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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.

A Public De-Friending

March 23rd, 2009 1 comment

As someone new to Facebook and not entirely convinced by it (although there’s something strangely compelling about it), I only recently learned about the phenomenon of “de-friending.” It occurred to me that it would take a great deal for me to de-friend someone. I mean, I wouldn’t do it just because I realized that I barely knew the person OR because the person wrote on my wall every 17 seconds OR EVEN that the person had — and shared – political views that I regard as anathema. So what would constitute grounds for de-friending?

Last night, a link came to WordinEdgewise from a woman who had rather publicly defriended a guy for transgressions that she has very graciously allowed me to repeat here. I don’t know any details beyond what this woman (Elizabeth Eccleston) discusses in her open letter to this guy. But I’m presenting the letter in its entirety to give you the full sense of why she did what she did:

“Dear Jonathon Stucker,
Congratulations on your upcoming nuptials! I noticed it through facebook – enough of my friends had joined the group that you created to announce your engagement (how modern!) that it showed up on the sidebar of my homepage. Really, I couldn’t be happier for you. I have to admit, though – I discovered your announcement about a week or so ago, and I’m only bringing it up now because I’ve been reading [the WordinEdgewise post about the Prop 8 oral arguments], and it reminded me of you.

“You know, I haven’t thought about you too much since I felt the need to defriend you after you repeatedly posted your notes supporting Proposition 8. Of course, merely voicing your differing opinion wouldn’t have been enough for me to remove you from an online networking site; it was your posts with offensive analogies to fishing, propaganda regarding the dangers gay marriage posed on your (and everyone else’s, no matter what they were) religious beliefs, and, best of all, it was the fact that you deleted any comment that pointed out a flaw in your argument, or even merely stated a differing opinion (but, of course, you kept all of the comments of blind support). Even after all this, however, it was the fact that you began to re-post your notes – not even bothering to write new ones! – just so they’d stay on every one’s facebook front page that led me to defriending you, my one-time middle school friend.

“But, you! Congratulations, really. I love weddings, and I love marriages. When two people decide to commit to loving each other and being there for each other for the rest of their lives, it is a truly beautiful thing. I’m looking forward to eventually getting married, when I find the right person. And, just like you, I won’t have any trouble doing so. Just like you, I’ll be able to make the decision with my fiance, announce it to my family and friends, and have everybody be happy for us. Even though I won’t be getting married in a church, as I’m sure you will, we’ll both go down to the County Clerk’s office beforehand, and we’ll get a license to marry. We’ll both complete that step, even though we have very different religious beliefs. See how that works? But my best friends won’t be able to do that, if you, and people like you, get your way. It’s amazing how your religious beliefs, of which you are so understandably protective, dictated that my friends won’t be able to get married, even though none of us share your religion. Weird, huh?

“And, wow. As you stated in your facebook group, you’ve only been dating your fiancee for a month before you proposed. That’s really quick! But, hey – when you know, you know, right? This summer, some family friends of mine got married. They had been together for over twenty years. Despite the fact that they have two children together, they had to wait that long because our state wouldn’t legally recognize their commitment to each other. They are really beautiful people, too – one of them works with child protective services, making sure children are safe and properly cared for. That’s how they adopted their children, too – both girls had severe childhood trauma and struggled with bipolar disorder at a young age. Through my friends’ love and commitment to their children and to each other, both girls are now healthy, stable and going through normal teenage pangs. And now the California Supreme Court is arguing whether or not their marriage should remain valid. One month, huh? Terrific. Well done. I’m so happy that you’ll have no roadblocks or third parties arguing against the validity of your love and readiness for a lifelong commitment to one another, because, really, nobody should have to go through that.

“I hope you enjoy your privilege, Jon. I hope your marriage is long-lasting and fulfilling. I hope you appreciate the benefits that your legally-recognized opposite-sex marriage gives you, including status as next-of-kin for hospital visits and medical decisions if you or your wife is too ill to be competent; automatic inheritance in the absence of a will; bereavement or sick leave to care for your wife or child; and judicial protections and evidentiary immunity, among many others. I hope you never have to use any of those benefits, but I hope you appreciate your legal backing if anything ever happens to you or your family. I hope the fact that you, as you claimed, were afraid of a florist getting sued for refusing to take on gay clients for their wedding because it so offended his or her religious beliefs, makes it worth taking away those benefits from thousands and thousands of loving couples, who want nothing more than to be able to do what you are lucky enough to be doing right now: marry the one that they love.

