The Iowa Supreme Court Appeals to Iowa's Constitution and Iowan Values to Strike Down State Ban on Same-Sex Marriage - and Renders the Practice Once Again Legal In Three (Make that Four) States
By JOANNA L. GROSSMAN AND LINDA C. MCCLAIN
|Thursday, April 9, 2009|
Last October, Connecticut became the third state to authorize same-sex marriage, through the ruling of its high court in Kerrigan v. Commissioner of Public Health. Massachusetts and California had preceded Connecticut with similar rulings that paved the way for same-sex couples to marry on exactly the same terms as opposite-sex couples.
But the three-state endorsement of same-sex marriage proved only temporary, as California re-banned same-sex marriage in November via Proposition 8, a voter referendum amending the California Constitution to prohibit same-sex marriage within the state. Though Prop 8 is currently under challenge, it is likely to be upheld by the California Supreme Court. If so, that ruling will mean same-sex marriage is dead in California for at least the near future, until a pro-same-sex-marriage proposition can again be put on the ballot.
Iowa has now added to the number of states embracing marriage equality. This once again made the count three, a count that lasted only five days because the Vermont legislature – even as this column was being written – passed a marriage equality law, overriding the state governor's prior veto. (Joanna Grossman will consider the Vermont bill in more detail in a later column.) The state's highest court issued a unanimous ruling last week in which it struck down a 1998 state law banning same-sex marriage. The court, in Varnum v. Brien, concluded that the ban was a form of unconstitutional sexual-orientation discrimination.
In this column, we will analyze the court's opinion, paying particular attention to its emphasis on what it means to be an "Iowan" and its treatment of religious justifications for traditional definitions of marriage – the "unspoken" reasons for opposing redefining marriage.
Varnum v. Brien: The Court's Same-Sex Marriage Ruling and Its Equal Protection Analysis
Amid a flurry of similar enactments, the Iowa legislature amended the Iowa Code's definition of marriage in 1998 to make clear that marriage was restricted to unions between "a male and a female." And, as happened in many other states, a number of same-sex couples sought marriage licenses anyway, and filed suit when they were refused, claiming that the ban on same-sex marriage violates the Iowa constitution's guarantees of liberty and equality.
The trial judge granted summary judgment for the plaintiffs on equal protection and due process grounds, a ruling that was stayed pending the future ruling by the state's highest court, though not before one couple apparently managed to squeeze a marriage license out of the county recorder.
On appeal, the Iowa Supreme Court affirmed the trial court's ruling, but based its own ruling solely on grounds of equal protection. As we discuss in more detail below, the Iowa Supreme Court made clear from the outset that this was a case about Iowa's law and about "Iowans." Like the U.S. Constitution, the Iowa constitution guarantees its people the equal protection of the laws. (This type of clause, at the state or federal level, is the source of most constitutional anti-discrimination rights.) The Iowa clause has different wording than the federal one, but the Court stressed that, in effect, the clauses are identical and that the U.S. Supreme Court's framework is a useful starting point for the Iowa analysis. Nonetheless, Iowa, like other states, has the power to apply an independent analysis and interpret its own constitution more expansively than the federal one. Exercising this "jealously guarded right" proved critical to the Iowa court's ruling.
The Iowa court made clear that the Iowa constitution's equal protection clause must be construed broadly, as well as consistently with modern sensibilities. The court wrote of its responsibility "to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time." As evidence that Iowa's high court has been "at the forefront in recognizing individuals' civil rights," the court noted that it had been ahead of the U.S. Supreme Court in construing its equal protection clause to condemn slavery, racial segregation, and women's exclusion from law practice. It viewed the marriage challenge before it as an equally important "landmark" case about defining equal protection.
The key to equal protection analysis under the Iowa (or the federal) constitution is the level of judicial scrutiny. Most legislative classifications are subjected only to "rational basis" review, which is a deferential standard likely to result in a statute's being upheld. So-called "strict scrutiny" is applied to classifications based on race or alienage and is likely to lead to the opposite result – the statute's being struck down as unconstitutional. Intermediate scrutiny is applied to gender-based classifications, which are also likely to be struck down, though not as uniformly as race-based classifications.
