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Actual Couples! (Your Empathy May Vary)

April 5th, 2009 2 comments

I’ve had the mixed pleasure and pain of reading many marriage equality cases over the past several years. From a host of early cases dating back to the 1970s to the more recent judicial explosion of the past decade or so, it’s quite possible that I’ve read and analyzed every available legal argument for and against allowing same-sex couples the right to marry that opposite-sex couples — be they deadbeats, felons, the chronically divorced, or the anti-iconic Britney Spears  — take for granted.

I and every other halfway-bright legal scholar can soak up these arguments, assess them, and opine exhaustively on their soundness. Particularly after reading Varnum v. Brien (the recent decision by the Iowa Supreme Court), I’m more convinced than ever that there really aren’t any sound arguments against basic equality in this context.

But this post isn’t about the law, but about facts.

If  you want to know, from the jump, how a given case is going to come out, don’t bother  getting a law degree. Instead, perform this simple exercise: Read what the court has to say about the lives of the plaintiff couples before it. Courts that decide in favor of marriage equality offer a detailed and sympathetic portrait of these couples. Courts that decide the case the other way simply omit any such description. And courts that go the civil  union route are, perhaps not suprisingly, divided on how much detail they  provide.1 Iowa follows the trend begun by the Massachusetts Supreme Judicial Court in Goodridge v. Department of Public Health, opening the discussion with detail that invites the reader into the committed lives and loves of the couples. The sheer length of the following quote from Goodridge will give you a sense of my point:

“Gloria Bailey, sixty years old, and Linda Davies, fifty-five years old, had been in a committed relationship for thirty years; the plaintiffs Maureen Brodoff, forty-nine years old, and Ellen Wade, fifty-two years old, had been in a committed  relationship for twenty years and lived with their twelve year old daughter; the plaintiffs Hillary Goodridge, forty-four years old, and Julie Goodridge, forty-three years old, had been in a committed relationship for thirteen years and lived with their five year old daughter; the plaintiffs Gary Chalmers, thirty-five years old, and Richard Linnell, thirty-seven years old, had been in a committed relationship for thirteen years and lived with their eight year old daughter and Richard’s mother; the plaintiffs Heidi Norton, thirty-six years old, and Gina Smith, thirty-six years old, had been in a committed relationship for eleven years and lived with their two sons, ages five years and one year; the plaintiffs Michael Horgan, forty-one years old, and Edward Balmelli, forty-one years old, had been in a committed relationship for seven years; and the plaintiffs David Wilson, fifty-seven years old, and Robert Compton, fifty-one years old, had been in a committed relationship for four years and had cared for David’s mother in their home after a serious illness until she died.

“The plaintiffs include business executives, lawyers, an investment banker, educators, therapists, and a computer engineer. Many are active in church, community, and school groups.”

Cases rejecting the claims, though, tend to avoid these portraits, which are at once sympathetic and, well, a little boring. If these couples’ lives are quotidian, they become less scary. But scary is good if you’re trying to hold back the tide of equality. Better not to know anything about committed same-gender couples; denying rights to abstractions is much easier.

History has taught many disturbing lessons about what can happen to people whose humanity is stripped away. But it’s not going to work this time.

  1. I’ve gone into much greater detail on this point in a law review article.
Categories: courts, Gay Rights, Marriage Equality Tags: , , , , , , , , ,

Iowa Marriage Decision: Further Thoughts and Some Perspective

April 4th, 2009 No comments

With the ramparts crumbling all around them, marriage equality opponents seem to be left with two talking points, which are really cris de coeur, the last howlings of a doomed defense. First, they fall back on their definition of marriage. Thus, the Iowa Supreme Court, in recognizing the marriages of same-sex couples, has spoken an “untruth.” Second,  they tirelessly remind us that, where people get to vote on others’ right to marry, they consistently vote against it (otherwise put, “courts are undemocratic”). The first is an assertion in search of an argument, while the second overlooks what is probably the central function of courts: the protection of minority rights against the vicissitudes of majority will, whim, or prejudice.

