The Iowa Supreme Court this morning unanimously upheld gays’ right to marry.
“The Iowa statute limiting civil marriage to a union between a man and a woman violates the equal protection clause of the Iowa Constitution,” the justices said in a summary of their decision.
The court rules that gay marriage would be legal in three weeks, starting April 24.
Amending the Iowa Constitution “requires the votes of a simple majority in both the Iowa House and Iowa Senate in two consecutive sessions, followed by a passing vote of the people of Iowa.” The Senate majority leader, a Democrat, said before the ruling that it was “exceedingly unlikely” that the Iowa Senate would take this up this session, so it appears that marriage equality will be the law in Iowa until at least November of 2012.
You can find a pdf file of a summary provided by the Iowa Supreme Court, or read a pdf of the full opinion. For something shorter, the blogger at WordInEdgewise has written an excellent summary of the decision.
Here’s a few bits from the Iowa Supreme Court’s summary:
Promotion of Optimal Environment to Raise Children. […] Although the court found support for the proposition that the interests of children are served equally by same-sex parents and opposite sex parents, it acknowledged the existence of reasoned opinions that dual gender parenting is the optimal environment for children. Nonetheless, the court concluded the classification employed to further that goal—sexual orientation— did not pass intermediate scrutiny because it is significantly under-inclusive and over-inclusive.
The statute, the court found, is under-inclusive because it does not exclude from marriage other groups of parents—such as child abusers, sexual predators, parents neglecting to provide child support, and violent felons—that are undeniably less than optimal parents. If the marriage statute was truly focused on optimal parenting, many classifications of people would be excluded, not merely gay and lesbian people. The statute is also under-inclusive because it does not prohibit same-sex couples from raising children in Iowa. The statute is over-inclusive because not all same-sex couples choose to raise children. The court further noted that the County failed to show how the best interests of children of gay and lesbian parents, who are denied an environment supported by the benefits of marriage under the statute, are served by the ban, or how the ban benefits the interests of children of heterosexual parents. Thus, the court concluded a classification that limits civil marriage to opposite-sex couples is simply not substantially related to the objective of promoting the optimal environment to raise children.
Promotion of Procreation. Next, the court addressed the County’s argument that endorsement of traditional civil marriage will result in more procreation. The court concluded the County’s argument is flawed because it fails to address the required analysis of the objective: whether exclusion of gay and lesbian individuals from the institution of civil marriage will result in more procreation.The court found no argument to support the conclusion that a goal of additional procreation would be substantially furthered by the exclusion of gays and lesbians from civil marriage.
Promoting Stability in Opposite-Sex Relationships. The County also asserted that the statute promoted stability in opposite-sex relationships. The court acknowledged that, while the institution of civil marriage likely encourages stability in opposite-sex relationships, there was no evidence to support that excluding gay and lesbian people from civil marriage makes opposite-sex marriage more stable.
I’m particularly glad that the Court’s decision brought up the best interests of children being raised by same-sex parents, a group that has been too frequently ignored in debates regarding marriage equality.
I don’t have enough understanding of Iowa politics to guess whether or not anti-equality folks will be able to amend the Iowa constitution to remove equal protection guarantees from same-sex couples for marriage laws. But in the meantime, this is extremely good news.
UPDATE 2: PG in comments writes:
I think we’ll be able to gauge the potential for backlash by whether the judges up for retention elections in 2010 (Justices Marsha K. Ternus, Michael J. Streit and David L. Baker) win those elections. Judicial retention elections tend to be pretty pro forma; when a justice loses, it’s indicative of public angst about his/her actions. If the anti-SSM folks can rally people to show up for a mid-term election and vote against the retention of these judges, that’s a bad omen for 2012.
UPDATE: Pam’s post at Pandagon includes some nice quotes of various right-wingers losing their shit.
Curtsy: Box Turtle Bulletin. Image from Dunechaser.
This is wonderful news. And I, too, particularly liked the take-down of the “what about the children?” objection to gay marriage.
Sweet!
Extra points to Iowa for being the first state Supreme Court to rule unanimously in favor of SSM, including Republican appointees such as Ternus and Cady.