“Congratulations on your upcoming marriage, Jon. I hope you feel more protected than you would have had my best friends had the same rights that you do, had they been considered equal citizens in the eyes of the law. I hope it is worth it.

“And I hope your marriage isn’t so delicate that it will be damaged once progress is no longer halted, when we DO win, and we have equal rights for all. Kisses!!
Love, your wacky, liberal, feminist, homo-loving friend from middle school,
Elizabeth Eccleston”

————

Ker-skewer!

OK, this guy seems like a bit of a straw man. But his views (if not his objectionable conduct on Facebook) are fairly representative.

Thanks, Elizabeth! More straight allies like this, please!

The Worst Op-Ed, Ever

February 22nd, 2009 No comments

OK, probably not the worst, but pretty bad: This piece, which appeared in the Sunday (2/22) NY Times. Two well-respected think-tankers — one a marriage equality advocate and one an opponent — called for a compromise that would take some of the heat out of the marriage controversy.  I’m all for reconciliation, but “A Reconciliation on Gay Marriage” is fairly brimming with bad ideas.

Just when I was about to give this issue a break.

The authors suggest the creation of a federal civil union, that would recognize same-sex marriages or civil unions to the extent that such unions were recognized by particular states, but only if those same states allowed,  in their words, “robust religious-conscience exceptions, which provide[d] that religious organizations need not recognize same-sex unions against their will. The federal government would also enact religious-conscience protections of its own.” Their proposal is both procedurally and substantively nutty.

Before I get there, a preliminary issue needs explaining. It’s odd that the federal government should be creating “federal” marriages or “civil” anything. Until the evil and desperately named “Defense of Marriage Act” (“DOMA”) defining marriage for federal purposes as the union of a man and a woman, Congress pretty much left the states alone to define marriage as they wished. Then federal benefits depended on whether you were married according to your particular state’s law. So, why not just repeal DOMA?

It’s not that simple. DOMA has inadvertently provided cover for states wanting to have their equality cake as long as gay couples don’t get to eat it, too: Since federal benefits are tied to marriage, the “civil union” (or domestic partnership) that several states have created don’t get you any kind of federal benefits, and wouldn’t — even if DOMA were repealed. Civil unions aren’t marriage, DOMA or no DOMA. But the federal goodies constitute most of the economic benefits of marriage.

Thus, the authors of this piece, David Blankenhorn and Jonathan Rauch, are right to suggest that something like a federal civil union would be needed to recognize the couples for purposes of granting benefits to couples in “civil union” states. (Couples in states recognizing full marriage equality don’t need this new “federal civil union”contraption.) But then their proposal goes seriously awry.

Procedurally, their measure is seriously underthought, even though they get paid to do nothing but think. What, exactly, do they mean by “robust protections”for religious organzations, and what would constitute “recognizing them”? And if the states are to be required to enact such provisions in order for their civil unions to “count,” why is a federal overlay needed? (Such a law, to the extent it conflicted with state laws, would supersede them in any event.) When I read this, I thought: I’ll bet neither of these guys, accomplished as they both are, has had any legal training. Turns out, I was right.

Perhaps these procedural issues could be dealt with if the underlying substance of their proposed protection for religious groups was sound. But it is not. As the authors recognize, the issue is not whether a church would have to perform a same-sex union if doing so would violate their tenets; everyone agrees that the First Amendment  shields churches from having to do so. Gay couples, please — pick another church, already.

The tougher questions arise once we move beyond the “sanctuary” of the church and its right to protection for belief there. Let’s discuss the two examples they use, where I strongly disagree with their conclusions. First: “What if a church auxiliary or charity is told it must grant spousal benefits to a secretary who marries her same-sex partner….?” Blankenhorn and Rauch believe that the organization’s decision not to provide such benefits should be protected.

The first issue is whether the work of the “auxiliary or charity” is so closely tied to the church’s core beliefs that it could, for example, exclude all non-church members from employment.  If so, then this issue would  not arise in the first place. But if the church can be forced to hire “non-believers” under pain of liability under state anti-discrimination laws, then why should sexual orientation be singled out for exemption? And, anyway: If the “auxiliary” (whatever that means)  is going to hire this woman in the first place, am I the only one who sees the cruelty in denying “spousal benefits” — which really means “health care benefits” — to her wife? Please tell me which church this is, so I can avoid even driving past it. (There’s another topic here about tying benefits to marriage in the first place, but this isn’t the time….)

