01/08/2009 05:12 am ET | Updated May 25, 2011

Fighting for Gay Marriage in Iowa

This morning, you can get live feed of the oral arguments in the Iowa same-sex marriage case from the Iowa Supreme Court website. There may not be many of you taking time off from work to tune in, but I promise the arguments, at least from the County Attorney, are sure to entertain.

The Defendant, a Polk County Recorder, claims that marriage is not a fundamental right, that homosexual citizens are not a class of people that deserve the same equal protection as women and that, because of this, the government only needs to find one rational reason for the preservation of marriage as a union between a man and a woman.

Now, marriage may be a right logically, but courts across the country have refused to acknowledge that it is a "fundamental right." Even New Jersey, in their relatively progressive ruling in Lewis v. Harris (2006) found that same-sex marriage is not deeply rooted in the nation's history and thus, cannot be considered a fundamental right.

Equal Protection is the next logical stop for legal protection in the marriage debate. But courts have determined that the judicial scrutiny provided for legislation that imposes sex discrimination does not apply to discrimination based on sexual orientation. Confused? It seems like a leap to me too. Still, judges are reluctant to create a broad equal protection right that would require a significant increase in judicial review of legislative measures. So equal protection is limited, time and time again.

Even failing those two attempts at legal recognition for same-sex couples, Lambda Legal will argue that the government can't find a rational basis for maintaining marriage as a union between one man and one woman. And here is where it gets interesting.

The Defendant's brief reads:

Defendant has offered several possible rational reasons for limiting marriage in
Iowa to a commitment between a male and female:

• promoting procreation because sex between a man and a woman produces wanted and/or
accidental offspring;
• promoting child rearing by a father and a mother in a marital relationship which social scientists
say with confidence is the optimal milieu for child rearing;
• promoting stability in opposite sex relationships;
• conserving financial resources of both the parents and the state; and
• promoting the integrity of traditional marriage in American culture.

Legally, the Defendant doesn't have to prove that any of these reasons were the Iowa legislators' actual intention in restricting marriage to heterosexual couples. They simply have to, after the fact, pretend that the motivation was rational and offer some evidence to the court to support their argument. That's a pretty low bar. In fact, I can't imagine an easier legal test.

But how do you prove any of the claims put forward by Defendant in this case?

Limiting marriage seems to bear no rational relationship to whether men and women choose or don't choose to have children. There is no evidence offered in any brief filed with the Supreme Court that being married increases the chance that a couple will have children.

The fact that a one mother, one father household provides the "optimal" child rearing environment, may be purported by some social scientists, but, as the Florida District Court pointed out only weeks ago, there is no factual evidence supporting this view.

Promoting stability in opposite sex relationships may well be a valid goal. I, for one, sure wish I knew more happy couples. But limiting marriage has no effect on the existing marriage of straight couples. If anything, expanding marriage might (assuming you believe marriage in itself strengthens a bond between two people) promote stability in same-sex relationships. A laudable goal, no?

Promoting the integrity of traditional marriage is exactly what is achieved by excluding same-sex couples from the institution. However, the effect of a legislative effort is very different from a rational basis for pursuing that effect. How does preserving traditional marriage forward the goals of the State? What good does it do the citizens of Iowa?

Finally, you will see the Polk County Attorney argue that excluding LGBT people from marriage and all the benefits that go with it will save the State money. This, one might think, could be rational, after all. It does cost money to provide certain tax breaks to more couples and opening marriage to LGBT couples will increase the number of people getting married in Iowa. The problem for Iowa is that the Supreme Court found, thirty years ago, that cost saving may not be accomplished by distinguishing between classes of citizens. If this was a permissible basis, every exclusion would be rational because denying rights is almost always cheaper than expanding rights.

Does all this logical maneuvering mean that Lambda Legal will have an easy time in front of Iowa's Supreme Court? No.

Arizona, Washington, New York, Indiana and Maryland have found that there is a rational basis for preserving marriage as a heterosexual right. Turns out that, in law, public perception can override simple logic. In a time of miraculous victories for equality, here's hoping Iowa's court will continue to promote protection for all American citizens and uphold the decision of the District Court for Polk County.