I think we’ll be able to gauge the potential for backlash by whether the judges up for retention elections in 2010 (Justices Marsha K. Ternus, Michael J. Streit and David L. Baker) win those elections. Judicial retention elections tend to be pretty pro forma; when a justice loses, it’s indicative of public angst about his/her actions. If the anti-SSM folks can rally people to show up for a mid-term election and vote against the retention of these judges, that’s a bad omen for 2012.
While much less correlative, Gov. Culver (D) will be up for reelection in 2010 as well. If he is supportive of the Court’s decision — and at this point, there isn’t a clear sign that he will be — his reelection also will be framed as somehow a referendum on SSM.
The political fortunes of those individuals aside (and I think that’s a pretty good analysis of where we’ll see the backlash, if there is one), I feel hopeful that having legal gay marriage for several years before the public would get a chance to vote on it would make it less likely this would be overturned. In California, they had … what? 6 months? … with feelings around the decision very heated, and it was a really close vote. I hope that if it can be normalized over several years, the opposition won’t be able to gather enough steam.
This is fabulous news!
trackback —
DEAD AIR always did like Iowa!
I found this comment interesting:
It is interesting in that Iowa, in order for the constitution of that state to be amended; the amendment must pass the Legislature in two consequtive sessions. The wingnuts can’t just force a refurendoum posing as a constitutional amendment. At least not for two years. They don’t have very long attention spans.
Actually the amending process is similar to that of Massachusetts, where 1/4 of the legislature has to pass a resolution in two successive sessions, which then goes before the people for a final vote. In Massachusetts it passed once but then failed by a slim margin because Gov. Deval Patrick pulled out all the stops to coerce legislative supporters by threatening to restrict funding for their districts. So it never got before the voters. So the problem wasn’t the opponent’s attention span.
Iowa has no residence requirement for marriage. Thousands upon thousands of non-resident same sex couples are going to flock to Iowa to get married. Suppose it is overturned? Suppose over (let’s just say) 100,000 couples would retroactively lose their married status. Sooner or later two issues are going to have to be decided. 1. Does the “Comnity Clause” of the Constitution mean what it says or does it not.
This is what I actually had long expected to happen out of Massachusetts – that a couple would get “married” there, move to a state that banned the practice, and then sue to gain married status based on what I’ve generally heard referred to as the “full faith and credit” clause in the Constitution.
Should the U.S. Supreme Court then rule the Federal DOMA unconstitutional and require the states to recognize such, they’d pull marriage law away from the states and into Federal purview. At which point we’d see a move to gear up to amend the U.S. Constitution. Should be interesting, since vogers in at least 38 states have voted to ban the practice already.
2. Can a constitutional amendment, either to a state constitution or the U.S. Constitution be in itself unconstitutional?
O.K. I’m no lawyer, but it seems to me that a State constitutional amendment could be ruled as a violation of the U.S. Constitution. OTOH, I don’t see how an amendment to the U.S. Constitution could be ruled unconstitutional. Anyone out there more knowledgeable than I care to comment?
This seemingly localized event could decide the issue for the whole nation whether it wants it or no.
Yeah, how about that? We’ll see.
And the excitement builds once more. It’s five years later, but it’s Iowa. Iowa! Is there any question about which side ultimately wins this thing?
It’s a great day for those who believe in equality.
Should the U.S. Supreme Court then rule the Federal DOMA unconstitutional and require the states to recognize such, they’d pull marriage law away from the states and into Federal purview.
O.K., I’m not lawyer, but how would this pull marriage law away from the states and into federal purview more than it already is? I married in Illinois, I live in Arizona, and my marriage is valid here (I presume under the full faith and credit clause). DOMA (which seems to me unconstitutional on its face, though I’d be interested to know what the lawyers here think) changed the status quo by allowing states to not recognize one very particular kind of legal agreement from another state. Undoing DOMA would restore that status quo (marriages performed in one state are valid in every state) rather than being some radical change in the relationship between the states and the feds with regards to marriage law. No?
At which point we’d see a move to gear up to amend the U.S. Constitution. Should be interesting, since vogers in at least 38 states have voted to ban the practice already.
