Nan Hunter

First thoughts on Iowa marriage decision

Filed By Nan Hunter | April 03, 2009 12:00 PM | comments

Filed in: Marriage Equality, Politics, The Movement
Tags: iowa, law, lesbian, LGBT, marriage, supreme court

First, hats off to Lambda Legal for a truly spectacular job in winning this case. In retrospect, this decision may come to seem almost as important as the first one in Massachusetts. Why?

  • The decision was unanimous, the first time that any marriage case has been won without a dissent or, for that matter, by more than a one-vote margin.
  • The decision cuts off any impulse in the legislature to opt for civil unions, saying that "a new distinction based on sexual orientation would be equally suspect."
  • ...the statutory language must be applied and interpreted in a manner allowing gay and lesbian people full access to the institution of civil marriage.

  • The victory came in Iowa, widely perceived as an all-American, proudly midwestern, emphatically non-New England state.

The court reasoned that the ban on same-sex marriage violates the Iowa state constitution's equal protection clause. Iowa followed Connecticut in applying an intermediate level of scrutiny, rejecting the defense argument that rational basis was the appropriate standard.

Advocates will now switch to the job of defending the decision. Iowa allows voters to amend the state constitution, but only after both houses of the state legislature, in two consecutive sessions, pass a proposed amendment. According to the Des Moines Register, the earliest this issue could get on the ballot is 2012.

It will be fascinating to map the moves in public opinion over the next several years. A fall 2008 public opinion poll found that 28% of Iowans supported same-sex marriage, another 30% supported civil unions, and 32% opposed both. As always, it's all about that movable middle.

Cross posted at hunter of justice

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Marla R. Stevens Marla R. Stevens | April 3, 2009 9:27 PM

And for it to land on the ballot as early as 2012, they're going to have to get it past Sen. Majority Leader Mike Gronstal who is making as strong a series of "over my dead body" statements as I've ever heard a politician make. And to get to Gronstal they're going to have to go first through me and a growing body of others who are likewise in a "take no prisoners" frame of mind.

We don't plan on leaving such cultural change to chance. We'll eventually win one person and one dollar at a time -- Iowa style. We have a little experience in campaigning in our state and regularly get to see what works and what doesn't in a rather uniquely intimate fashion. Skillful blends of the retail and the wholesale with an emphasis tending to the former.

Yes, it will be interesting and the numbers are not currently in our favor so we'll have to remember all our cat-skinning variety lessons well.

In the meantime, Professor, would you mind expanding on your observation of the Iowa Supreme Court's use of the Connecticut Middle Way in scrutiny, burden of proof, and its potential effect on things beyond equal access to civil marriage -- particularly if that confers anything close to classic suspect class status and any differences between the two?

Nan Hunter Nan Hunter | April 5, 2009 12:41 PM

The intermediate scrutiny standard of review is the one used for evaluating sex-based classifications. It is a notch below the suspect class standard used for race and a notch above rational basis, the default standard which usually involves heavy deference to the legislature. Either of the two heightened (i.e. above rational basis) standards is good news.

As a practical matter, the level of scrutiny in sex/o cases is going to matter most in two areas: family related issues (marriage, adoption, etc) and challenges to the military's DADT policy. The catch on the second one is that because of the courts' policy of extreme deference to the military, I doubt that the level of scrutiny will matter much. When it comes to the military, the Supreme Court has upheld discriminatory policies based on sex (Rostker v Goldberg) and religion (Goldman v Weinberger). Getting rid of DADT will almost certainly require repeal by Congress.

I hope this doesn't go the way of California.

Me too, Alex. I'm hoping that since the right to marry will have existed for three years before it can come to a public vote, voters will have a greater sense that a constitutional amendment banning same-sex marriage truly would be removing a right from one segment of the population.

Iowans are just. I think fairness will be a winning argument in 2012.

Marla R. Stevens Marla R. Stevens | April 4, 2009 11:25 PM

I am hoping we can avoid putting it on the ballot altogether. That is my goal and it's far from an impossible one.