Activist Judge Overturns Iowa AntiGay Marriage Law

[DoubtingStephen]

An "activist judge" has ruled that the Iowa gay panic sanctity of marriage law is unconstitutional.

In his ruling, Hanson said the state law allowing marriage only between a man and a woman violates the constitutional rights of due process and equal protection.

"Couples, such as plaintiffs, who are otherwise qualified to marry one another may not be denied licenses to marry or certificates of marriage or in any other way prevented from entering into a civil marriage ... by reason of the fact that both persons comprising such a couple are of the same sex," he said.

The judge said the state law banning same-sex marriage must be nullified, severed and stricken from the books and the marriage laws "must be read and applied in a gender neutral manner so as to permit same-sex couples to enter into a civil marriage..."

Link (http://www.chicagotribune.com/news/chi-ap-ia-samesexmarriage,0,6837781.story?page=2&coll=chi-news-hed)

[Lisa Simpson]

Good for him. I hope more judges rule the same way.

[Loss Leader]

Here's my prediction. Come back in four years to see how I did:

1. Judge grants stay pending appeal, preventing gays in Iowa from marrying.

2. Iowa Court of Appeals hears the case, finds the law unconstitutional on a technical issue nobody even brought up.

3. Iowa's Supreme Court hears the case, finds the law overbroad and orders the Legislature to create a civil marriage statute within ninety days.

4. Legislature hangs itself up, creating an utterly unworkable law.

5. A second round of suits ends in the Supreme Court ordering county clerks to allow gays to marry.

6. For four months, gay marriage is legal in the State of Iowa.

7. Iowa passes a Constitutional Amendment barring gay marriage but ordering insurance agencies to extend benefits to "queer life partners, interior decorators and women with mullets."

8. Campaigning for President in Iowa, Senator Clinton speaks of her affection for homosexuals, famously saying, "As you all know, my mother President Clinton was gay."

9. Aliens attack and we are enslaved by insect overlords.

[DoubtingStephen]

Of course the judge will be harshly villified.

A losing district attorney commented, after the judge ruled, that this matter should not be decided by a judge.

Usually in a state where a court has ruled in a fashion that favors equal rights for gay people, the folks opposed to equality say that it is not a matter for the courts to decide. In many states legislatures have passed laws preventing gay marriage, there was no conservative response that this is not a matter for the legislature.

Here in California, when the legislature passed a bill that would allow gay marriage, our Party of Jesus Governator said it was not a matter that should be decided by the legislature. He vetoed the bill. Apparently it should be decided by the Governator.

[Miss Anthrope]

This judge will get a bit of fan mail from me, that's for sure.

This guy is my hero. I'm straight, but it bothers me to the core that someone who is not is denied rights that are given me for no good reason.

Washington, a very liberal state, has one of the lamest civil union laws ever. When you go to the page to download the form, it says it "registers your civil union but does not grant any legal rights". A complete joke.

My husband has suggested we divorce and get a civil union instead. Then I told him the only reason I married him was in case of emergency............

[Darth Rotor]

An "activist judge" has ruled that the Iowa gay panic sanctity of marriage law is unconstitutional.

Link (http://www.chicagotribune.com/news/chi-ap-ia-samesexmarriage,0,6837781.story?page=2&coll=chi-news-hed)

In his ruling, Hanson said the state law allowing marriage only between a man and a woman violates the constitutional rights of due process and equal protection.

It's sorta simple, that Fourteenth Amendment deal, isn't it? I am not so sure I get his "due process" finding as well as the equal protection, but the element of the XIVth has been the 800 pound gorilla in the room the whole time.

DR

[TragicMonkey]

Do opponents of gay marriage realize they're fighting a losing battle? Once the Baby Boomer generation starts dying out, the more liberal but less numerous younger generations will be enacting all sorts of wacky things. Kids these days aren't afraid of the gays at all, because they grew up with Spongebob and Tinky Winky and Steve from Blue's Clues. (I know, I know, Steve's not. But it would be awesome if he were. Dreamy. I'd totally gaymarry him.)

[ImaginalDisc]

(I know, I know, Steve's not. But it would be awesome if he were. Dreamy. I'd totally gaymarry him.)

You're just falling for the heroin chic. :p

[pgwenthold]

Do opponents of gay marriage realize they're fighting a losing battle?

Oh absolutely! Why do you think they are in such a rush to get this stuff passed NOW, without hesitation. It can't be because there is this massive rush of gay marriages happening everywhere. I said this long ago. They are doing it now because they know in 20 years no one will care.

In fact, when I write to my representatives and whatnot, this is the argument I make. Why rush? Why not give it time and let's see how much of a problem gay marriage is. Right now it obviously is not a real issue. Until it looks to actually be causing a problem in society, let's hold off on making any serious changes.

If Massachussetts falls to pieces because of their legalization of gay marriage, then we can act. But if they don't, then why bother?

[Orangutan]

My husband has suggested we divorce and get a civil union instead. Then I told him the only reason I married him was in case of emergency............

You could divorce and get a civil union and also sign enduring power of attorney over to each other.
;)

[Beerina]

Here in California, when the legislature passed a bill that would allow gay marriage, our Party of Jesus Governator said it was not a matter that should be decided by the legislature. He vetoed the bill. Apparently it should be decided by the Governator.

This is rich given the conservative principle is that big cultural shifts should only happen via deliberative, legislative process. That doesn't mean he should feel he should have not vetoed it, but it does mean he should take the decision of his own state legislature seriously.

And if it shouldn't be in the hands of the legislature, in whose hands should it be?

[DoubtingStephen]

Party of Jesus Presidential Candidate and Magic Underwear aficionado Mitt Romney has not disappointed by attacking the Judge using standard Party of Jesus ad hominem technique:
"The ruling in Iowa today is another example of an activist court and unelected judges trying to redefine marriage and disregard the will of the people as expressed through Iowa's Defense of Marriage Act," Romney said in a statement issued by his campaign. "This once again highlights the need for a Federal Marriage Amendment to protect the traditional definition of marriage as between one man and one woman."

