always been the same: if the People want it, they must raise a Great Clamour.

[dsws]

Isn't it a well-established principle of good jurisprudence that a court should decide as little as necessary to reach a verdict? If a case comes before the Iowa Supreme Court that turns on what level of scrutiny is applied, then they should decide what level is warranted. Until then (or until someone convinces me that the principle is invalid or inapplicable), I don't think they should.

[LeftRight]

Generally that's true..... However, there are times where a widespread decision is needed, such as in the case of Loving v. Virginia, or gay marriage.

[dsws]

Would Loving have been any less effective if it had been decided on the Due Process clause alone, or on the Equal Protection clause alone, and the other had been addressed when and if it arose in a case that a narrowly-decided Loving wouldn't have applied to? Or isn't that what you're getting at?

[M1]

Emma,

It is time to celebrate. What a wonderful victory. Intermediate scrutiny is really not so bad.

[oafishcad]

A nation founded in liberty and equality sure is having a hard time ensuring liberty and equality. What year is this? My god to even debate such things is surreal. If your religion declines to be an equal opportunity marryin' kind of religion, well go ahead on, don't marry, but it really isn't your right to force your religious belief on me and my church which allows and encourages gay unions. You are denying my church religious freedom and equality. My Christ don't work that way.

[MuchMadness]

Who is denying your church religious freedom? You are free to interpret the scriptures as you please, even if your interpretations regarding marriage are far different from the interpretations of most Christians and most Jews.

[PlaceboStudman]

Doesn't the fact that there is room to have different interpretations and different readings kind of put a hole in the hole "One true God" idea? I mean, whose God is The One True God if there are so many diffferent interpretations even within a religion, let alone between readings.

[Marioth]

The People deny it during every election to high office: no non-christians need apply.

[Matt Carter]

Emma-

Great thoughts, as always. I'm not certain I fully agree that the strict/intermediate scrutiny is as much of a loss as you believe. As you know, there are immutable characteristics, like gender, that are subject to intermediate, rather than strict, scrutiny under the federal constitution. Also, intermediate scrutiny is almost certainly a better standard than the US Supreme Court came up with in Romer v. Evans (which I believe uses the rational basis standard, although I am still unclear as to how the Court came to its decision using such a lax standard).

I would also just point out that immutability is not required for strict scrutiny to kick in. The most obvious example I give here is religion. Discrimination on the basis of religious beliefs is evaluated under strict scrutiny, and yet one's religion is clearly a choice, and not immutable in the sense that race or national origin is. Therefore, I find the whole "let's prove sexuality is immutable" argument (which, by the way, is impossible) both distracting and detrimental to our real goal here.

That said, I believe that equal protection has never been our strongest argument under federal law. I think the answer lies, as it did in Loving v. Virginia, with substantive due process. Admittedly, "substantive due process" is not as sexy of a soundbite as "equal protection," but I think that is where the battle will eventually be won.

[M1]

Children of unmarried parents do not have immutable characteristics and they were given protected class status requiring the government survive strict scrutiny when abridging their rights.