Monday, April 13, 2009

LTG 04-05-09 - Iowa legalizes same-sex marriage

As posted in the Omaha CityWeekly for the week of April 04-08-09, and at

No, that thunder you heard from Des Moines last week wasn’t an actual earthquake. But in terms of its’ effect on the nation, it might as well have been.

Last Wednesday, the Iowa Supreme Court ruled that Iowa’s Defense of Marriage Act (DOMA) , passed in 1998 to require marriages be only between a man and a woman, violated the Iowa Constitution’s equal protection clause. The Court went further, however, instructing in its’ opinion that all other Iowa statutes be interpreted to permit homosexual couples to enjoy the same rights to marry as heterosexual couples.


Before we get too deep into the ramifications of the case, it’s important to understand the rationale behind the Court’s decision. Opponents of gay marriage have already gone into overdrive in branding the decision as “evil,” “illogical,” and (come on, you know it’s coming) “activist.”

The equal protection clause of the United States Constitution, as well as state constitutions, basically means that you have to treat people in similar situations the same. When a government wants to have a different set of rules for one group of people and another rule for a different group, there’s going to be an equal protection problem.

The first argument raised was that homosexual and heterosexual couples are not similarly situated, because homosexual couples cannot “procreate naturally.” The purpose of marriage, as argued in an attempt to maintain DOMA, is procreation, and therefore the government can rationally distinguish between gay and straight couples.

The Iowa Supreme Court, in far more polite and legal terms, called bull on that argument. The Court found that the purpose of marriage in law is to create stable, loving relationships upon which society can be based. With that as a purpose for marriage, the Court found gay and straight couples to be similarly situated.

That’s a big deal for the final outcome. In determining whether a law is constitutional, the Court has to decide first what standard to apply. The lowest standard, called a “rational basis” standard, allows a statute to be constitutional so long as it bears a rational relationship to a legitimate government interest. That standard applies when the persons being affected by the law are not persons who need additional protection in equal protection cases. The highest level, called “strict scrutiny,” means that a statute is constitutional only when the statute is narrowly tailored to satisfy a compelling government interest. This standard applies when the persons being affected need the most protection.

There is also an “intermediate scrutiny” for classes of people that fall between the two extremes. That level of scrutiny requires a statute to be substantially related to an important governmental interest. There’s a four-part test to determine which level of scrutiny is appropriate. I would go into the details with you, but apparently the CityWeekly actually needs some space to print advertisements to keep this fine publication free of charge.

So, you’ll have to trust your Law-Talking Guy when I tell you that the Court applied that test and determined that intermediate scrutiny was the most appropriate test to apply. And the Court, finding the “can’t procreate naturally” argument could not survive intermediate scrutiny, struck DOMA down as violating the equal protection clause.

On that small part of the case, I have a personal stake. I’m straight, but I also can’t have children of my own due to a childhood illness. And I get very angry when someone tells me that my marriage to Mrs. Law-Talking Guy is without a legitimate purpose because the chemotherapy that saved my life robbed me of my ability to have children of my own. I get even angrier when I hear that argument used to cover up someone’s desire to enshrine a particular religious interpretation into law.

Because, let’s not kid ourselves. The opposition to gay marriage is fueled almost entirely by a socially-conservative interpretation of the Bible. Conservative religious groups from across the country filed briefs in support of the DOMA ban. And you can be sure that, much like in California during the Proposition 8 debate, conservative religious money and operatives will descend on Iowa in an attempt to overturn the Court’s decision.

The Court was very clear in making the distinction between a religious marriage and a civil marriage. The Court was in no way requiring any church to change its’ doctrines or beliefs to accept gay marriages. But the Court did rule that state law – the law that is supposed to apply to everyone equally – could not deny gay couples the same benefits that straight couples receive.

Of course, there has been much weeping and gnashing of teeth as a result of this decision. Prepare for a chorus of discussion on how the fabric of society is being assaulted, children are in peril, and marriage is doomed.

Perhaps I’m just dense, but I’m struggling to see how my marriage to Mrs. Law-Talking Guy is threatened in any way by a gay couple getting married – even though gay-marriage opponents apparently think my marriage isn’t all that legitimate anyway. And let’s think for a minute about the whole “sanctity of marriage” thing.

One of the most popular shows – meaning the one that straight people watch more than about any other – on television now is ABC’s “The Bachelor.” We’re all obsessed with a show where one guy gets to canoodle on camera with 25 gorgeous women in an attempt to “find the love of his life” and have a fairy-tale wedding. I struggle to see how that doesn’t denigrate the sanctity of marriage more than a committed gay couple.

I do have some concerns about the edges of the legal analysis for cases of bigamy and other types of relationships. But ultimately, I believe the Iowa Supreme Court is on the right side of history. A generation ago, we had a very similar debate about interracial marriages. Many of the same arguments against gay marriages were used against interracial marriages. Most of us now couldn’t imagine a world where it would be illegal to marry someone of a different race. I suspect a generation from now we will look back on gay marriage prohibition in the same light.

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