When this is the best you can do, you’ve lost the argument.

Of course, the Iowa court’s unanimous decision, portentous as it is, can’t be expected to bring a quick end to the debate. In fact, in the short run it may yet impel a few more states to strengthen their marriage bans by driving them into constitutional concrete. (For reasons cogently developed here, it’s somewhat unlikely that Iowa’s own constitution will be amended in this way. It certainly won’t happen soon.) Nonetheless, the opposition to marriage equality is starting to seem like a last stand. (Remember the Alamo?) Perhaps this commentator is right in thinking that a “tipping point” may just have been reached:

Moving from politics back to law: The Iowa court shoved the debate towards conclusion with its brisk and effective dismissal of the state’s arguments. I was especially struck by how the court, echoing the California Supreme Court’s decision from last year, gave no credence at all to the vague speculation that marriage equality will somehow harm the institution “in the long run.” And by now courts have seen just about enough of the  “virtual equality” promised by the civil union — Iowa would have no truck with it, and all three of the states that currently have it  (Vermont, New Jersey and New Hampshire) are likely to take the marriage equality plunge very soon.

The court’s willingness to address the religious argument directly will prove important, too. I read the point to be this: “We  respect religious opposition to same-sex marriages, but you need a properly public, secular reason to exclude people from a privileged institution.” That is a thoughtful and respectful response to citizens who sincerely oppose marriage equality for religious reasons, or because of a more general unease. Both of these sentiments were poignantly reflected in the comments of one Iowan:

“Diane Thacker’s eyes filled with tears when the ruling was read to a crowd that had gathered outside the Iowa Judicial Building.

‘Sadness,’ she whispered. ‘But I’m prayerful and hope that God’s word will stand.’ Thacker said she joined a group of gay-marriage opponents ‘because I believe in the marriage vow. I can’t see it any other way.'”

With respect to Ms. Thacker and so many like her, do we really want to deny basic equality on this kind of basis?1 Here’s a quote I’ve always liked, from a California tort case:

“No good reason compels our captivity to an indefensible orthodoxy.”

Finally, I find myself asking yet again: How much energy can opponents justify expending on this issue? In Afghanistan, a law is passed that sets back women’s rights (and arguably permits marital rape); in Iraq,2 gay men and condemned are killed for their “perversion.” I could go on and on.

Yet stopping the marriages of gays and lesbians is worth all of this time and effort? Go build a house, or something. You’re not going to stop marriage equality in any case.

  1. This, by the way, is a “rhetorical  question.”
  2. Nb., the nation we liberated from a dictator.

Analysis of Iowa Marriage Equality Decision

April 3rd, 2009 2 comments

I’ve now finished reading the just-issued decision in Varnum v. Brien, in which the Iowa Supreme Court unanimously declared that the exclusion of same-sex couples from marriage violates the state’s constitutional guarantee of equal protection under the law. My goal here is provide a brief legal analysis that will be of use to lawyers and non-lawyers alike. (You can find a crisp analysis designed for law professors here.) Subsequent posts will aim for political and social context.

First, let me give away the outcome: The court declared that only full marriage rights — not some “virtual” equivalent like the civil union — could satisfy the state’s commitment to real equality. It appears that the decision will go into effect after twenty-one days, because that’s when the time to seek a rehearing (good luck with that!) runs out. So, marriage equality is a virtual certainty in Iowa, and very soon. Now to the case:

The court began with a recognition of what was at stake. After first describing the rich texture of the plaintiffs’ lives — nurses, social workers, business managers, church organists, some with kids (including foster children) — the court recognized that the deprivation of their rights was substantial, but that something greater was also implicated:

“Yet, perhaps the ultimated disadvantage expressed in the testimony of the plaintiffs is the inability to obtain for themselves the personal and public affirmation that accompanies marriage.” Bingo!

