Legal Commentary

I have had a chance to quickly read the Iowa gay marriage decision.  Here are some initial thoughts (subject to correction or revision upon further reflection!).  First, people here that I've talked to are generally surprised that the court was unanimous and that it fully endorsed same sex marriage, not something like civil unions.  The court's unanimity, in my view, is a definite sign that the court wanted to maximize its institutional legitimacy by joining together, despite the fact that its members have disagreements in numerous other cases.  The court also reasoned pretty bluntly that civil unions amounted to treating gay people as second class citizens.  Second, regardless of one's view on the gay marriage issue, I think this is a well crafted legal opinion for several reasons.

One reason it's well crafted is that it's based solely on the state equal protection clause and the notion that laws that burden people based on sexual orientation deserve heightened scrutiny.  Thus, the result is broad in scope, but the reasoning is narrow and does not go all over the map addressing every possible legal theory that could support plaintiffs.  It reads like a legal opinion to me with some judicial minimalism, not a political statement, though others will undoubtedly disagree and the line between the two is never precise.  Another impressive part of the opinion is that it addresses the hardest issues in substantial ways, rather than bypass them or deal with them conclusorily.  For example, on the issue of immutability (whether sexual orientation is an unchangable birthright or malleable), the court admits in a lengthy discussion that we don't have definitive scientific evidence but says there's certainly sufficient evidence to show that changing one's sexual orientation is potentially damaging and/or difficult for many people.   Thus, the court says it's troubling to treat people differently based on such a largely unchanging characteristic. 

There's also an interesting discussion about whether courts should provide heightened protection to gay people because gay people lack political power.  The court admits that Iowa has a variety of laws that protect gay people suggesting there is not a complete absence of such political influence.  But the court says those laws don't show that gay people are now politically well protected.  In an interesting footnote, the court implies that the election of Barack Obama did not mean that African-Americans in this country are now fully equal in the political process.

One of the controversies in the case was that the district judge had excluded much of the state's evidence.  The Supreme Court says that was a mistake, and summarizes the evidence, but then still rules against the state.  This again though shows a level of equanimity.  In addition, the court proudly recites Iowa's history of progressive racial equality decisions in the 19th Century to support its approach.  Drawing on the state's heritage in such a way is what state constitutionalism is about.  At the same time, the court says that equality analysis cannot be based on tradition alone as our social norms do and must change, as the racial decisions demonstrated.  Lastly, the court addresses the state's justification that heterosexual marriage provides the best situation for raising children.  The court responded that the evidence here is unclear and therefore doesn't satisfy the state's burden under heightened scrutiny.  The court then does a detailed analysis of other reasons the state's argument on the raising of children issue is legally problematic.

I've read all the other state supreme court opinions on gay marriage and I think this one stands up pretty well in terms of legal quality, regardless of what side one is on.  The author, Justice Mark Cady, is also not considered a left wing judge by any means which may further enhance the ruling's influence especially since it comes from a "heartland" state.  Opponents of the decision here plan to seek a constitutional amendment but that's a long haul requiring approval in two state legislative sessions and a vote by the public.  It's not likely all that could take place before 2012 and the issue may have have faded by then somewhat.  We shall see.