August 31, 2007

This Should Make the Iowa Primaries Fun

by PG

Judge Robert B. Hanson of the 5C Judicial District of Iowa (Des Moines/ Polk County) decided on Thursday that otherwise-qualified couples cannot be denied marriage licenses based on their being a same-sex couple, thus striking down Iowa's 1998 Defense of Marriage Act as a violation of the state's constitution.

Mitt Romney immediately made his conservative bona fides: "The ruling in Iowa today is another example of an activist court and unelected judges trying to redefine marriage and disregard the will of the people as expressed through Iowa's Defense of Marriage Act. This once again highlights the need for a Federal Marriage Amendment to protect the traditional definition of marriage as between one man and one woman." (Technically, if we're worried about the specific will of the people of Iowa for their own state, instead of trying to impose that will on other states, this decision actually highlights the need to amend their state constitution, not the federal constitution. But Romney's not the Republican who emphasizes federalism, and Thompson made no comment on the decision, though his site did say that he'll be announcing his run officially next week.)

Hanson is relatively young (41), and Iowa state judges are appointed initially, but must stand for retention in a general election thereafter. Hanson is on his first six-year term, and its ending date is comfortably far off -- December 31, 2010.

Varnum v. Brien has lots of interesting things in it. Starting on page 5 of the decision, Hanson considers whether the experts that the state offered to testify to the need for excluding same-sex couples from marriage actually met the standards for being useful experts, and dismissed those whose testimony was based on "moral intuition," a vague interplay of fields none of which the expert held a degree in, and "what people say about religion," rather than empirical research or scientific observation. However, the state's experts who were professionals in medicine, mental health or child development were deemed relevant. Plaintiffs' experts' testimony that was mostly personal anecdotes about how much it sucks to be gay in Iowa also were excluded, but experts who could testify as to the actual costs born by couples because they were not permitted to marry were relevant.

Page 13 has a rather interesting assertion by the state, "Gay couples choose to bring children into the relationship by way of adoption or other means." It's part of an argument that other states have made: heteros have careless casual sex that leads to unintended pregnancies, and therefore should be strongly encouraged to get married and stabilize the relationship into which the children would be born. Although "[t]he Court does not perceive any substantial disagreement between the parties on this proposition" about gay couples' choosing, I am not sure that it fully captures the reality in which we're currently operating.

Due to the former nearly universal bias against homosexual relationships, many gay people tried to convince themselves and others that they were straight, and got married and procreated within a heterosexual relationship. After the heterosexual relationship ended, the children remained and often are being raised within a new homosexual relationship. Even in a post-prejudice era, bisexuals who had children in an opposite-sex relationship but want to raise them with a new same-sex partner would need marriage protections. While one could say that the new relationship was chosen, the kids already existed, and I would be surprised if any empirical research showed better outcomes for single-parented kids than same-sex-couple-parented ones. Therefore the same state concern for heterosexuals' procreation holds for homosexuals' relationships; once the kid is there, what is the state going to do to encourage a stable, well-resourced environment in which she is raised?

That I kind of snickered at point one on page 16 as a "material fact as to which there is no genuine issue" proves that I am no romantic. Though I guess that was already certain when my response to Justice Kennedy's Lawrence opinion, "When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," was Has Kennedy never heard of a one-night stand? Still, "Plaintiffs each have chosen and consented to marry the one unique person who is irreplaceable to them and with whom they have formed a deeply intimate bond and share daily family life, but have been denied this right by the government" could be just as well said by a couple fighting for their right to adult incest.

Whether the plaintiffs had found their one unique irreplaceable person probably wasn't a point that the state sensibly could contest, but point 30 on page 21 may have been: "Iowa Code Sec. 595.2(1) and (20) were passed in response to marriage litigation brought by same-sex couples in Hawaii, in order to ensure that lesbian and gay people are treated unequally to everyone else in Iowa with respect to their relationships." Admittedly, if "Only a marriage between a male and a female is valid" was stuck into the Code with a lengthy legislative record about wanting to screw over lesbian and gay people, there's not much ground on which to fight point 30. But otherwise, had I been the state's attorney, I would have made some effort to specify that the legislation was passed not to treat homosexuals unequally, but only to ensure the traditional status of male-female marriage. Once you concede animus, you have an uphill battle. New York State lucked out in this respect, because its Domestic Relations Law, with its specifications about husband and wife, bride and groom, predates any glimmer in the legislature's mind about homosexuals' wanting to get married.

