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.
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. 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.”