Note that Mitt carefully avoided using troublesome phrases like equal rights.

It's all about the imaginary evil condemned by the Imaginary Bearded Sky Daddy.

Looks like Mitt has the hatemonger vote locked up already.

[Lisa Simpson]

This is rich given the conservative principle is that big cultural shifts should only happen via deliberative, legislative process. That doesn't mean he should feel he should have not vetoed it, but it does mean he should take the decision of his own state legislature seriously.

And if it shouldn't be in the hands of the legislature, in whose hands should it be?

From Wiki:

In February 2004 when San Francisco Mayor Gavin Newsom, ordered a change in the certificate application documents to allow for same-sex marriages, Governor Schwarzenegger opposed the move as being beyond the powers of the mayor but also said that he supports gay rights and has expressed support for a law to grant civil unions to gay couples.

In 2005 when he vetoed a bill that would have legalized same-sex marriages he defended his actions by saying that California voters had passed an initiative banning such recognition and that he supports that state's domestic partnership law that gives same-sex couples many of the same rights as a heterosexual married couple.

Still, critics have observed that there is no federal requirement that other states recognize a state-granted domestic partnership, as is the case with marriages under the Full Faith and Credit Clause

[qayak]

Anybody know where one can send the judge an e-mail congratulating him on his courage?

[In My Spare Time]

Yay Iowa judge.


hey Washington state Democratic Supermajority in the legislature:
LET ME GET MARRIED IDIOTS!

hey Washington state supreme court: read this ruling and LEARN SOMETHING IDIOTS!

Seriously, Iowa? Before Washington, Oregon, California, New York, Connecticut, Minnesota, Vermont and all the supposedly liberal states but Massachusetts? Get with it liberals, help a gay man out here.

[nightwind]

I really have never figured out why anyone would be against gay marriage, if it doesn't hurt them in any way?

[DoubtingStephen]

I really have never figured out why anyone would be against gay marriage, if it doesn't hurt them in any way?

I think that the people in Iowa are desperately afraid there will be thousands of deaths as a result of the destruction of the Sanctity of Marriage. Take Massachusetts as an example. In only 2.5 years of gay marriage there have already been zero deaths, property values have gone down by 0%, and up to zero fundamentalist Christians have been forced to flee the state as a result of marital sanctity gay panic syndrome.

Seriously though, there are some people that are so stupid that when Fundamentalist Christian leaders predict non-specific dire consequences they believe it. We call these people the majority.

[yodaluver28]

Yeah this is one subject where I simply cannot comprehend the thought process of the people who disagree with me. I'm pro-choice but I understand the pro-lifer position. Some take to extremes, but I get where they're coming from, I really do. But there is just nothing that makes sense about the obsessive drive to stop gay marriage. I honestly don't understand what's supposed to be so pressing and perilous. What do they honestly think the worst-case scenario is here?

[Miss Anthrope]

Yeah this is one subject where I simply cannot comprehend the thought process of the people who disagree with me. I'm pro-choice but I understand the pro-lifer position. Some take to extremes, but I get where they're coming from, I really do. But there is just nothing that makes sense about the obsessive drive to stop gay marriage. I honestly don't understand what's supposed to be so pressing and perilous. What do they honestly think the worst-case scenario is here?

Awesome post. Couldn't agree more.

[Travis]

I think a large part of it comes from a fear of the unknown and the consequences of that unknown.

My Mom (who steadfastly believes I'm gay just because I can't get girlfriends) thinks that if gay marriage were legal that other things that are supposedly fundamental to society will disappear. For example she thinks that if a society can make gay marriage legal, then why not make theft legal, or murder legal? For her, and others like her, all abject morality, and laws derived from them, is not the product of a collaborative society but dictated by divine authority. For these people murder isn't wrong because it has ended a distinct human life, it's wrong because God commanded it was to be wrong. So for them because religious authority continues to state it's wrong, regardless of it's inherent irrationality, it is wrong. That it harms no one is irrelevant to them.

Now what makes this even more confusing is that these same people will often rationalize themselves around God's Will in other areas. Rationalizing theft or understanding that outlawing coveting, a thought process, itself is rather silly and impossible. But for this one, they stand their ground. To account for that one must also understand that the secondary element of this is the halcyonic view of the past that they have. Gays just didn't get married in the good-old-days and so they shouldn't now. This is the same mindset that kept women "in the kitchen" and out of the workplace for far too long.

Just my 2 cents on it.

[hgc]

To account for that one must also understand that the secondary element of this is the halcyonic view of the past that they have. Gays just didn't get married in the good-old-days and so they shouldn't now.


Medieval gay marriage!

http://www.msnbc.msn.com/id/20464004/

[TragicMonkey]

Yeah this is one subject where I simply cannot comprehend the thought process of the people who disagree with me. I'm pro-choice but I understand the pro-lifer position. Some take to extremes, but I get where they're coming from, I really do. But there is just nothing that makes sense about the obsessive drive to stop gay marriage. I honestly don't understand what's supposed to be so pressing and perilous. What do they honestly think the worst-case scenario is here?

I've heard some voice concerns that legalized gay marriage will anger their god, and he'll vent his wrath on the whole country for allowing it to happen. He'll send things like 9-11s, hurricanes, and season after season of American Idol. Of course, we get all those things anyway, but that's just because we're still debating the issue.

[hgc]

I've heard some voice concerns that legalized gay marriage will anger their god, and he'll vent his wrath on the whole country for allowing it to happen. He'll send things like 9-11s, hurricanes, and season after season of American Idol. Of course, we get all those things anyway, but that's just because we're still debating the issue.


Ah, collective guilt. Perhaps the worst and most dangerous aspect if religion, as it justifies control by religious authority over non-adherents.

