The Iowa Supreme Court decision striking down the state's exclusion of same-sex couples from marriage is the third from a state high court to treat government discrimination against gay people generally as a serious constitutional problem (the other two are the California and Connecticut marriage cases). All three courts say that a long history of discrimination driven by prejudice should make courts suspicious anytime the government singles gay people out. While there are some differences in details, the three decisions in essence say that if the government claims that gay people are truly different (and therefore should be treated differently), it has to back the claim with proof, not speculation.
The demand for proof is a crucial. The argument that is most often used against us in marriage cases is that children do best with a mother and a father, and that marriage is set up to promote heterosexual parenting. For quite a few years now, there has been solid scientific evidence that sexual orientation has nothing to do with the ability to be a good parent. That's why we have support from all of the nation's major child welfare organizations.
But as long as the courts were willing to let discrimination stand if the justification for it was "conceivably" logical in the abstract, it was tough to win the parenting argument. But when proof is required -- as the Arkansas case on foster parenting in 2006 showed -- we are in much better shape.
These three state high court rulings are not limited to marriage; they apply to any form of government discrimination. So they should be a help in cases involving schools, jobs and most particularly, cases about adoption, foster care and parenting.
Of course, these rulings technically apply only in the three states (and the three are among the best on government policies and gay people). But I think these opinions will be influential in many other states as well.
It helps that one of the three decisions came from the California Supreme Court. As I've mentioned before, it's the most influential state court in the nation. That its reasoning is now backed by two other high courts -- both generally regarded as solid but not trailblazing -- helps greatly. The ideas begin to look mainstream.
But it is the ideas themselves -- the intellectual power of these three opinions -- that will give them real sway. All of the bad decisions that have said there is nothing particularly suspicious about government discrimination based on sexual orientation have involved either sloppy thinking or intellectual cheating (or in the case of the New York Court of Appeals, reasoning that wouldn't get a passing grade in a basic constitutional law class). The cases that have supported us haven't always been completely rigorous. These three opinions are.
Here's an example. In deciding whether to be suspicious about government discrimination against a group, the U.S. Supreme Court often looks at whether its members appear able to protect their interests through the political process (although all of these cases are based on state constitutions, most state courts use the analysis that the U.S. Supreme Court uses for the federal constitution, even if they often come to different conclusions than the U.S. Supreme Court does). Several of the bad opinions that say there is no reason to be concerned about discrimination against gay people point to state laws against sexual orientation discrimination on the job or in housing. Those laws, the bad decisions say, prove gay people are not politically powerless.
As the California court pointed out, if an absolute lack of current political influence were the measure, there'd be no reason to be concerned about government discrimination based on race, religion or sex, since all those traits receive far more comprehensive legal protection everywhere in the United States. But all U.S. courts continue to treat race, religious and sex discrimination as deeply suspicious.
The Iowa case, following California and a very powerful part of the Connecticut opinion, says that as used by the U.S. Supreme Court, the question is not whether the group has some political influence, but whether it has the capacity to bring a prompt end to discrimination against it. That, the opinions say, is why we continue to be deeply skeptical of race and sex discrimination, and should be skeptical of sexual orientation discrimination as well.
What sets the Iowa opinion apart is a passage near the end. After dealing with the arguments the state offered to justify the exclusion of same-sex couples, the Iowa Supreme Court addresses head-on what it says is the "unspoken" reason many support the exclusion: religious opposition.
The Court says that while many oppose marriage for religious reasons, religion cannot justify a law excluding gay people from marriage. "State government can have no religious views," the opinion says, "either directly or indirectly expressed through its legislation." "This proposition," the Court goes on to say, "is the essence of the separation of church and state."
That proposition ought to be obvious, but in the last 25 years, it seems almost to have disappeared from civic discourse in America. It took guts for the Iowa court to say what virtually no other government official has been willing to admit. By bluntly pointing out that religion has driven much of the debate, and reminding other courts and legislatures of their obligation not to enshrine religion in law, the Court gave a deeply practical rationale for insisting that marriage exclusions either be based on rigorous logic and evidence or be struck down. And it is that down-to-earth honesty that will, I believe, make this a deeply influential opinion.
The Iowa case was handled by Lambda Legal, which did a terrific job. We all owe them a debt of gratitude. The ACLU filed briefs in support as a friend of the court, written by John Knight in our Chicago office.
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