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.

Comments

[LunaNik]

The defendant's arguments are ridiculous.

1. They claim promoting procreation is a laudable goal, which would argue for not allowing anyone to marry unless they agree to be legally bound to have children.

2. Many children have been raised by only one parent, including my daughter. She is healthy, happy, and a straight A student in college. Quality child-raising does not depend on two parents; it depends on a parent's commitment.

3. Considering that the divorce rate is over 50%, traditional marriage has done a lousy job of promoting stability in opposite sex relationships.

4. Ah, the money argument...I wondered when that would rear its ugly head. A state cannot deny rights based on financial concerns, sorry.

5. Promote the integrity of traditional marriage? Too late! (See #3.)

The SCOTUS ruled, in Loving v Virginia, that marriage is a fundamental right. End of argument. So, to the troglodytes I say, time to come out of the cave and into the 21st century. If marriage is a fundamental right, they any two or more consenting adults who want to get married should be allowed to do so.

[DeanKRyan]

"Traditional" marriage " heterosexual marriage " is not going to suddenly evaporate. It does not require protection because men and women will always have the right to marry each other, regardless of whether or not I am allowed to marry my partner. It is ridiculous to assert that the success or sanctity of traditional marriage is dependent upon depriving me of the same opportunity for happiness that is given to every single heterosexual person in this country. What I am and who I am will not change your marriage or change your church. Another great promise of America is that I live in a country where, someday, I hope to be able to love whom I love without fear of reprisal.

[DeanKRyan]

Allowing same-sex marriage will not magically detract from any resources provided to parents by the state.

There is no basis that limiting marriage will promote the integrity of traditional marriage. In fact, marriage has only recently come to be called "traditional," usually by those who claim to be defending it from people like me. The many definitions and defenses of traditional marriage are also, therefore, recent.

However a church chooses to recognize marriage among its parishioners is up to them. That is their right, and no one is looking to change that. I say to them, "You will always be able to believe what you believe, love whom you love, and pursue your own truth and happiness." That is one of the great promises of America.

Majority rules in a democracy, and that"s as it should be. Yet democracy does not fairly represent everyone"s best interest, especially in matters of social equality. Equal rights for women and blacks did not arise through a purely legislative process. It required protests. It required activism. It required speechifying. It required the courts.

[DeanKRyan]

The Defendant states that social scientists say that a heterosexual marriage is the optimal milieu for raising a child. I am inclined to agree that such a marriage is more likely to be stable - economically & psychologically " than a single parent household, or a foster home, or a group home, or living on the street. But this does nothing to prove that homosexual couples are not capable of raising a child. How could it? After all, there is no such thing as a homosexual marriage and therefore social scientists cannot conclude anything about them. How they can interpret or incorporate such data when that data doesn"t even exist? Even the Florida state court has stated that this "social science" argument doesn"t hold water.

I also agree with the Defendant that a marriage between a man and a woman promotes stability in opposite sex relationships. It logically follows that same-sex marriages would promote stability in same-sex relationships. Limiting marriage will not change the stability inherent in opposite sex relationships. I can reasonable conclude, then, that the Defendant is not interested in promoting stability for anyone else.

[DeanKRyan]

And they are legal rights, not privileges. But when the definition of marriage is limited to a commitment between a man and woman, when a line is drawn between groups of human beings, when a group is denied the same protections given to another, those rights become privileges.
Limiting the definition of marriage¦ banning gay marriage¦ protecting traditional marriage¦ call it what you will. At its heart, such measures withhold the rights that I am entitled to as a citizen of the United States of America. To ask for the same rights afforded to the majority is not special treatment, it is equal treatment. I, and millions of others just like me, shouldn"t have to ask for it.

Thanks to the passage of Proposition 8, there are people across the country " people in the state of Iowa " gays and lesbians and straight friends and family members and activists and housewives and homebodies who are no longer asking for equal rights. They demand them, and they will not be denied.

[DeanKRyan]

We are not extraordinary people. We share a small apartment. We enjoy spending our evenings at home; making dinner, watching movies, reading books. We have a cat. We shop at the same grocery stores and live in the same neighborhoods, breathe the same air, and we want a lot of the same things.

We wouldn"t mind a bigger apartment, a place to store our books and enjoy our hobbies. It would be nice to travel and see the world. And yes, it might be nice to get married. Nothing flashy or extravagant " just a couple of witnesses to join us at the court house to make it official, followed by a party so we can celebrate the occasion with friends and family.