Next,  the court undertook a sober and deliberate analysis of its role within the constitutional framework: as the protector  of minority rights. Citing language from the U.S. Supreme Court’s decision in Lawrence v. Texas (the case upholding the right of gays and lesbians to private sexual intimacy), the Iowa Supreme Court  states that the founders of both the state and federal constitutions knew that “times can blind us to certain truths” that later become evident. The court was here referring to deep truths about equality and dignity that were its responsibility to defend, even where contrary laws “may be supported by strong and deep-seated traditional beliefs and popular opinion.”

Simply stated, then, the question the court put to itself on behalf of the same-sex couples who were excluded from marriage was this: “How can a state premised on the constitutional principle of equality justify exclusion of a class of Iowans from civil marriage?”

Not every classification is unconstitutional, though. Governments make distinctions all of the time, and most of these are accepted without much dissent. Bakeries may be allowed to stay open later than bars in residential neighborhoods. Those over a certain age may be asked to take road tests every year because of population-based evidence of the greater risk this class of drivers presents. But where the classification affects certain classes of people, it will be more closely scrutinized.

The Iowa court, following recent marriage equality decisions by the California and Connecticut Supreme Courts, found that sexual orientation was the kind of classification — a so-called “suspect class” — that triggers a higher level of scrutiny than courts typically train on classifications.1

What determines whether a group is a “suspect” class, thereby requiring the state to put up a greater defense of its law? The U.S. Supreme Court has identified four factors that are used in making this determination, and the court addressed all  four.

(1) Is there a history of discrimination against the class? To ask this question in the case of gays and lesbians is practically to answer it: Yes.

(2) Is the characteristic related to the individual’s ability to contribute to society? Drawing on Iowa’s increasing recognition of the full  citizenship of gays and lesbians (protection against discrimination and violence, sex education that respects all sexual orientations)  and the decisions by other courts on marriage equality (even the losing ones), the court also found this too plain to dispute: No, it’s not relevant.

(3)  Is the characteristic immutable? The court said something like this: Probably, but it really doesn’t matter because “sexual orientation is [so] central to personal identity” that it would be destructive to ask that it be changed.

(4) Is the group  politically powerless? This has been the sticking point for most of the courts that have declined to recognize sexual orientation, because certainly the LGBT community has had heady success recently. But the court said that there had been no legislative success on marriage equality (still true, although quite likely to change very soon) and that if current political powerlessness were required, then neither women nor even African-Americans would qualify today.

Ergo, the court would use heightened scrutiny to assess the legislature’s arguments for excluding same-sex couples form marriage.2 And once that level was reached, the court’s decision followed almost  inexorably. I want to very quickly discuss the state’s rejected justifications before moving to one final point.

One interest was in maintaining traditional marriage. But this argument was circular, said the court. We know you’re trying to do this, but doing it by excluding same-sex couples has to be justified independently. And there’s “no legitimate  notion that a more inclusive definition of marriage will transform civil marriage into something less than it presently is for heterosexuals.” This last statement, dropped casually into a footnote, sweeps away the oft-stated canard that marriage equality will “in a generation or two”cause the demise, or at least weakening, of marriage.

Then there were the arguments about marriage as the optimal environment for the raising of children and for the promotion of procreation. Under a heightened scrutiny analysis, these justifications didn’t get far. Social science research is directly contrary to the first, and as to the second: Does excluding gays and lesbians from marriage lead to more procreation? Only if, denied marriage, gays and lesbians will more likely procreate “the natural way.” But this doesn’t seem likely, and anyway wasn’t seriously advanced by the state as a possibility. (Do we really want gays and lesbians having children with members of the opposite sex, by the way? Think about it.)

The court then briskly disposed of the state’s remaining assertions. Excluding same-sex couples doesn’t “promote stability in opposite-sex relationship.” And even if it does “conserve scarce resources,” that could also be achieved by excluding any group from the benefits of marriage — including red-headed couples. (Is red-headedness immutable in the era of good coloring alternatives?)