[DoubtingStephen]

Well, any time their anti-gay God wants to duke it out, man against fairy tale, I'm ready!

[Brown]

Here's my prediction. Come back in four years to see how I did:
[spoiler omitted]
...2. Iowa Court of Appeals hears the case, finds the law unconstitutional on a technical issue nobody even brought up.

3. Iowa's Supreme Court hears the case, finds the law overbroad and orders the Legislature to create a civil marriage statute within ninety days.
...There's trouble right there in River City. In Iowa, appeals go directly from the district court to the Supreme Court. They do not ordinarily go through the Court of Appeals.

Iowa has a Court of Appeals, but the Court of Appeals hears cases assigned to it by the Supreme Court. The Supreme Court retains the right to "further review" of Court of Appeals decisions. A link to the basics. (http://www.judicial.state.ia.us/Public_Information/About_the_Courts/Appellate_Procedure/) (By the way, if you thinks this is confusing, as a New York lawyer why his Court of Appeals is higher than his Supreme Court.)

The issue in such a case is unlikely to be deflected to the Court of Appeals. Chances are the Supreme Court would hear the case itself.

I just wanted to make that procedural point before addressing the issue in a little more detail.

[Brown]

A losing district attorney commented, after the judge ruled, that this matter should not be decided by a judge.Another minor point. Iowa has County Attorneys, not District Attorneys. Same thing, but different title. The current County Attorney in Polk County is John Sarcone. The attorney who argued--apparently to Judge Hanson--that the issue is not for the judge to decide was an Assistant County Attorney, according to the Des Moines Register.

[ponderingturtle]

Yeah this is one subject where I simply cannot comprehend the thought process of the people who disagree with me. I'm pro-choice but I understand the pro-lifer position. Some take to extremes, but I get where they're coming from, I really do. But there is just nothing that makes sense about the obsessive drive to stop gay marriage. I honestly don't understand what's supposed to be so pressing and perilous. What do they honestly think the worst-case scenario is here?

The main reason seems to be, if it was such a good thing, they would have set that up a long time ago. So because marriage as a tradition is old you must keep it as it is.

The arguments about families don't hold up because if you really thought that then you should want to make even more drastic changes to marriage than letting two individuals of the same sex marry.

[Terry]

Well, any time their anti-gay God wants to duke it out, man fairy against fairy tale, I'm ready!

Fixed it for you, dear :)

[DoubtingStephen]

Thank you dear, I sort of thought somebody might seize that opportunity.

[Brown]

Here is a link (http://www.desmoinesregister.com/assets/pdf/D284196830.PDF) to the judge's decision. I recommend reading it. Whether you agree with the decision or not, you should read it in order to be well-informed. (I have previously taken others to task for expressing very strong opinions about documents that they have not bothered to read.)

The plaintiffs in the case are individuals who want to marry. The defendant is the former Polk County Recorder/Registrar who refused to allow the marriages to be recognized (and this is why the Assistant Polk County Attorney was arguing in the case).

Judge Hanson begins with some basic stuff, subjects taught in the first year of law school. What is summary judgment? What is relevant evidence? Basic stuff.

Things start to get interesting when Judge Hanson rules that the testimony of some so-called experts is inadmissible. Experts on ethics, religion and law were determined to be unqualified. The reasons given are interesting. In the case of one so-called expert, she didn't want to support her findings with "empirical research and methods of logical reasoning," preferring instead to rely upon "moral intuition." Judge Hanson found two other individuals likewise unqualified:The views espoused by these individuals appear to be largely personal and not based on observation supported by scientific methodology or based on empirical research in any sense.Still other experts are disregarded for having no empirical research to back up their testimony. They want to express opinions about sociological matters without having any training in sociology or social science. They want to express opinions about child development without having any training in that field. They want to express opinions about psychological matters without having any training in psychology or psychiatry.

It is strongly implied that these folks all want to tell the judge what the law ought to be (and not merely the impact of a law upon people). Although the Judge does not put it in this way, there is no person in the world who is qualified to sit in the witness chair and tell the judge what the law is or is not or ought to be. In his courtroom, only the judge is qualified to decide these things. (Police officers are very aware that a judge does not let a witness testify about law, and they know that they are not permitted to testify that a person was "operating a vehicle illegally" or intoxicated "above the legal limit.")

Although the Judge ruled that some of the experts would not be considered, he also ruled that three remaining individuals were experts in medicine, child development and mental health. Their testimony, he said, would be considered.

The Plaintiffs (the individuals who wanted to marry) had their own experts as well. One of them was Dan Johnston, whom I mention, but not by name, in this thread (http://forums.randi.org/showthread.php?t=64963). Johnston was one of the men who argued the famous Tinker case to the U.S. Supreme Court, and I worked for him for a few months. Another witness was John Schmacker, who used to go to the same church I did (he was an excellent musician and was the church organist for many years). Judge Hanson ruled that Johnston's and Schmacker's testimony was anecdotal and inadmissible, for basically the same reason that some of the defendants' expert testimony was inadmissible.

Those who would label Judge Hanson as "activist" or "legislating from the bench" would do well to read those sections of his opinion in which he discusses evidence. Legislatures are not bound by such rules of evidence, but Judge Hanson is. Moreover, Judge Hanson will not consider personal opinion, no matter how deeply held or how prestigious the person holding it, without some specialized study backing it up.

There follows a rather illuminating discussion of some of the testimony proffered to the judge. Basically, the judge is posturing the matter to move it toward a ruling, but the discussion is interesting nevertheless.

Beginning on page 16 is the list of facts that (according to the judge) is not subject to material dispute. One of those key facts is that homosexuals in a committed relationship are not treated the same way as heterosexuals in a committed relationship. In other words, that there is discrimination is not in dispute at all. The principal question is: Is this discrimination legitimate? Generally speaking, legitimate discrimination is constitutional (under the Iowa Constitution and the U.S. Constitution, although the two constitutions may disagree on the standards of legitimacy), while illegitimate discrimination is not.

