A Stitch in Haste

You can get the news summary regarding the trial court decision invalidating Iowa's DOMA statute (it is not a state constitutional amendment) via the heroes at Lambda Legal.

Here, meanwhile, are my hasty stitches:

--The first ten pages of the 63-page decision are a discussion of, mostly, whether certain expert witnesses should have been allowed to offer testimony. One "expert" opponent of gay marriage

specifically eschews empirical research and methods of logical reasoning in favor of "moral intuition." She has no training in empirical research and admits having no knowledge of existing social science research relevant to this case.

Another "expert" opponent "has no expertise relating to child development nor has he conducted any empirical research concerning same." Of course, gays are very familiar with such "experts" who omit, falsify, distort or otherwise "eschew" reality-based evidence regarding gay individuals, couples and families. The judge rightly rules that such "experts" have nothing to offer in a law- and rights-based analysis of the same-sex marriage debate and excludes their testimony.

--The next part of the decision discusses what issues of fact are and are not challenged by the parties. The interesting part here is that the judge does not allow the government to simply "guess" the way that, e.g., the New York high court allowed the opponents of gay marriage to guess about the nature of gay coupling. A sample:

Defendant and his authorities strive to make the point that same-sex couples do not procreate by accident. ... On the other hand, heterosexual couples may procreate and frequently do procreate without forethought or planning, which gives rise to the purported governmental interest in encouraging heterosexual couples to procreate, i.e., within the context of a stable, committed relationship — marriage.

Or, as I recently phrased it with respect to the New York case:

Translation: The Legislature can guess that straight couples need to be bribed into getting married in a way that gays need not be (don't worry — no one else understands it either).

This time, however, the judge does what judges are supposed to do: demand evidence, demand proof:

Because [a government "expert"] admittedly is unable to evaluate current social science regarding gay and lesbian parenting generally or critique the methodology upon which that science is based, [he] apparently is not commenting upon ... how children do by various measures when reared by heterosexual couples as opposed to same-sex couples[.]

In other words, there is (contrary to lying bigots) no evidence whatsoever that straight couples make better parents than gay couples, and this judge is not going to let the government pretend otherwise.

--Next up is a detailed discussion of the statute in question (Iowa Code §595.2) and how the current litigation came about. The judge notes that Iowa has no "separate but equal" or even "separate but unequal" alternative legal recognition such as civil unions or domestic partnerships (indeed, Iowa has no statewide legal protections for gays in any form or context, except hate crimes).

The ruling discusses the specific legal harms suffered by the six couples and their minor children. It notes that the case is arising solely under Iowa law and the Iowa Constitution (i.e., no "activist" federal judges will be involved) — this is almost always the case with such litigation. The judge notes that not all the legal benefits of marriage can be "replicated by contract" (and to the extent they can be, it is costly to do so).

The ruling notes — not decrees, but simply notes — that "Homosexuality is a normal expression of human sexuality." Someone tell Larry Craig — or Justice Scalia. Further down: "Being gay or lesbian poses no inherent obstacle to leading a happy, healthy and productive life." If we're miserable, it's because you make us so.

Next the judge looks beyond the six couples to Iowa's gay community generally: 5,800 same-sex couples based on census data — more than one-third raising minor children. The judge reiterates:

Social science literature demonstrates that children who are reared by a married mother and father have more positive outcomes[.] ... However, same-sex couples are not included amongst the "other adequately studied family structures[.]" (Emphasis in original.)

The bigot talking point that "children do best with a mom and dad" is not the same as "children do best with straight parents." All else is willful falsehood.

The judge moves on to debunk, quite indignantly, another bigot talking point: that "traditional marriage" has existed unchanged for 5,000 years (or whatever duration the bigots like to imagine). He notes that Iowa law originally acknowledged coverture (cf., this post), that Iowa was the third state in the union to repeal its anti-miscegenation law and the second to institute no-fault divorce.

This part of the decision concludes with an acknowledgement of the persistence of anti-gay discrimination, both in marriage and generally, and notes — this is very important — the "relative political powerlessness of the gay community." Footnote Four lives again.

--The actual legal analysis is relatively short, less than 20 pages. The bullet points:

• The Iowa Constitution's due process and equal protection clauses are at least as expansive as the Fourteenth Amendment's.



• Marriage is a fundamental right, therefore strict scrutiny applies to any "intrusive means" used to curtail it. Iowa law in no way contradicts Zablocki v. Redhail, which reiterated that "Loving was not just about race."



• Iowa law recognizes that due process rights evolve over time. You will find no cop-out "see Glucksberg" references in this opinion.



• Strict scrutiny requires a "compelling state interest." The government identifies five purported interests for banning gay marriage:

  1. promoting procreation
  2. promoting child-rearing by heterosexual couples
  3. promoting stability in opposite-sex relationships
  4. conservation of state and private resources
  5. defending traditional marriage

  The judge first rules that these interests, whether legitimate or not, are simply not compelling state interests, hence the state's DOMA statute fails strict scrutiny and violates the state constitution's due process clause.