A significant portion of the Varnum opinion is devoted to determining whether sexual- orientation classifications – of which the same-sex marriage ban was deemed one – deserve heightened scrutiny. The court ultimately held that such classifications are entitled to at least an intermediate level of scrutiny based on four factors: (1) the history of invidious discrimination suffered by gays and lesbians; (2) the relationship between the excluded class's characteristics and their ability to contribute to society; (3) the immutability of the characteristic; and (4) the relative political powerlessness of gays and lesbians. The court found all four factors to militate in favor of heightened scrutiny. Most notably, it acknowledged the lack of consensus on the "immutability" of sexual orientation – that is, on the question whether it has a biological basis or not – but noted that it was, at the very least, "highly resistant to change." (As detailed in previous columns, the California and Connecticut courts applied a substantially similar test to reach the same conclusion about the appropriate standard of review for sexual-orientation classifications.)
The Three Governmental Objectives the State Asserted in Support of the Same-Sex Marriage Ban – and Why the Iowa Supreme Court Rejected Them
To withstand intermediate scrutiny, a legislative classification must be "substantially related to an important governmental objective." The state proffered three interests that it said were served by the law: preserving "traditional" marriage; promoting "optimal procreation," and serving financial considerations.
The court rightly rejected the first argument, noting that the classification itself cannot be the governmental interest. In other words, the state cannot justify excluding same-sex couples from marriage by merely expressing its desire to restrict marriage only to those traditionally allowed to celebrate it. The court also rejected the third reason – to conserve state resources – as insufficient to justify a classification that receives heightened scrutiny. Saving money is simply not a good enough reason, the court concluded, to justify discrimination.
The court gave deeper consideration to the second reason – the state's desire to promote optimal environments for procreation and childrearing. But, ultimately, it was unconvinced that a ban on same-sex marriage is closely related to such an objective. Though the state offered evidence that dual-gender parenting is "optimal," the court dismissed the experts' opinions as "largely unsupported by reliable scientific studies." By contrast, it stated that plaintiffs "presented an abundance of evidence and research," confirmed by the court's] "independent research," for the proposition that "the interests of children are served equally by same-sex parents and opposite-sex parents." The court also found the state's attempt to further "optimal" procreation through marriage laws to be both under- and over-inclusive: Demonstrably bad would-be heterosexual parents are permitted to marry, while some same-sex couples with proven parenting skills are excluded. The court concluded that this sloppy means-end fit raises the specter of prejudice against the excluded group and is, under intermediate scrutiny, fatal.
The court thus concluded, in the final analysis, that the law's exclusion of same-sex couples from marriage was unconstitutional discrimination on the basis of sexual orientation. The state Supreme Court is the final arbiter of state constitutional questions, and the ruling thus cannot be appealed. Moreover, by contrast to California's process, amendments to Iowa's constitution cannot be initiated by voters, but must, instead, be first approved by the legislature in two consecutive sessions. Thus, once same-sex marriages begin in Iowa in a few weeks (when the ruling takes effect), they will continue into at least the near future – unless and until the legislature were to take contrary action, via a proposed amendment, in two consecutive sessions as required, and its proposed amendment were to be approved.
Iowa's Constitution and Iowa's Values: How This Was, Indeed, a Case about Iowans
One common reaction to the Iowa court's ruling was surprise that a Midwestern state's high court had issued such a ruling. Until the Iowa court's decision, the map of the United States revealed a clustering on the East and West coasts of states permitting same-sex couples either to marry or to enter into civil unions or domestic partnership. Many state DOMAs arose out of a fear that a more liberal state's values might be forced upon a more traditional state if a "red" state was forced to recognize a "blue" state's same-sex marriage. A striking feature of the Iowa court's opinion is thus its grounding in Iowan constitutional values, and its characterization of the case as one about the equal status of a class of Iowans.
As other same-sex marriage opinions have, the Iowa court's opinion begins with a portrait of the plaintiffs who are challenging the state marriage laws, depicting them as "responsible, caring, and productive" members of communities, a portrait fleshed out later with details about the six couples. But the Iowa court also stresses the status of the twelve individuals as Iowans, emphasizing what they have in common with other Iowans, including their aspirations for marriage and family. The court states: "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." That motto is: "Our liberties we prize, and our rights we will maintain."
The plaintiffs are different "in one way," the court explained– "they are sexually and romantically attracted to members of their sex" and, because of the 1998 law, "unlike opposite-sex couples in Iowa," they may not marry. The court characterizes the couples' decision to turn to the court to challenge this law as consistent with what "other Iowans have done in the past" when a law has denied them "a status enjoyed by other Iowans." The court went on to describe constitutional question posed by this "particular class of Iowans" as: "How can a state premised on the constitutional principle of equal protection justify exclusion of a class of Iowans from civil marriage?"