The statute in question provides: "Only a marriage between a male and female is valid." The Plaintiffs challenged the statute under the Iowa Constitution, NOT the U.S. Constitution.

Many of the harms that result from this discrimination are set out in the judge's opinion. They are deemed not subject to dispute. Gay couples are stigmatized. Their children, not being able to benefit from a family marriage, are bastards. Things in daily life that married couples take for granted are denied to those in committed gay partnerships. The list of disparities is a long one.

Beginning on page 27 is a list of facts about sexual orientation. According to Judge Hanson, none of them is in dispute:57. Homosexuality is a normal expression of human sexuality....

58. As lesbians and gay men, each of the Plaintiffs experiences an innate attraction to people of the same sex. Plaintiffs would not help (and cannot change) that they have fallen in love with a person of the same sex.

59. A person's sexual orientation is highly resistant to change.
...
62. Sexual orientation is a trait unrelated to ability....

72. Nothing about a parent's sex or sexual orientation affects either that parent's capacity to be a good parent or a child's healthy development ("adjustment").
...
74. Children raised by gay and lesbian parents are as well-adjusted and as psychologically, emotionally, educationally and socially successful as children raised by heterosexual parents.
...
76. (I)t is also well-established that children do not need a parent of each gender to be well adjusted, that both men and women have the capacity to be good parents, and that children do not need male and female role models in the home to develop normally. There are those who (assuming they read this document) would howl at such findings. And yet, contrary findings were not supported by any admissible evidence.

Beginning on page 37, Judge Hanson discusses the extensive and "unthinkable" changes that have occurred to the institution of marriage over the years. Wives used to be property. Certain racial and ethnic prohibitions used to be commonplace. Divorce used to be fault-driven.

Judge Hanson properly points out that Iowa has been very progressive in the area of family law: the third state to do away with miscegenation laws, the second state to institute no-fault divorce. (Judge Hanson does not go into detail, but Iowa has a very impressive record on women's rights and opportunities for women in schools, government and social programs. This is a touchy subject, however, because more modern voters swatted down several equal rights amendments to the Iowa Constitution. Iowans adopted an ERA a few years ago, however.)

At issue is the sex-role conformity that still is a part of Iowa law. The progressive history that leveled the playing field for women and for many other minorities has not been applied to gays. On the contrary, the state legislature has deliberately and repeatedly tried to keep homosexuals from having legal protection.

Against this factual background, Judge Hanson turned to the law (page 43). And in my next post, so do I.

[Safe-Keeper]

Arguments against homosexual marriage range from the well-meaning to the absurd to the outright hateful. If you'll permit me, I'd like to recap:
Appeal to emotion fallacy - 'think of how much the poor children of gay parents will be bullied!'. Lacks grounding in reality. Kids of gay people are treated as well as kids of straight people by their peers. It's also worth mentioning that if fundies want to do something good for these kids, they should research the subject and stop mercilessly subjecting their parents to hatred. Children should not be forced to grow up watching their parents take flak more efficiently than a Ju-87 bomber over London during the dreaded Blitz.
Appeal to religion. In my view, myths and politics, and as a side note nationalism and politics, should be separated by as thick a wall as possible. If you have a case to make, make it with logic and reason. Oh, and your bigoted notion that the US was founded as a Christian nation and that every state which strays from the One True Law™ will become Communist or get bombed by brimstone can end. Now.
Slippery slope fallacy - if we allow gay marriage, people will start pushing for marriage between man and animal, or adults and kids! etc. Totally irrelevant. Legalizing gay marriage will very likely encourage nutters to push their wishes, but we'll take that as it comes. You can't make decisions based on the slippery slope idea unless you can prove to me that the slope is sufficiently slippery to prevent any sort of efficient braking.
Appeal to tradition fallacy. Tradition is merely lots of people systematically doing the same thing over a long period. This is inherently irrelevant to whether or not the action is desirable. A democratic tradition is worth maintaining, a tradition of slavery is not. You get my point.
Appeal to the 'sanctity of marriage' (what the [rule 8] does 'sanctity' mean anyways:rolleyes:?!). This usually is a two-fold argument, part an ignorant appeal to tradition stating that marriage has always been inter-gender, and part the nutcase hypothesis that the gay rights movement is responsible for the rising divorce rates. This conveniently disregarding that correlation does not have to equal causation. I also wonder if the people using this argument realize that 'in the good ole days™', you couldn't marry outside your religion and ethnicity, and spouses couldn't divorce their abusive spouses. Is that really what they want to return to? It's as much 'tradition' as the restriction on gay marriage, after all.
Appeal to nature. Bigots love to claim that animals don't engage in homosexuality. Funny thing is that whenever it's pointed out to them by me that this is not true, they forget they ever thought it mattered in the first place and start demanding that I tell them how on Earth the degree of homosexuality in nature could possibly be relevant to the discussion. For real. It virtually never fails. They do it nearly every time.
Appeal to democracy, popular opinion, roles of certain institutions in making decisions, etc. Possibly the only point in the whole list to not be total nonsense.
Fallacious appeal to - of all things under the Sun - the bloody dictionary. 'This book of mine says only men and women marries and doesn't speak off those guys with teh ghey!'. Right. And the entry on 'Flight' in my encyclopedia from 1894 has no reference to airplanes. I suppose we should stop saying airplanes 'fly', then, as that word is restricted to birds:D? 'You're in violation of key paragraphs of our God-inspired... dictionary and the sanctity of flight! Yeah. Stop. Now!'. Right. Bring it on.
Misunderstandings on fitness of parenting. See later in my post.
Other arguments not worth mentioning, like 'OMG it's teh grosses me out!!111'. Lots of things gross me out. I don't try to ban any of them.72. Nothing about a parent's sex or sexual orientation affects either that parent's capacity to be a good parent or a child's healthy development ("adjustment").:jaw-droppFundies will start screaming about how he's endorsing pedophilia in 6... 5... 4...:D

74. Children raised by gay and lesbian parents are as well-adjusted and as psychologically, emotionally, educationally and socially successful as children raised by heterosexual parents.

