Before I get too far into this, let me announce that I am a supporter of same-sex marriage, for myriad reasons. I am pleased to see that the Vermont legislature voted same-sex marriage into law. I am uncomfortable with state courts, comprised of a handful of people, making the decision for everyone. To me these findings are activist judicial maneuvers to skirt the legislative process.
I read the Iowa decision closely, and can only infer that the justices are striking down the requirement that married couples be of the opposite sex because a gay or lesbian person does not want to marry someone of the opposite gender.
Looking past the fact that this case was in the bag for gay marriage supporters from the start. The drafter(s) of the decision start with a pollyannish description of each person who filed the initial legal action:
Like most Iowans, they are responsible, caring, and productive individuals. They maintain important jobs, or are retired, and are contributing, benevolent members of their communities... Like many Iowans, some have children and others hope to have children. Some are foster parents. Like all Iowans, they prize their liberties and live within the borders of this state with the expectation that their rights will be maintained and protected—a belief embraced by our state motto.While I cannot dispute a word, to me, this loaded introduction would be as appropriate as a criminal court judge starting a finding by saying: But, he's a nice boy from a good family.
The twelve plaintiffs comprise six same-sex couples who live in committed relationships. Each maintains a hope of getting married one day, an aspiration shared by many throughout Iowa. (page 7)
As I read it, this finding comes down to precedent based on an 1894 case, which established that a civil marriage includes the comfort and happiness of the parties to the marriage contract (page 28 of the finding). And because a gay or lesbian person could not be "comfortable and happy" marrying someone of the opposite gender, the person's civil rights are being violated.
By purposefully placing civil marriage outside the realistic reach of gay and lesbian individuals, the ban on same-sex civil marriages differentiates implicitly on the basis of sexual orientation. (page 33)Here, I presume, outside the realistic reach of gay and lesbian individuals means that they wouldn't like being married under the current Iowa definition of marriage.
To reach this conclusion, the justices placed as high a threshold on the county as possible.
...the issue presented by this lawsuit is whether the state has “exceedingly persuasive” reasons for denying civil marriage to same-sex couples, not whether state sanctioned, heterosexual marriage is constitutional. (page 51)The justices took into account what they perceived as a History of discrimination against gay and lesbian people.
The long and painful history of discrimination against gay and lesbianWhile this assessment is likely true, it smacks of a bias on the part of the justices before this case was even heard to base their decision on laws created in the other states.
persons is epitomized by the criminalization of homosexual conduct in many parts of this country until very recently. (page 37)
In sum, this history of discrimination suggests any legislative burdens placed on lesbian and gay people as a class “are more likely than others to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective.” (Pages 38/39)Again, a likely true sentiment, but it is exactly that, sentiment, opinion, conjecture, not established legal fact.
In addition, the court decided that a person's sexual orientation does not bear on his ability to contribute to society. First off, who said it did; and second what does it have to do with marriage? A brother and sister can each contribute to society, but they cannot get married.
The justices also decided that the immutability of homosexuality should be considered, meaning that because homosexuality is an accident of birth, and sexual orientation is highly resistant to change, extra consideration should be paid to this factor. Again, a brother and a sister are related through accident of birth and involved a relationship resistant to change. No one is working to hard to see that siblings can get married.
In sum, the finding by the Iowa Supreme Court that opposite-sex marriage rules are discriminatory because gay and lesbian people don't want to participate is specious at best. Further the argument that civil marriage inherently includes the comfort and happiness of the participants is simply wrong.
By this definition, simply stating that one's no longer takes comfort and happiness from the marriage should invalidate the compact instantly. But this is not the case. Dissolving a marriage is a difficult and lengthy process.
It is quite legal to marry someone who does not make you comfortable and happy: pre-arranged marriages, marriages of convenience, "shot-gun" weddings, and marriages for money are all legal marriages in this country. Love has nothing to do with civil marriage.
With similar decisions in Massachusetts and Connecticut, more states are likely to overturn "traditional" marriage laws as unconstitutional. This is unfortunate, as the logic behind these cases is flawed and wrong.
My hope is that state legislatures thoughough the country finally tackle this issue directly by introducing legislation that explicitly permits same-sex marriage, as did Vermont. To me, the fact that a legislature debated and considered the issue would give far more legitimacy to same-sex marriage in the eyes of the general public than judicial fiats.
Same-sex marriage should be legalized because it is the right thing to do, not because a couple of judges twist logic enough to satisfy themselves.