I know this is an exceedingly long post, but this is an unusual case. Indulge me for one more minute: The court then discussed the religious objection to same-sex marriage, recognizing that it is often the true, if unstated, source of opposition. The justices noted, correctly I think, that the justifications anchored in the importance of the male-female dyad are really secular recastings of religious belief: religion made over into (one version of) natural law. Here’s the quote I loved on the religious issue:

“In the final analysis, we give  respect to the  views of all  Iowans on the issue of same-sex marriage — religious or otherwise — by giving respect to our constitutional principles.”

Well, amen.

  1. The state argued that the law prohibiting same-sex marriages wasn’t even sexual orientation discrimination because gays and lesbians could  marry — someone of the opposite sex. The court gave this  “argument” the respect it deserved: very little.
  2. Lawyers will be interested to know that the court applied intermediate level scrutiny, not strict scrutiny; like the Connecticut Supreme Court in Kerrigan, the Varnum court didn’t feel the need to choose once and for all between these levels given that the challenged marriage classification ran afoul of even intermediate scrutiny.

Just Wait a Generation…or Two…or…

February 11th, 2009 No comments

The arguments against marriage equality are falling fast. No one really believes the “marriage  is about procreation” argument any more; not even Justice Scalia. Social science research effectively refutes the contention that kids will only flourish in a dual-gender household. Arguments based on religion or morality simpliciter are inadmissible. These points haven’t yet consistently led courts to require marriage equality, but the tide has recently shifted in that direction with decisions by the California and Connecticut Supreme Courts.

What’s left?

The latest (last-ditch?) attempt to stave off  equality is effectively captured in the recent oral argument in the marriage equality case before the Iowa Supreme  Court. Probably because of the attention on California and “marriage fatigue,” this case hasn’t been highly publicized, but is no less potentially important. About 22 minutes into the video, Polk County assistant attorney Roger Kuhle attempts to defend the exclusion of  same-sex couples from marriage this way: Allowing same-sex couples to marry would harm the institution of marriage. He conceded that the harm to marriage wouldn’t be felt immediately, but would take a generation – maybe two! – to have an impact. What is this harm?

Over time, he stated, people would see that the state doesn’t think that kids need to be with their biological parents, so marriage rates would  decline. Is there any evidence to support this argument? (No.  See below.) Isn’t it more likely that people would see that the state so values stable relationships that it  has allowed same-sex couples to marry? And what about the state’s strong support of adoption – and the not irrelevant fact that adoptions are closed in Iowa, meaning that the kids have no right to find their biological parents? Have the adoption laws diminished respect for marriage?

Looking at the “destruction of marriage” argument from the other side, what about the possibility that the continued exclusion of same-sex couples from marriage would signal that the state supports inequality and discrimination, and that such an institution isn’t worth entering?

In their questioning, several of the Iowa justices exposed what I’ve come to see as a fatal weakness in this “destroy the institution of marriage” position of the anti-marriage forces: they elevate highly theoretical, future harm over real, concrete injury.

Here’s the real harm, which the county (understandably)  tried to call “theoretical”: the injury to the same-sex couples, and our children, that the ban on their marriages creates every day.

In legal and, I would add, moral terms, there is no contest: Real harms count more than theoretical ones – especially when the speculative  harms are contradicted by available evidence: Same-sex relationship recognition in the Scandinavian countries actually seems to have had a positive effect on marriage rates there, according to an authoritative study of the evidence by Darren Spedale and William Eskridge.

Yet the jeremiads continue; according to the state’s attorney, the plaintiffs “say we can destroy marriage to gain equality.” As the states’ arguments have been peeled away by recent decisions and the simples imperatives of logic, justice, and policy, expect to hear this ever-more-desperate and unconvincing rhetoric.

Or worse. Head-scratching absurdities are also increasingly in vogue,  as shown by this “what’d he say?” moment from Mr. Kuhle: “There is no ban, there is no exclusion against same-sex marriage.”  He really said that, apparently recycling a definitional argument that is as discredited as all home runs hit during the 1990s.

It’s only going to get weirder.