If this vote were held next year, yeah, it would be bad (for me, not for you). Indeed, this kind of calculation may be why we haven’t seen a challenge yet to DOMA. But I do think time is on our side. I’m not sure that in five years or 10 years, the political landscape for SSM will look the same as it does today.
Could you provide a link for this claim? I tried Googling and didn’t see anything.
Yeah. Today the political landscape wrt SSM looks nothing like it did in 1999 and has also changed a lot since 2004. There was no question in my mind 5 years ago about how this would end. Events since have supported my opinion. I don’t see a swing the other way in the next 5 to 10 years. People opposed to SSM are becoming fewer and that position is on its way to becoming as untenable as the anti-miscegenation or anti-suffrage positions.
It would be kind of funny if, in retrospect, it turns out that DOMA bought time, warding off an effort to amend the U.S. Constitution until there was enough public support for SSM that the amendment effort fails. I feel like I’m tempting fate by even writing that. I’m off to knock on wood and whatever other superstitious rituals will prevent a successful effort to ban SSM in the U.S. Constitution.
Total agreement.
What surprises me is how few SSM opponents seem worried about how their position will be perceived in 25-50 years’ time. I mean, it’ll be like trying to explain to your kids or grandkids why you opposed racial integration.
—Myca
(A): Yes. An amendment to the state constitution is a part of the constitution and is not viewed any differently than the rest of the constitution.
Any provision of any state constitution can be overturned by a federal judge (not necessarily the Supreme Court) if it is ruled to be in violation of the U.S. Constitution. In practice, while a state law may be overturned by a lower court, I believe that language of state constitutions tends to be appealed to the circuit or U.S. Supreme court.
However, a state constitution cannot be overturned by the Supreme Court of that state, because the highest authority in the state law is the Constitution of that state, and because the state Supreme Court will only apply state law.
Also, you may have a challenge to the amendment process which arises under the state constitution (as is happening in California.) That is not an issue of whether the amendment itself is in conflict with the existing constitution of that state (all amendments are presumably in conflict with the old text) but is a process issue.
(B) No. The U.S. Constitution is the highest law of the land and cannot be overruled by any governmental body who is acting within the legal process. The only people with the power to overrule it would be the Supremes, and they are bound by it–they cannot overrule it.
In theory, the US Supremes could rule on a challenge to a constitutional amendment, but as with the state Supremes who rule on state constitutions, their ruling would have to focus on process, not content.
IOW, there is nothing which theoretically prevents the U.S. from re-enacting slavery, hanging, ownership of women, or anything else that it wants.
Myca,
I think there’s a divergence in the two types of people who oppose these court rulings. One type doesn’t care so much about SSM as caring about the way it comes to be legalized, and indeed generally acknowledges that SSM eventually will be accepted by the majority of Americans.
This is the kind of conservative elite that, in front of a sufficiently sophisticated audience, also will say that Brown v. Board, Loving v. Virginia, and Griswold v. Connecticut (the case that said CT couldn’t ban contraceptives, articulated a right to privacy and set the stage for Roe v. Wade) were wrongly decided. They’re by no means friendly to gays, because they set a vastly higher priority on process than on substance in this area, whereas in other areas like the need for Congress to amend FISA before the executive just overrides it, they’re happy to find excuses of necessity that make something like NSA surveillance OK.
But the “how history will view us” argument has no weight with them because their constitutional views already have been losing for the last 60 years; they’re simply convinced of their own correctness and quietly waiting to get those views back into a majority on the Supreme Court. (At the moment, I’d consider Thomas to be the biggest throwback, since he claims that the 14th Amendment didn’t really have the effect of extending the Bill of Rights to protect against state government violations.)
On the other hand, you have people who have no genuine problem with the courts deciding matters so long as the courts are in agreement with themselves (e.g. people who would be happy for the Supreme Court to find a heretofore never-recognized legal personhood for fetuses in the Constitution), which tend to be the sort of non-elite conservatives.
The losing side of history thing doesn’t work on them either, because they’re convinced that they’re the silent majority and once the courts stop all this judicial activism, there couldn’t possibly be a democratic acceptance of SSM. Partly because they are non-elite, they aren’t in places where they encounter a lot of people who will express different opinions than their own, and especially aren’t around young college graduates (who seem to be the population driving SSM acceptance).