The litany of marriage benefits offered nothing new.

Point 88 would have gotten even more aggressive challenge from me as the state's attorney. "Some Plaintiffs have used, are using or anticipate using methods commonly used by heterosexual parents to conceive, foster or adopt children. As with heterosexuals engaging in unprotected sexual intercourse, using these methods is known to bring children into a family, but the children may arrive at unplanned times." Inasmuch as this is meant to reference back to the state's assertion on page 13, it is misleading. While heterosexual couples who want to have a baby engage in unprotected sex as the first method of conceiving it (if six months of daily unprotected sex doesn't result in pregnancy, it's time for the fertility clinic), that's quite different from the heterosexuals who are having unprotected sex but don't want to have a baby. The latter group is supposed to be getting shephered into creating a stable child-rearing environment through the social and legal bonds of marriage. That the pregnancy may occur or baby from China arrive at a time that cannot be easily predicted in advance, is quite different from the pregnancy that wasn't wanted in the first place.

This post may be coming across as negative toward Hanson's opinion because I'm commenting only on what I find objectionable or otherwise noteworthy; for all the passages where I'm just nodding my head along in agreement, it isn't manifested here. I approve of all the stuff about homosexuality, children and the history of how marriage has changed -- I just wish the opinion had rested solely on that rather than going into the history of discrimination against gay people. The statement about the correlation between hostility toward people with AIDS and hostility toward homosexuals strikes me as particularly unnecessary. In other words, I like the equal protection argument about the state constitution's forbidding sex discrimination and the rational basis argument*; I don't like the due process argument.

Due process is troublesome because there is no precedent, neither federally nor in Iowa, that there is a fundamental right to marriage with someone of the same sex. While a county judge has the same obligation to uphold the state constitution as any other judge, if there is a complete absence of recognition to a right of same-sex marriage, then claiming it must be permitted on due process grounds is shaky. Due process rests, to some extent, on showing that the right in question is a fundamental one. If the right to a same-sex marriage is fundamental, it nonetheless has been denied historically by every state in the Union as well as by the UK. In contrast, several states (Connecticut, New Hampshire, New York, New Jersey, Vermont, Wisconsin, Minnesota, Alaska and Hawaii) and DC never made miscegenation illegal, and it was not illegal in the UK at the time of the Founding.

In contrast, equal protection does not require that two groups have been treated equally historically; it requires that people be treated equally today. If Betty cannot marry Sue, but Joe can, and the only reason he can marry Sue where Betty cannot is that he is a man and Betty is a woman, then Betty has been discriminated against on the basis of sex, which violates her constitutional right to the equal protection of the laws. This is similar to how a black man could have married the black woman Mildred Loving, but the white man who wanted to marry her could not. To discriminate on the basis of race, the state needs a compelling interest. To discriminate on the basis of sex, the state needs a "exceedingly persuasive justification." While the state's justifications for excluding same-sex relationships from marriage almonst surely will be found on appeal to satisfy the rational basis test, I think whether a judge will find them "exceedingly persuasive" is less certain.

The rational basis section of the analysis includes the quote from Scalia's Lawrence dissent that was the only thing I liked in Chief Judge Kaye's otherwise wet dissent in Hernandez: "'preserving the traditional institution of marriage' is just a kinder way of describing the State's moral disapproval of same-sex couples."

* So help me God, any commenter to this post who cites Williamson v. Lee Optical for the rational basis test is getting her comment deleted. "The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought." Williamson does not stand for the proposition that the rational basis test for state laws regulatory of non-commercial rights and liberties is the same as the one the Court applied for a law about who can fit new lenses into eyeglass frames.

August 31, 2007 01:20 AM | TrackBack
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