76. (I)t is also well-established that children do not need a parent of each gender to be well adjusted, that both men and women have the capacity to be good parents, and that children do not need male and female role models in the home to develop normally.In fact, there are studies that show that children of lesbian parents perform better socially and are less frequently abused than children of heterosexual parents. Let me see if I can dig it up.

Doesn't bode well for us guys. What with women being able to make kids with each others through modern science, and proving fit to be better parents without us... looks like we're becoming obsolete:o.

The arguments about families don't hold up because if you really thought that then you should want to make even more drastic changes to marriage than letting two individuals of the same sex marry.Exactly. Lots of people like to use gays as scapegoats for the rising divorce rates. This probably so they won't have to actually work to reduce it by means of education or funding to marriage counseling or other measures. I myself am very much in favor of High School classes telling kids what to expect from marriage, how to plan ahead, divide responsibility and handle conflicts, and so on. Put it into Home Economics or make it a whole new subject. With divorce rates over 50%, it's certainly more than important enough.

[Brown]

Just a reminder: The decision can be found here (http://www.desmoinesregister.com/assets/pdf/D284196830.PDF).

The Iowa Constitution provides: "(N)o person shall be deprived of life, liberty, or property without due process of law." In addition to a Due Process Provision, the Iowa Constitution has an Equal Protection provision. Although these provisions parallel the U.S. Consititution, Iowa is not obligated to follow U.S. Consititutional jurisprudence when deciding questions under its own constitution. Iowa can (and does) look to federal cases for guidance, however.

In both Iowa and Federal law, a key inquiry is whether a law affects a "fundamental right." If the right is "fundamental," the law affecting it must be viewed with the elevated degrees of scrutiny. Freedom of expression is a fundamental right. Voting is a fundamental right.

And the right to marry is a fundamental right.

By Iowa law, it is a right allowed to some, but denied to others.

Laws have to be supported by reasons. When the law impinges upon a fundamental right, the reason has to be a damn good one. But in light of the facts set forth earlier in the ruling, where is the reason? Personal opinion won't cut it, nor will conclusory assertions that aren't backed up with empirical studies. If the state is going to grant certain rights to one group but deny those same rights to another group that is similarly situated, the state must have a compelling reason for this discrimination.

The County Recorder listed five reasons to ban gay marriage (p. 50). Judge Hanson not only found the reasons uncompelling, he found them so lame that they wouldn't support the marriage ban even if there were no fundamental right at stake. One of the supposed governmental interests, that of promoting traditional marriage for its own sake, was not deemed to be a legitimate governmental interest at all.

To the extent that the proffered reasons were legitimate on their face, they were insufficient to justify the discrimination, in Judge Hanson's view, because they were unsupported by evidence. In this thread (http://forums.randi.org/showthread.php?t=79851) and this thread (http://forums.randi.org/showthread.php?t=68183), I discuss the concept of "legislative factfinding," a process in which the legislature can "find" as fact things that are clearly at odds with the weight of the evidence. If the judge were "legislating," he could engage in the same shady and often dishonest practice. But because he's acting as a judge, he has to base his decision on evidence. And in this case, the evidence was not only overwhelming, it was basically one-sided. (This is perhaps a credit to the Assistant Polk County Attorney, who apparently argued the case zealously but who refused to go "into the gutter" by branding all homosexuals as evil people per se, unfit parents or sick deviants.)

One of the proposed governmental interests behind keeping gays from marrying is what Judge Hanson called "responsible procreation." Yet there was no record supporting any conclusion that homosexuals as a group were irresponsible. On the contrary, the undisputed facts were that homosexuals could be good parents. Moreover, heterosexuals were allowed to marry even if they didn't (or couldn't) procreate.

The other principal governmental interest is "conserving state and private resources." Judge Hanson gives this argument short shrift, but on a surprisingly technical basis. The issue could be swiftly handled on its merits, but Judge Hanson rules that the Defendant has failed to meet an evidentiary standard (which may indeed be the case, as this ground has far less appeal than the "responsible procreation" grounds).

In the end, Judge Hanson determined that both the Due Process and Equal Protection provisions of the Iowa Constitution were violated.

Now, will this opinion hold up on appeal?

First, consider the composition of the seven-member Iowa Supreme Court. The Court has long resisted meaningless labels as a "liberal" or "conservative" court, but one who knows the justices can easily find more than four justices who would be inclined to consider the striking down the statute, and all of them would give the issue serious consideration. In addition, all of them would be impressed by the work that Judge Hanson put into his ruling.

Second, there is a weakness in Judge Hanson's ruling, namely, he decided the issue on summary judgment. It can be difficult to defend summary judgments on appeal because any dispute as to any material fact is supposed to preclude summary judgment. If there's a dispute as to any material fact, then the issue has to go to trial for resolution. The Iowa Supreme Court could, and perhaps would, vacate the ruling on technical grounds, saying that there was a disputed issue of material fact. This wouldn't be the same as saying that Judge Hanson was wrong, but it would postpone the effective date of the ruling for perhaps a year or two.

[Brown]

Here's a link (http://www.desmoinesregister.com/apps/pbcs.dll/article?AID=2007709010337) to a follow-up in the Des Moines Register. Please note that this is a "column," not an "article"; it is supposed to have doses of opinion and observation in it.The ruling now, apparently, will be up to the Iowa Supreme Court. God, meanwhile, still believes marriage should be between one man and one woman. At least that's what almost all the churches say, including Robert Hanson's church, West Des Moines United Methodist.

I hate to disappoint anyone, but it wouldn't be fair to call Hanson a godless secular humanist. Or even a garden-variety secular humanist.

