Editors' Note: Guest blogger Shannon Minter is the legal director for the National Center for Lesbian Rights and lead counsel for same-sex couples and Equality California in Strauss v. Horton, the challenge to Proposition 8 currently pending before the California Supreme Court. The California Supreme Court is expected to rule on the validity of Proposition 8, which altered the California Constitution to eliminate the right to marry for same-sex couples, by June 3, 2009.
In the first ruling from a Midwestern state to uphold full equality for same-sex couples, the Iowa Supreme Court (in a case brilliantly litigated by Lambda Legal) unanimously ruled today that Iowa's statutory ban on marriage by same-sex couples violated the equal protection guarantee of the Iowa Constitution. That historic decision from the heartland of our nation, affirming the bedrock principle of equality for all, rightly puts a spotlight on the California Supreme Court, which must rule on the validity of Proposition 8 in the next 60 days.
Last November, a bare majority of California voters enacted Proposition 8, which added a provision to the California Constitution restricting marriage to heterosexual couples. Proposition 8 reversed the California Supreme Court's 2008 decision striking California's statutory ban on marriage by same-sex couples and holding - in ringing and eloquent terms - that the provision of a separate status for those couples was inherently unequal.
The eyes of California and the world are now on the California Supreme Court, which must determine whether equal protection means equal, and whether Californians will continue to share that equality in the freedom to marry. As counsel for same-sex couples and Equality California in the pending challenge to Proposition 8, we sincerely hope the California Court will uphold the principles of equality, just as the Iowa Supreme Court has done.
The legal issues presented by the two cases are not identical; however, the Iowa decision strengthens our challenge to Proposition 8 in two respects.
First, the Iowa court repeatedly underscored that equal protection is one of the "basic principles essential to our form of government," part of our very "blueprint for government," essential to the continued existence of "our republican form of government and our freedoms," and the foundation of "the rule of law." That is the centerpiece of our argument in the Prop 8 case. What is at stake in the Prop 8 case is not just marriage for same-sex couples, but the foundational principle that all people are entitled to equal protection of the laws.
Today's decision from Iowa strongly reinforces that the California Supreme Court must not permit a simple majority of voters to jettison that defining hallmark of our government by eliminating a right only for an unpopular minority. It would be tragic for California to abandon the principle of equal protection for gay and lesbian people just as that principle is seeing renewed affirmation across the country.
Second, the Iowa decision affirmed the California Supreme Court's prior holding (in its 2008 marriage decision) that creating a separate status for same-sex couples is inherently unequal. The Iowa Supreme Court noted that courts in Vermont and New Jersey "have allowed their state legislatures to create parallel civil institutions for same-sex couples" (p. 68), but the Iowa justices followed the California Supreme Court in strongly rejecting that approach.
The Iowa court held: "A new distinction based on sexual orientation would be equally suspect and difficult to square with the fundamental principles of equal protection embodied in our constitution." (p. 68) Last year, the Connecticut Supreme Court likewise agreed with the California Supreme Court that a separate status cannot provide equality for same-sex couples.
Especially in light of today's decision, it would tarnish the California Supreme Court's credibility and stature for the court to back away from its prior decision and pretend that Proposition 8 does not relegate same-sex couples and their children to a second-class status. Proposition 8 installs an invidious inequality in the heart of the California Constitution. There is no principled way for the California Supreme Court to uphold Proposition 8 without compromising its prior decision in the Marriage Cases and causing grievous and unjust harm to an entire class of California families.
This is a defining moment for our state and for the California Supreme Court. The Court's decision in the Prop 8 challenge will either reaffirm the centrality of equality in our constitutional system, or it will hold, for the first time in our state's history, that a simple majority can amend the constitution to impose inequality on an unpopular minority. It would be deeply ironic for the California Supreme Court, having done so much to lead the way in establishing equality for same-sex couples and their families, to turn back the clock and force the more than one hundred thousand same-sex couples in our state to move to Des Moines to be treated with full equality and respect.