Legal Commentary

Thanks to the Prawfs Blawg gang for this opportunity to blog.  I originally planned to blog about a book I've just had published called "Constitutional Rights in Two Worlds, South Africa and the United States" (Cambridge University Press).  But that will have to wait.  The Iowa Supreme Court has announced it will issue its decision on gay marriage Friday morning April 3.  Since I'm "on the ground" here at Drake Law School in Des Moines teaching constitutional law, I thought I'd provide a little background.  An Iowa district court judge ruled in 2007 that the state prohibition on gay marriage was unconstitutional.  That decision, however, was stayed though one male couple managed to marry.  The judge ruled the law violated the fundamental right to marry, and that it did not even meet rationality review under equal protection.  It's very difficult to know though how the Iowa Supreme Court will rule.  Yet I suspect the decision will have major ramifications, especially if the court supports gay marriage.  Suddenly, the "all American" "heartland" would be on that side.

The district judge who issued the ruling did not have a particularly liberal reputation beforehand.  The Iowa Supreme Court has a very solid reputation but it does not have a tendency to be one of the nation's trend setting state supreme courts.  The state precedents are also a bit unclear and allow both sides to make their cases.  For example, in Racing Association of Central Iowa v. Fitzgerald (2004), the Iowa Supreme Court said reasonableness review under the state constitution's equality provision must not be "toothless."  This could support gay marriage advocates.  Also, in the 19th Century, the court issued some progressive racial equality decisions at odds with U.S. Supreme Court approaches.  Yet opponents of gay marriage can point to cases like Ames Rental Property Association v. City of Ames (2007) that upheld a law banning households of more than three unrelated people from living together even though the court acknowledged that the law was "imprecise and based on stereotypes."  Then in State v. Mitchell (2008), the court upheld a child endangerment conviction for a women who cohabited with a sex offender, along with her child, even though no conviction would be possible if the woman was married to the offender.  The court said that, "A law need not right all possible harms in order to be constitutional."  So we'll see what happens...