The court answers that it cannot justify the exclusion, rooting its analysis in the equal protection framework and the heightened scrutiny that we described above. Here, too, the opinion stresses the court's own proper role – in Iowa's constitutional scheme of separation of powers – of zealously protecting individual rights. It also describes the court's often pioneering path as "navigated with the compass of equality firmly in hand."
Iowan family values are also relevant to the court's conclusion. Iowa's marriage laws serve the purpose of defining "the fundamental relational rights and responsibilities of persons in organized society." They recognize a status; doing so benefits the individuals who marry and also benefits society. With respect to these purposes of marriage, the court concludes, the gay and lesbian Iowans seeking access to this status are "similarly situated" to heterosexual Iowans in "every important respect, but for their sexual orientation." Here, the court's conclusion that the difference in their sexual orientation does not warrant different treatment is in striking contrast to that of some states' high courts (those of New York and Washington, for example) that have found that marriage is uniquely concerned with regulating heterosexuality and the "natural" consequences of heterosexual sex.
The court fortified its conclusion that treating plaintiffs, as a class, differently from other Iowans offends Iowa's constitutional values by examining the many Iowan laws that now protect against discrimination on the basis of sexual orientation. These laws, the court said, signal a repudiation of different treatment based on prejudice, antipathy, and stereotyping.
Speaking the Unspoken: The Court Looks at Religion as the Real But Uncited Reason for Denying Marriage Equality
After rejecting the arguments the County did make, the Iowa court also reached out to consider one it did not rely on: "Religious opposition to same-sex marriage." The court opined that making more explicit the "religious undercurrent propelling the same-sex marriage debate" helped to explain why it had rejected the state's argument that dual-gender parenting warrants restricting marriage only to opposite-sex couples. (The lower court, for example, disqualified some of the County's proffered experts because their expertise was in religion, not in empirical research or relevant social science.) Although other high courts have stressed the distinction between civil and religious marriage, and reassured the readers of their opinions that redefining the former does not reach out to redefine the latter, the Iowa court goes further: It hypothesizes that much of society's rejection of redefining marriage to include same-sex couples rests, "whether expressly or impliedly," on "sincere, deeply ingrained – even fundamental – religious belief."
But the court goes on to note that amicus briefs reveal that "other equally sincere groups and people" also have strongly-held religious views favoring opening up marriage to same-sex couples. Because of Iowa's constitutional mandate barring the establishment of religion, the court notes that it is not surprising these religious beliefs do not feature as express rationales for or against Iowa's marriage law. Rather, the court's task, it reiterates, is not to resolve theological debate, but to apply Iowa's equal protection standards to assess whether one class of persons may be excluded from civil marriage. The court concludes that "by giving respect to our constitutional principles," it "gives respect to the views of all Iowans on the issue of same-sex marriage." Religious citizens and denominations may continue to adhere to their respective views of religious marriage, restricting their private ceremonies to whichever couples they choose; but now civil marriage will "take on a new meaning that reflects a more complete understanding of equal protection of the law." This express attention to why religious views of marriage should not control defining civil marriage is a long overdue step, and the Iowa Supreme Court should thus be lauded for including this discussion in its opinion. This two-step process of first distinguishing civil from religious marriage and then clarifying that providing equal access to civil marriage for same-sex couples is consistent with respecting religious views of marriage seems to be part of the recent actions of the Vermont legislature to enact a marriage equality law.
Another Step Toward Greater Recognition of Same-Sex Marriage In a Nation Where All But a Few States Still Forbid It
Granted, the legalization of same-sex marriage in Iowa does not do much quantitatively to alter the national landscape, which is still overwhelmingly hostile to any formal recognition for same-sex couples' relationships, and most acutely hostile to same-sex marriage itself. Over half the states have amended their constitutions to ban same-sex marriage, and most of the remaining states have passed laws in opposition to it.
But perhaps the Varnum court's grounding of its ruling in Iowan values – and the mere fact that this decision came from a court in Iowa -- will minimize the sense that same-sex marriage is just a phenomenon limited to fringe states on the coasts. The court's recognition of a right to same-sex marriage in the heartland reminds us that this is not just a political issue, but also an issue of equality, liberty, and family life that is faced by same-sex couples throughout the United States.
Linda McClain, who has been a prior guest columnist for FindLaw, is a professor of law and Paul M. Siskind Research Scholar at Boston University. She discusses same-sex marriage and other family law issues in The Place of Families: Fostering Capacity, Equality, and Responsibility (Harvard University Press, 2006).