The next example: “What if a faith-based nonprofit is told it will lose its tax-exempt status if it refuses to allow a same-sex wedding on its property”? Well, is the “non-profit” charging for the use of the property? If so, it’s squarely in the realm of the “secular” for this purpose and shouldn’t be allowed to discriminate any more than should a landlord whose “morals” counsel against renting to same-sex couples.

The provenance of the problem comes from the authors’ starting “agreement” that “many Americans of faith and many religious organizations have strong objections to same-sex unions.” Well, so do many “Americans (not) of faith.” We don’t protect the latter, and we shouldn’t protect the former if they wander out of the properly protected enclave of religious expression that the constitution clearly privileges.

To realize how crazy this is, substitute “race” for “sexual orientation” and see how the results play out: A church doesn’t believe in interracial marriage. This example isn’t from the year 1650; Bob Jones University didn’t allow interracial dating — never mind marriage — until 2000. And it tried to justify its position even in 1999, as seen in this letter:

“Bob Jones University [has] a rule prohibiting interracial dating among its students. God has separated people for His own purpose. He has made people different from one another and intends for those differences to remain.  Bob Jones University is opposed to intermarriage of the races because it breaks down the barriers God has established. It mixes that which God separated and intends to keep separate.”

So, what if Bob Jones hires a white secretary who then marries a black man. Should the church be able to deny benefits that are otherwise tied to marriage? To fire the secretary for her transgression of church law? I didn’t think so.

In fact, Bob Jones had long since lost its tax-exempt status for just the kind of racial policies that Blankenhorn and Rauch now defend (at least as a matter of right) in the case of sexual orientation.

La plus ca change, or something like that…

They Might be Lesbians

January 29th, 2009 No comments

Earlier this week, a California appellate court sided with a private Lutheran school in its decision to expel two of its female students for…what, exactly?

According to the court, the school had the right to expel them based on the belief that the two 16-year-olds had “a bond of intimacy” that was “characteristic of a lesbian relationship.” The details of the students’ relationship are less than clear: there was some dispute about where their friendship stood on the BFF-to-passionate-sexual-intimacy continuum. Apart from whatever conduct the girls engaged in (or didn’t), there was also some question about their self-definition. On their MySpace pages –when will they learn? — one student described herself as “bisexual”; the other, as “not sure.” The websites also showed the girls hugging, conduct that is of course unexceptionable absent the context.  

Whether based on their conduct or their status, and despite the lack of proof, the school’s decision was upheld for the simple reason that the state’s antidiscrimination statute was found not to apply to a private, religious school. Thus, the kids’ claim of sex discrimination, alleging that boys who got into trouble were generally treated less harshly, didn’t fly, either. If the statute doesn’t apply, that’s pretty much the end of it.

After reading the case (but not the cases the court discussed in reaching its decision), it seemed to me reasonable for the court to construe existing precedent to find that the school was not a “business”; and the law doesn’t apply to private, non-commercial organizations.  Whether that precedent is correct is another issue, though.  In some sense, such a school is a business — it charges money, and entities aren’t excluded from the statute’s coverage simply because of their non-profit status.

But I don’t think the legal approach is best in this case, anyway. The school probably would have done better by not expelling the girls, even if they had the right to do so. (I say “probably” because the opinion doesn’t fully spell out the facts of the girls’ conduct.)

Let’s take as a given that the church teaches against homosexuality. Does it really think that expelling every high school student who is even questioning his or her sexuality is the best idea? Adolescence is a time for questioning just about everything, including one’s religious beliefs. A school can embrace this challenge, inviting and encouraging dialogue about the basis for religious belief and the complex relationships between sexuality, its physical expression, and the demands of faith. My guess is that there are other students who engage in — or who have perhaps thought about engaging in — other sexual acts (even ones between members of the opposite sex!) that go against Lutheran teaching. Is it not odd that a religion born of a healthy questioning of religious teaching is fostering an atmosphere in which such questioning will be punished?     

Categories: Civil Rights, Gay Rights, religion Tags: , , , , ,