Guest Blogger

What Iowa Means To California

Filed By Guest Blogger | April 03, 2009 4:00 PM | comments

Filed in: Marriage Equality, Politics, Politics
Tags: gay marriage, Iowa, marriage equality, Prop 8, Prop. 8, same-sex marriage, Shannon Minter

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.

Shannon_Minter.jpgIn 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.

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This is a great post- such an exciting day! Nice to feel hopeful...

After reading your press release, I am especially pleased to read an expansion of your thoughts, Shannon. Thank you for the wonderful explanations!

Wonderful post, Shannon. I agree with your statement that, "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," but I'm wondering from a practical perspective how much the CA judges will look at examples from other states. I have this vision of them holed up in a room somewhere, not looking for more input at this point. I'm not a lawyer, though, so I don't really know how these things work.

Marla R. Stevens Marla R. Stevens | April 3, 2009 8:50 PM

Funny, I get the sense that the two courts are communicating with each other, ruling by ruling. The scene in the Kevin Costner film about the Cuban missile crisis where McNamara is reading the admiral the riot act for 'exercising the rules of engagement' provocatively against the will of the president, where McNamara is sputtering in disgust about new forms of communication is wedged analogically in my brain...

I highly doubt this event will alter their decision.

Not to mention that the Iowa case and this one are completely different.

At it's core, the CA case is about turning equal protection analysis on its head. If the CA decides this case as they seem determined to decide it, it would render protections against mob rule meaningless. There is no difference in these cases other than the level of courage.

Thanks Shannon for the great post. I am hopeful that true equality will win the day in California. Kudos for the article.

Thanks so much, Shannon, for your amazing work in challenging the injustice of prop 8. As a native midwesterner, I'm surprised and delighted to see Iowa setting the standard. Congrats to everyone in the Tall Corn State. I hope that the California Supremes are paying attention.

I can hear gay heads in New York and California exploding all over. Iowans do this, just as a boycott is called against Jamaica. ("This is not how it was supposed to be! In college they told me WHITE people were the bad ones! As well as being colonialists!")

Don Sherfick Don Sherfick | April 4, 2009 7:03 AM

Shannon, while I deeply appreciate and congratulate you and your colleagues for the wonderful efforts you've put forth in California, and cautiosly hope for a successful outcome in the awaited decision on Proposition 8 there, I do note this in yesterday's landmark Iowa decision:

"Finally, it should be recognized that the constitution belongs to the people, not the government or even the judicial branch of government. See Iowa Const. art. I, § 2 (“All political power is inherent in the people.
Government is instituted for the protection, security, and benefit of the people, and they have the right, at all times, to alter or reform the same, whenever the public good may require it.”)."

That would seem to acknowledge, in Iowa at least, and almost certainly everywhere else in the United States, a concept that assuming an amendment process is constitutionally sound from a procedural viewpoint, a "bare" (however defined) popular majority can indeed take away the rights of the minority. I think even the California Supreme Court acknowledged that this could be done under that state's constitution by a combination of 2/3 of the state legislature plus 50.000001% of a popular vote following.

Somehow in all of the current rhetoric I think there is a danger of creating the impression that our movement feels that ultimately the people be dammned, the courts, like an infallible Pope, have the last word in a direct pipeline from God. And the right wing seizes upon that notion (despite their own thocratic notions of government) that we really are engaged in elevating those "unelected activist judges" above the common man.

That's why, to me, our movement will succeed and keep its gains by some kind of blending of a growing popular consensus and well-reasoned judicial decisions.

I hear what you say, Don, but doesn't the chicken/egg question also apply to your theory?

If the concept of equal protections is a valid, thought out, and reasonable belief that was created not from judicial activism but from the citizens that understood how an imbalance was occurring in the application of justice and liberty in our democracy, then why should that decision NOT take precedence over any schemes like Proposition 8?

If, as a few courts have said (most recently in Iowa, but also in CA as recently as 2008), LGBT people are a classification of people that are historically and unfairly subjected to discriminatory treatment, then why should courts not take on the role of overseeing actions by legislators and executives that might overreach their authority - especially when those laws affect ONLY the suspect class?

Who else could possibly take on this role? We must be able to give authority to someone to lend us perspective - and that IS the purpose of the courts and the checks and balances.

Fine, the peep-hole have the right to amend and elect and repeal and complain but the people also allowed safe guards to be built in to the system called equal protections and due process.

I don't think that any court should shy away from defending our right to protections and should have no difficulty in explaining how the majority over reaches the boundaries that THEY set up for themselves. The concept of equal protection is learned and understood and tested through cases like ours.

We are the contemporary embodiment of what our constitution should protect. State legislative bodies are also contemplating ways to accommodate our citizenship. It is happening all over Don. The courts have to play a role and sometimes it absolutely suck and doesn't.

Marla R. Stevens Marla R. Stevens | April 4, 2009 10:07 PM

I couldn't agree more, patrick, noting that the ignorance of a poorly educated electorate denies them a substantial basis for respect for the boundaries the people themselves agreed to -- literally to protect themselves from their baser selves in situations like these.

That said, in addition to the education necessary to correct that (documentarians and great dramatic filmmakers, please step up), Don's suggested dual and balanced emphasis is wise counsel. In fact, I see them all working hand-in-hand.

Try asking people how they think we got those constitutional basics like equal protection in the first place -- specifically, in their state and federal constitutions, other black-letter, and case laws. Who were the people who wrote them and when and why and how were they put in place to do so? Why are so many of the Midwest's and West's state constitutions so much stronger on these Bill of Rights-style freedoms than our federal constitution and many of the Eastern, Northeastern, and Southern ones? The history behind the answers to these questions is anything but dry and irrelevant in modern life.

When I studied American Constitutional Law, on of the things that US professors emphasised to European students was the idea that there were basic human rights that had to be kept outside of the hands of majoritarian Bigotries of the age

Oddly, a European, Irish Parliamentarian (TD) Michael D Higgens probably put it best "We are not talking about a concession. And we are not talking about a concession that is adjusted to the social prejudice of the day...we are talking about people who are citizens participatin in the institution that includes a sexual relationship..they have the same right to participate personally and institutionally in the life of the state as equal citizens with protections and responsibilities before the law."

Before a ballot initiative can be put on the ballot for the people to vote, it must be determined, by the Legislature and the A.G. that it is "Constitutionally Sound". Prop.8 should never have been allowed, because that question was never raised. Brown slipped up on this one, and tried to recover (after the fact) by arguing that prop.8 was a FUNDAMENTAL REVISION, not a Simple Amendment, which indeed it is, and that therefore it is non-votable by a simple majority. Prop. 8 was a poisoned pill, crafted with the intent of DESTROYING the Constitution and Bill Of Rights. A simple majority can not do this constitutionally.


Thanks for this excellent piece, and for all the work you have done.

I agree that Iowa should and will have an impact on the upcoming California decision. The beauty of the Iowa decision (I know, I poured over all 69 pages!) is its simplicity, elegance and refutation of the antiquated arguments made by Roger Kuhle and by the right in general.

Looking forward to good news in California too!