"I understand that he's an active, devout layperson in his church," said Gregory Palmer, the resident bishop of the Iowa Area United Methodist Church. "There are nominal United Methodists, but I don't believe the judge fits that description."The church says homosexuals shouldn't be allowed to marry. And Judge Hanson is an active member of that church.

But Judge Hanson placed his duty as a judge ahead of church teachings. When push came to shove, church teachings aren't evidence. And Judge Hanson was wearing the robes of a judge, not the robes of a clergyman.

It is somewhat refreshing to hear that the church bishop still regards the Judge as a "good Methodist" and is proud that he is a member.

[Safe-Keeper]

But Judge Hanson placed his duty as a judge ahead of church teachings. When push came to shove, church teachings aren't evidence. And Judge Hanson was wearing the robes of a judge, not the robes of a clergyman. Good, good, good man.

As for the argument that marriage is for making kids, it's so silly I can't even begin to fathom it. First of all, as you said, there's the fact that sterile people and couples not interested in having kids being entitled to marry without receiving flak from the bigots. Secondly, there's the fact that there exists in every country a number of orphans, or kids of parents unfit to care for them. If everyone's going to make kids and no one's going to take care of the existing ones, what do we do with those without good parents? Do we just leave them to rot in orphanages?

I do believe, actually, that the fact that gays and lesbians can't have kids together is one of the main reasons to support gay marriage. The couples, unless they procreate through artificial means, adopt kids from orphanages and give them good, caring homes to live in.

[Brown]

Here's a link (http://www.desmoinesregister.com/apps/pbcs.dll/article?AID=2007709010336) to a story about presidential candidates, many of them traipsing through Iowa, commenting upon the ruling. Anybody want to make a bet that NO ONE of them has read it or made the first effort to understand it or dissect it?

Mitt ("Mitt, Mitt, full of grit!") Romney: "The ruling in Iowa ... is another example of an activist court and unelected judges trying to redefine marriage and disregard the will of the people as expressed through Iowa's Defense of Marriage Act." Oh, pardon me, Mitt, but perhaps you can enlighten us on other "activist" rulings, especially from Iowa? Or perhaps you'd care to comment on the fact that while Iowa judges are appointed they stand with their names on the ballot for retention during elections, and thus can be rejected by voters? (Indeed, the electorate booted out a judge as recently as 1998.) And maybe before you'd go off on the "will of the people," you'd check and see what a majority of Iowans actually think?

John ("This candidacy will self-destruct in ten weeks") McCain: The ruling is "a loss for the traditional family." REALLY? What, pray tell, have heterosexuals "lost?" McCain bounded from one non sequitur to another: "The ruling of the court only reinforces my belief that we must have a president who is committed to appointing strict constructionists to the bench." But Senator, this was a STATE issue, decided under the STATE constitution (as anyone who read the ruling would know). Remember when Republicans used to be really big on something they called "states' rights?" Besides, what makes you think that this opinion WASN'T a strict constructionist opinion? As anyone who read the ruling would know, Judge Hanson relied upon text and precedent, and did not pull any new rights out of thin air. Pray, Senator, enlighten us with your wisdom.

Sam ("Dumber than George W. Bush, if such a thing is possible") Brownback: "This decision shows how important it is to elect leaders who will stand for marriage and who will appoint judges that will not legislate from the bench." Too bad, Sammy. Democrat Chet Culver just started his term as governor this year. It'll be more than three years before such an election takes place. And besides, Sammy, you haven't read the ruling either, as evidenced by your pathetic "legislate from the bench" remark.

Rudy ("More marriages than kidneys") Giuliani: "Rudy Giuliani believes marriage is between a man and a woman." Oh, this one is too easy. I'm leaving it alone.

Hillary ("I've got more balls than any Republican") Clinton: Said she favors civil unions "with full equality of benefits." But she said the question of same-sex marriage should be left up to the states. Bland, but at least there is no suggestion on her part that she has actually read the ruling.

Barack ("Yes, my voice HAS cracked") Obama: Said through a spokesman he "believes these matters should be left to the states, which is why he opposes the Defense of Marriage Act." Noncommital and kinda misses the point, but what the hey.

[Brown]

As for the argument that marriage is for making kids, it's so silly I can't even begin to fathom it. First of all, as you said, there's the fact that sterile people and couples not interested in having kids being entitled to marry without receiving flak from the bigots. Secondly, there's the fact that there exists in every country a number of orphans, or kids of parents unfit to care for them. If everyone's going to make kids and no one's going to take care of the existing ones, what do we do with those without good parents? Do we just leave them to rot in orphanages?

I do believe, actually, that the fact that gays and lesbians can't have kids together is one of the main reasons to support gay marriage. The couples, unless they procreate through artificial means, adopt kids from orphanages and give them good, caring homes to live in.Judge Hanson mentions another class of heterosexuals allowed to marry, even though they can't have kids: PRISONERS! Yes, your scum-sucking (but technically straight) felon in the pokey has the right to marry, even if law-abiding gay couples don't.

It may also be a good idea to remember what George Carlin said: Gay couples WON'T HAVE ABORTIONS! If you're really opposed to abortions, then shouldn't you be in favor of committed relationships that are guaranteed not to have abortions?

[Miss Anthrope]

Don't they realize if we let the gays get married, god will be very angry and the rapture will happen?

[ponderingturtle]

Those who would label Judge Hanson as "activist" or "legislating from the bench" would do well to read those sections of his opinion in which he discusses evidence. Legislatures are not bound by such rules of evidence, but Judge Hanson is. Moreover, Judge Hanson will not consider personal opinion, no matter how deeply held or how prestigious the person holding it, without some specialized study backing it up.


I thought you knew activist judge was a political term for "Judge making ruleings I don't like and changing the status quo"

[Tressa]

This reminds me of the fact that forty or so years ago a black person and a white person couldn't marry because many people thought it "immoral" or worse yet some sort of "interspecies" mating.