It would be nice to know that I and my partner have the legal protections of marriage if one of us falls ill or dies, which hopefully will not happen for many more years. It would be nice if my partner " my husband - could visit me in the hospital; that he could benefit from my pension after I am gone; that he, as my spouse, had the legal right to make decisions for me should I become incapacitated. These are comforts and securities taken for granted by heterosexuals. Should something happen to one of them, they don"t have to worry that their spouse will be denied their legal rights.

[billy goat]

How utterly simple is that!

[DeanKRyan]

I am a native son of Iowa. I was born in Des Moines, raised in Sioux City and attended college at the University of Iowa. I come from a conservative family whose values have shifted over the years to make room for me. My parents are, as they have ever been, loving and supportive of their gay son.

In the fall of 2006 I met my partner. He lived in California and we began a long-distance courtship. Like any couple newly in love, but deprived of each other"s company, we called each other nearly every single day and talked for hours on end, often until one or two o"clock in the morning. In the first few months, I flew to Los Angeles to see him, and he visited me and stayed with my parents on several occasions. I was head over heels " I still am " and in March of 2007 I made the challenging decision to pick up what little I owned and move to Los Angeles so he and I could be together.

I am lucky enough to feel loved and accepted by my partner"s family as well.

[Nikola Tesla]

San Francisco Supervisor and Assemblyman Elect Tom Ammiano gives a speech on November 15th, 2008 at the Proposition 8 Passage Protest on the steps of San Francisco's City Hall, the site of San Francisco Supervisor Harvey Milk and San Francisco Mayor George Moscone's Murder. Watch it and more @

http://www.trifecta.tv/prop8/

[Giada]

Thank you for the link.

[Alex Leo - Huffpost Blogger]

I have a blog crush on you, Emma Ruby-Sachs. (Is that a thing?) Anyway, fabulous as usual.

[it is me]

I have a partner of several years who is from France. I keep hearing that we should "let the states decide" and about state civil unions are the same as marriage. They are far from it. He has been waiting for almost 2 years for his greencard (he has been living, working, paying taxes here since 1996). If he is laid off from his job, then he is sent back to France within two weeks. I own my own house. For me to have his name put onto the deed will cost us almost $22,000- in fees. If a typical couple gets married the house is now owned by both parties for $50.
I am totally fine with civil unions - but to me they must be at a federal level and they must have the same rights. While I disagree with people who are against gay marriage for religious reasons, I fully understand, accept, and respect that. But handling this on a state basis just doesnt make sense. If federal civil unions were created with all of the same rights as a marriage - why do I care about the word marriage? But knowing that people can order a bride (or groom to be fair) online and bring them to this country and have all of the rights, while I cannot, really does feel that I am not a full citizen!

[jimdarling]

I need a little clarification here: does the 'rational basis' need to be provable, i.e. heterosexual couples really are the best child-rearers? Or does the state only need to prove that legislators may have believed that was the case when the law was passed? If it's the latter, Lambda Legal has no case to speak of. If it's the former, they have at least a chance.

The first three points might not go through because they're all based on the idea that, essentially, if gays can't marry, they'll end up in heterosexual relationships. Sad to say, without equal rights protection for homosexuality, the point that the law was passed to preserve the state's money makes sense from a legal standpoint, assuming the state would lose out on tax money if homosexuals could marry. Even sadder, without equal protection the state can simply claim the final point, preservation of the integrity of marriage, and I don't see that there's any way around that. A rational basis doesn't have to be a good reason; just one that would be effected by the passage of hte law in question.

[adoantarel]

These arguments generally make good points, but there is one element missing. For the most part, the defendant's arguments make the case for why opposite-sex marriage is a good thing. It is good b/c it promotes stability, provides the best atmosphere for a child (assuming parents get along and stay together, a big if today), promotes stability. This is pointless, because no one is arguing against that. I think if a man and woman want to spend their lives together, they should be allowed to marry.

What the defendant has not successfully argues is how same-sex marriage is bad. How would it limit any of the benefits of opposite-sex marriage? How would it, in fact, hinder anyone? It wouldn't. Does anyone believe that gays will become straight if they cannot marry? That they will form opposite sex couples and families? I would hope not, since such families end in disaster for all.

Would allowing gays to marry stop a single straight couple from getting married? I would argue that denying marriage to gays is actually more likely to discourage straight marriage. Many young heterosexuals see gays as equals, so if they see that gays in love need not marry, they are less likely to see marriage as the normal, necessary path. The massive number of divorces only reenforce this. If you want to promote marriage, promote it for all.

[Dave01]

Excellent post! Thank you!

[Isis N]

I completely agree it!

[jilltNJ]

you hit the nail on the head. thanks