• Later in the opinion (I'm bouncing around a bit), the judge reviews the ban under the lower rational basis standard: is the discriminatory regime rationally related to a legitimate state interest? The judge finds that all but the last are indeed legitimate state interests (more on that later), but none are compelling state interests for the purposes of strict scrutiny review. I would have liked to have seen a reference to Romer v. Evans in dismissing "defending traditional marriage" as an illegitimate interest. Oh well.



• The judge then dismisses the children as plaintiffs. Bottom line: Although there may be some "derivative" claim (the judge's term) not to be deemed an illegitimate child (i.e., since children of gay parents are "out of wedlock"), this lawsuit is not the forum to enforce that right.



• The court then moves on to the equal protection claim. The key point here is stunning: The judge embraces an argument that most courts have insolently rejected: the common sense tautology that saying "a man can marry a woman but not a man" and "a woman can marry a man but not a woman" is gender-based discrimination and not just sexual orientation discrimination. As such, even if the Iowa DOMA does not warrant "strict scrutiny" under due process / fundamental rights analysis, it still warrants "intermediate-level scrutiny" under equal protection / suspect classification analysis. Cutting to the chase, the judge unsurprisingly concludes that the gay marriage ban fails intermediate scrutiny: it is not substantially related to an important state interest.

--I previously wrote:

I've skimmed the Iowa ruling, and I can say this upfront: It's everything the New York ruling wasn't but ought to have been.

This was what I meant by that: When Hernandez v. Robles was handed down, I wrote the following:

The fact that limiting marriage to heterosexual couples, because "it's all about the children," is both underinclusive (we don't limit straight marriage to fertile couples, we don't compel straight couples to bear children, nor do we summarily dissolve straight marriages that do not result in children) and overinclusive (gays have children too, just not by accident), means nothing. Absolutely nothing.

Here's what the Iowa judge wrote:

§595.2(1) is at the same time grossly under-inlcusive and gross over-inclusive.

I've also written:

"Low-level scrutiny" is not, or ought not be, "no scrutiny at all." "Great deference to the legislature" is not, or ought not be, "absolute deference to the legislature."

The judge, citing authority:

"However, while rational basis analysis of a statute is admittedly deferential to legislative judgment, it is not a toothless one."

Strange, I don't see my name anywhere in the citations. Maybe that's because my analysis of the New York and Washington State decisions was not exactly pathbreaking; it was standard legal reasoning learned by every law student and hopefully applied by every judge when trying to answer such questions. Which makes one wonder how the wizened, experienced judges in the gay marriage defeats could have strayed so far off the reservation.

--One last quote:

Ironically, one of the principal legal authorities cited by [the government] has justified the exclusion of same-sex couples from marriage by reasoning that, because same-sex couples can only have children by means of adoption or assisted reproduction — processes which require a great deal of foresight and planning and which, therefore, require the prospective parents to be heavily invested, financially and emotionally, in those processes which, in turn, means that they are very likely to be able to provide stable environments in which to raise children — they do not need the encouragement to form a stable environment to form a stable environment within which to procreate and raise children and, therefore, allowing same-sex marriages would not advance the state's interest in responsible procreation by heterosexual couples. While [gays] may appreciate this back-handed compliment, the Court believes [their] parenting abilities are not so good that they couldn't use the benefits attaching to marriage to improve their children's lots in life, to say nothing of their own. (Emphasis added.)

The "principal legal authority" the judge refers to was an Indiana case, not Hernandez v. Robles. But the New York Court, also citing to that Indiana case, made the exact same argument and invoked the same obnoxious asteism — that gays don't need equal marriage rights because "we're just so much better than straights." Good grief.

Still, one wonders: Who back in the days of Cardozo would ever have imagined that an Iowa trial court judge would have standing to mock the preposterously backward reasoning of what was once the most influential state court in America?

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I was surprised that the judge did not immediately stay his own order pending an appeal. It was unintentionally and unfortunately cruel of him to lead so many same-sex couples to think that they could rush to the courthouse and get married (only one succeeded).

As for how the ruling will fare on appeal, I make no prediction. The legal reasoning is of course sound but not airtight. The key, as it so often is, will be to preserve heightened scrutiny. If the appellate courts reject both the judge's finding that "marriage qua fundamental right" has been intruded upon and his finding that a gay marriage ban is gender-based discrimination, and if those courts then deem rational basis review to mean "absolute deference" (as New York and Washington State did), then it all will have been for nothing but more heartbreak. A lot of "if's," but we've been down this road before. Stay tuned.

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The case is Varnum v. Brien, No. CV5965 (Polk Cty., 30 August 2007) (PDF - 63 pages).