Can't keep love apart forever. It is a loosing battle.

This issue mostly bothers me because it is such a waste of precious time. Other issues are so much more important (the war, education, health system, etc) and time is being wasted on an issue that is really only an issue because a bunch of loud mouths are screaming "eeww we don't like that!"

Lewis Black covers this issue well in "Red, White and Screwed" when he quotes a congressman (from pennsylvania I believe, who's name I am sorry to say I cannot remember) as saying that "gay marriage is a threat to the American family" and then says that the statement shows "a level of ignorance that is staggering in this time period."

The fact that adult of age citizens who have the right to marry are being denied their right to marry is just mind boggling to me. Don't like, don't go to the wedding, don't go to their house for dinner, don't throw an anniversary party for them, etc, etc, so on and so forth. Next issue please!

[TragicMonkey]

The sad thing is that opponents of gay marriage are picturing scary, sexy gays getting married. Leathermen and porn stars and drag queens. And then them doing threatening, erotic things at the wedding reception, thus throwing terror into the straight population with their sexy, sinful antics.

When it actually looks like the gays who get married or want to are the boring, ordinary-looking couples who go to the hardware store on Saturdays to pick up tile to fix up their bathroom, not to find reinforced ceiling hooks for their sex dungeon. It's hard to think of anything less threatening than people settling down. Thats when they stop going out and picking up strangers and dancing on tables and doing all the things that scare the straights if they're flipping through the channels and come across a pride parade on the news.

[Upchurch]

Well, any time their anti-gay God wants to duke it out, man fairy against fairy tale tail, I'm ready!
Fixed it for you, dear :)

Just remember: you started it.

[Tsukasa Buddha]

Cool info Mr. Brown!

Thanks :) !

[ponderingturtle]

The sad thing is that opponents of gay marriage are picturing scary, sexy gays getting married. Leathermen and porn stars and drag queens. And then them doing threatening, erotic things at the wedding reception, thus throwing terror into the straight population with their sexy, sinful antics.

When it actually looks like the gays who get married or want to are the boring, ordinary-looking couples who go to the hardware store on Saturdays to pick up tile to fix up their bathroom, not to find reinforced ceiling hooks for their sex dungeon. It's hard to think of anything less threatening than people settling down. Thats when they stop going out and picking up strangers and dancing on tables and doing all the things that scare the straights if they're flipping through the channels and come across a pride parade on the news.


I am sure there are plenty of heterosexual couples who go out to get ceiling hooks for their sex dungeon.

Well probably not every weekend.

[Brown]

News flash, from the Des Moines Register (http://www.desmoinesregister.com/apps/pbcs.dll/article?AID=/20070913/NEWS09/709130389/1001/NEWS):A conservative political activist is demanding that the Iowa Legislature impeach Polk County District Judge Robert Hanson, who ruled in August that the state's gay-marriage ban is unconstitutional.

Bill Salier, a Nora Springs farmer and former Republican candidate for U.S. Senate, said Wednesday that he is passing around a petition seeking the judge's impeachment. Salier said Hanson's ruling is the latest example of judges abusing their power in order to impose their personal beliefs on Americans.

"He's advancing what he wants to be the law, but he cannot pass law because he is not a representative or a senator or a governor," Salier said. "It's a malfeasance of his office, and he needs to be removed for it."
Well, hello, Salier!

All right, that was a cheap shot, but this isn't: Chances are excellent that, based upon this "activist's" remarks, he either has not read the ruling that he is so steamed about, or he has not made the first effort to try to understand it.

So not only is he a loudmouth, he's an ignorant loudmouth as well. And the punch line is... (wait for it) ... he's quick to say that anybody who doesn't agree with him is stupid.

According to the Register, the response to his individual's activity has been laughter.

[patrick767]

I'm confused. How is this not the very thing the judicial branch should be deciding? It concerns individual rights as they relate to the constitution (state constitution in this case).

The courts have long existed as a check on the power of the majority to deny the rights of the minority. That is one of the most important purposes that they serve. Yet the Right would label any rulings they don't agree with as inappropriate "legislating from the bench" by "activist judges". Isn't this claim completely ridiculous? Without so-called activist judges, what would have become of America's civil rights era? Many of the most important breakthroughs in rights have been the result of judicial rulings. Judges help prevent the tyranny of the majority.

By design, the only way to overcome these rulings is to change the constitution. Unfortunately some states have done just that, but at least such a move makes sense from a governmental perspective.

[Cleon]

I'm confused. How is this not the very thing the judicial branch should be deciding?

It's really very simple.

When the judge rules in your favor, he is Upholding The Law.
When the judge rules against you, he is an Activist Judge who is Legislating From The Bench.

Any questions?

[Miss Anthrope]

It's really very simple.

When the judge rules in your favor, he is Upholding The Law.
When the judge rules against you, he is an Activist Judge who is Legislating From The Bench.

Any questions?

Still awesome, I see!

[Terry]

And if the legislature pass a gay rights bill, then obviously it needs to be vetoed by the governor, because "the people should decide".

[Random]

It’s bigotry, plain and simple. Sure they have a wide variety of arguments to back up their position, but the arguments are all either stupid or depend on untestable “Religious” beliefs. And the bible thumpers don’t impress me at all. While they are willing to criss-cross the country trying to ban gay marriage, I have yet to see them devote similar resources to banning shellfish, polyester, or credit cards. This is not obeying the word of God, this is hating gays and using the word of God as an excuse.

[DoubtingStephen]

This is not obeying the word of God, this is hating gays and using the word of God as an excuse.

At our house we call this Christianity, one of a wide range of One True Religions.

[Brown]

Further update:

According to the Des Moines Register (http://www.desmoinesregister.com/apps/pbcs.dll/article?AID=/20080116/NEWS/80116017/1001), a group has decided to try to push the Iowa Legislature toward a constitutional amendment to keep those disgusting homos in their place ... I mean, to prevent same-sex unions.