RonF, are you “married”?
This quote from one of the homophobes losing their shit —
—is unintentionally hilarious. We are talking about two people getting married, right? Like, when I got married, my life got a lot less perverted and destructive. Not that I was competitive with more adventurous souls out there (and, hey, more power to them), but it has been very hard to see how the marriages among my queer friends has done anything more than settled them down in nice houses where they raise their kids.
Anyway, all hail aberration! :-)
This is awesome, but does the post have to be illustrated with a picture that includes the HRC logo? I get sort of a sinking feeling whenever it shows up, given their history, and this doesn’t even seem to have anything to do with them.
To tell you the truth, I didn’t even recognize the HRC logo when I found this photo. I just thought “LEGO = awesome.”
One quibble with Sailorman’s legal analysis –
State courts are also duty bound to follow the U.S. Constitution. A state supreme court could hold that a state constitutional amendment violates the US constitution. It’s politically unlikely, but certainly within the duties of the state supreme court to rule on.
The US Supreme Court will NOT review and/or overturn a state law based decision (whether based on state law or state constitutional interpretation). The US Supreme Court will only review a state supreme court’s decision when that decision rests upon a point of federal law (statutory or constitutional).
So the Iowa Supreme Court’s decision that denying same sex marriage violates the Iowa Constitution’s equal protection provisions cannot be appealed to the US Supreme Court, because the US Supreme Court will not interpret the Iowa Constitution. States are free to provide their citizens with MORE rights than the US Constitution affords.
Any US Constitutional amendment undoing a decision of this sort would have to RESTRICT the rights that a state can grant to its citizens. Which I think (though I haven’t thought about it in any sort of thorough way) would be rather unique and unprecedented.
I am married, as are most of the women in my knitting group, including two who are married to each other. They live together, make financial decisions together, eat together, camp together, and raise kids together, as do my husband and I (except that we’re not big on camping). So, Ron, why are my husband and I married while my friends are “married”?
In what way does their marriage or any other same-sex marriage diminish mine? If you ask me, it’s the other way around: the institution of marriage is weakened, not strengthened, if eligible couples are denied it out of sheer bigotry.
Oh, and also: hearty congrats to both Iowa and Vermont! May the dominoes keep falling.
Emily @ 19:
The US Supreme Court will NOT review and/or overturn a state law based decision (whether based on state law or state constitutional interpretation).
Are you forgetting about Bush v. Gore?
RonF @ 6:
I don’t see how an amendment to the U.S. Constitution could be ruled unconstitutional.
The Constitution says that it cannot be amended to deny states equal representation in the Senate. Whether an amendment that repealed this clause but left the distribution of Senators untouched would be constitutional, I don’t know.
Some commentators have also suggested that an amendment could be struck down on account of vagueness just like regular laws. There’s nothing in the Constitution requiring legislation to not be vague, but American legal tradition provides grounds for courts to invalidate laws apart from unconstitutionality. Whether such grounds can be found to invalidate an amendment is at this point entirely a theoretical discussion, as, to my knowledge, no Supreme or Constitutional Court in any common-law country has tried to invalidate an amendment to that country’s constitution. I may of course be wrong.
Jason L,
Bush v. Gore didn’t overturn the FL Supreme Court’s interpretation of state statutory or constitutional law. The appeal to SCOTUS was brought on federal constitutional grounds and decided thereon.
My bad. I was confusing Bush v. Gore with the ruling the SCOTUS issued a few days earlier vacating a FL Supreme Court ruling that the manual recount could proceed past the FL legislature’s deadline of 14 Nov. (http://archives.cnn.com/2000/LAW/12/10/scalia.stevens/)
Thanks for the link. I think I see what you’re talking about, but I’m pretty sure that the stay was issued because of the underlying Constitutional challenge brought by Bush against the recount. According to Scalia’s concurrence, the 5 justices who voted for the stay were concerned that if the recount continued while they were deciding its constitutionality, it would “threaten irreparable harm to [Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.”