Equal Protection Not Religious Doctrine

by Michael A. Lindenberger for Time Magazine:


Suddenly, California seems so long ago, so far away.

When the Iowa Supreme Court ruled on Friday that gays can marry in the Hawkeye State, gay marriage became not just a coastal thing. Deep in the rural heartland, a straightforward opinion — written by a justice appointed by a conservative Republican governor — methodically eviscerates one argument after another that for decades has been used to keep marriage the sole preserve of straight couples. "This class of people asks a simple and direct question: How can a state premised on the constitutional principle of equal protection justify exclusion of a class of Iowans from civil marriage?" Justice Mark S. Cady asked.

The answer? It can't.


"I would say the mood is one of mourning right now," Bryan English, spokesman for the conservative Iowa Family Policy Center, told the Associated Press, even as he promised to lobby legislators hard to begin an amendment process. But that process, in Iowa, is a lengthy one — and unlike in California, the constitution can't be amended by a simple vote of the people. Both houses of the legislature must approve it, and most legal experts agree that the process could be put before voters no sooner than 2012. (See TIME's video: "Iowa: Gay Marriage in the Heartland")

The decision came at a pregnant moment in what has become one of the defining legal battles of our time. It offers hope to supporters of gay marriage just when they were feeling lowest. Last year's ruling by the California Supreme Court issued a broad new justification for gay marriage — the Republican-dominated court declared forcefully that California may not discriminate against gays in any way, giving the ruling more legal force and sweep than any decision of its kind ever has. Thousands of couples flocked to clerk's offices to be wed. Months later, in November, however, that jubilation turned sour, when Californians voted to change the constitution to forbid gay marriage. Soon after, some gay activists from across the country were asking for a time out, arguing that the marriage activists had pushed too fast and too hard — and that the backlash in more conservative states would undo any progress enjoyed in places like San Francisco or Boston. "Marriage was never our issue," one activist from south Florida told TIME last November. "It was thrust upon us by the other side, and they've done a very good job of beating us up over it."

But after Friday those calculations look timid. Now three states require full marriage for gays, and Vermont is on the brink of becoming the first state where gay marriage would be made legal by lawmakers, rather than the courts — a significant milestone. The Vermont House passed a law allowing gay marriage on Friday, and the Senate is expected to follow suit on Monday. Gov. Jim Douglas has promised to veto it, but an override fight will quickly follow, probably by next week.

There might even be good news in the Iowa decision for gays in California, where activists are fearfully awaiting the justices' ruling on Prop 8, which is likely to be issued in coming weeks. The Iowa decision cited the California case eight times and borrowed its reasoning again and again. That kind of homage from a sister court — and one that, like California's, has a long history of breakthrough civil rights decisions — may strengthen the resolve of the majority in the Golden State and turn aside the narrow vote of the people.

But for now, the power of the Iowa decision can be measured on its own terms. It did not speak with the historic sweep of the California court, perhaps because the justices there know Iowa's court is less often seen as a harbinger of legal trends than California's. And in one important aspect the decision stopped short of following California's lead. In California, Chief Justice Ronald George declared that from now on, any laws that discriminate against gays in California are presumptively unconstitutional and will be subject to "strict-scrutiny" analysis by the courts — a burden that is reserved in every other state for cases involving discrimination against religion or immutable characteristics such as race. By extending it to homosexuals, the California court made clear in a way that no other state court has that gays are deserving of fundamental protections.

The Iowa decision's precedent is less forceful. (Read the full decision) Iowa decided, instead, that the statute banning gay marriage fails a subordinate level of constitutional analysis, what courts call "intermediate scrutiny," an approach usually used with cases involving discrimination on the basis of gender, for instance. Because the statute could not even meet that standard, Cady ruled that there was no need to decide whether a higher level of scrutiny should be required in the future.

But in other ways, the Iowa decision was every bit a match for the California ruling. It took up each argument against gay marriage and dispatched them with a minimum of bombast. An exception was the vivid language employed by the court to cement its position that gays have indeed been discriminated against as a class — a traditional test for whether a group deserves the protection of heightened constitutional scrutiny. "The County does not, and could not in good faith, dispute the historical reality that gay and lesbian people as a group have long been the victim of purposeful and invidious discrimination because of their sexual orientation. The long and painful history of discrimination against gay and lesbian persons is epitomized by the criminalization of homosexual conduct in many parts of this country until very recently. School-yard bullies have psychologically ground children with apparently gay or lesbian sexual orientation in the cruel mortar and pestle of school-yard prejudice."

But the true power of the decision lies not in its equal protection analysis, though it is rooted there. Instead, what sets this decision apart is the frank way in which it raises the issue of religious objections to gay marriage. As the Supreme Court did in Lawrence v. Texas, its seminal 2003 ruling striking down sodomy laws, the Iowa court says that mere moral opprobrium or deeply held values are not enough to warrant legal sanctions or the denial of legal rights. The court then subtly raises the issue of religious opposition to gay marriage, even though the legal briefs by the other side did not.

"Whether expressly or impliedly, much of society rejects same-sex marriage due to sincere, deeply ingrained — even fundamental — religious belief," the court said, before adding that religious views are nonetheless mixed on the subject. "As a result, civil marriage must be judged under our constitutional standards of equal protection and not under religious doctrines or the religious views of individuals. This approach does not disrespect or denigrate the religious views of many Iowans who may strongly believe in marriage as a dual-gender union, but considers, as we must, only the constitutional rights of all people, as expressed by the promise of equal protection for all. We are not permitted to do less and would damage our constitution immeasurably by trying to do more."

Religious opponents to gay marriage were not convinced. "We, the Roman Catholic Bishops of Iowa, strongly disagree with the decision of the Iowa Supreme Court which strikes down Iowa's law defining marriage as a union of one man and one woman," the bishops said in a statement issued Friday. "This decision rejects the wisdom of thousands of years of human history. It implements a novel understanding of marriage, which will grievously harm families and children.

English, the spokesman for the conservative family group, said he's already begun lobbying for an amendment campaign to outlaw gay marriage again. "The first thing we did after internalizing the decision was to walk across the street and begin the process of lobbying our legislators to let the people of Iowa vote," he said.

But until that comes to pass, observers on both sides considering the opinion will likely find the strongest language in the decision to be its final four words: "AFFIRMED. All justices concur."