To emphasize that their convictions are based upon something other than evidence of need for such an amendment, the protesters are including a "prayer walk."

Some have characterized the "prayer walk" as an inappropriate attempt to influence the Iowa Supreme Court. That's actually quite funny. Knowing the members of the Supreme Court, the effect that this event is likely to have on them is about as close to zero as can be. Not a one of them will let fear of impeachment, lack of retention or other political stress influence their analysis of the case. That's just not how this court does business.

A few years ago, the Iowa appellate courts made some high-profile decisions in a case that received nation-wide attention. There was considerable protesting at the time, with public demonstrations. There were letter-writing campaigns to influence the judges' decisions. And the Iowa judges did what they thought was right, even as unpopular as it was. Although lay commentators around the country lined up against them, the Iowa judges said they decided according to the law, and they ignored the demonstrators and letters. One judge was quoted in the local newspaper as saying that he would read enough of a letter to see what it was about, and if it pertained to a pending matter, he would unceremoniously throw it into the trash. The Iowa decision eventually held up, and the case was at an end, despite the outcome being highly unpopular. (Read a brief summary of this case at the Time Magazine (http://www.time.com/time/magazine/article/0,9171,978221,00.html) web site.) In light of this history, it is unlikely that a well-mannered public demonstration will have any effect upon consideration of the legal issues that the Court must face.

[Brown]

Further Update:

The Iowa Supreme Court's decision is expected tomorrow, 3 April 2009.

[Kthulhut Fhtagn]

Just a reminder: The decision can be found here (http://www.desmoinesregister.com/assets/pdf/D284196830.PDF).

"Page Not Found"

[GreyICE]

"Page Not Found"

Please note dates. September != April.

[Upchurch]

And 2009 > 2007

[Kthulhut Fhtagn]

Please note dates. September != April.

I'm attempting to bring it to the attention of someone so that, just maybe, someone will actually have another link to the ruling so that I can read it. Next time I'll remember just to keep my mouth shut and not be able to learna damn thing. :rolleyes:

[marksman]

if you thinks this is confusing, as a New York lawyer why his Court of Appeals is higher than his Supreme Court.

Because, in NY, the "Supreme Court" only references it being "supreme" to other trial-level courts, like civil court, traffic court, housing court, village court, etc. See? That wasn't confusing at all.

New York simply set up its court systems in the 1600's, well before the US Constitution declared the Judiciary to be embodied in a "Supreme Court of the United States" with the trial courts below it.

In most States the trial court is the "Superior Court", which is inferior to the Appellate Courts (which are inferior to the Supreme Court). They are called that because they are "superior" to the other trial courts. New York just picked "supreme" instead of "superior".

The federal courts are the least confusing. They named their courts after jurisdictions. The lower courts accept all cases in a judicial district and this are called "District Courts". The appellate courts are divided into circuits and are thus called "Circuit Courts". And they are all inferior to the highest court in the land, the "Supreme Court". (Well, except there are separate Bankruptcy Courts in each district... okay. It's a little confusing.)

[Brown]

The link to where the opinion is expected to be is:

http://www.iowacourts.gov/Supreme_Court/Opinions/

Click "Most Recent Opinions."

As of this writing, the opinion is not there yet. There is a notice, however, that an opinion in the case of Varnum v. Brien is expected to be filed on April 3.

As indicated in a story in the Des Moines Register (http://www.desmoinesregister.com/article/20090402/NEWS/90402007/1001), the Court is gearing up for the inevitable protests, whatever the result may be.The judicial building and the surrounding grounds “are not public forums for private use,” court administrators said in a written statement. “The judicial branch reserves the right to restrict private activities in the building and on its adjoining grounds to ensure the administration of justice at all stages is free from disruption, interference, and undue influence.”

Activities such as press conferences, rallies and other public gatherings will be confined to the lower terrace on the building’s north end, and the public sidewalk adjacent to Court Avenue, court administrators said. Access to the building must remain “open and unobstructed at all times,” the statement said.When a decision involving intense emotion and heightened public interest is decided, news organizations and political activists rush to report what the Court said. This often leads to misleading reporting, because it may take hours to give a court opinion due consideration and analysis.

Nevertheless, chances are that folks will look first at the cover page of the opinion. "AFFIRMED" means that the lower court's decision was upheld and prohibitions on gay marriage are unconstitutional under the Iowa constitution. But if the result is anything else ("REVERSED AND REMANDED," AFFIRMED IN PART, REVERSED IN PART AND REMANDED," etc.), then that means: You have to read the opinion to see what the Court did. It does NOT necessarily mean that the gay marriage ban is constitutional.

Those skimming the opinion are also usually interested in how many justices voted each way. In Iowa, there are split decisions, just as there are in the US Supreme Court. But Iowa has a history of trying to issue unanimous opinions in as many cases as possible. (A few years ago, Chief Justice Roberts announced that he would try to achieve more uniformity of assent to opinions from the US Supreme Court. So far, he has failed. But Iowa has a history of success.)

If the decision is "AFFIRMED," I think it is possible but tending toward unlikely that the decision will be unanimous. If the decision is anything else, I think it is possible but moderately likely that the decision will be unanimous.

[jj]

Of course the judge will be harshly villified.

A losing district attorney commented, after the judge ruled, that this matter should not be decided by a judge.

Yeah, so WHO is supposed to rule on matters of law? Pat Robertson?

[ponderingturtle]

Yeah, so WHO is supposed to rule on matters of law? Pat Robertson?

By who ever makes the right decision obviously.

[Upchurch]

Iowa court backs same-sex marriage (http://www.politico.com/blogs/bensmith/0409/Iowa_court_backs_samesex_marriage.html)

[Alt+F4]

The Iowa Supreme Court says the state's same-sex marriage ban violates the constitutional rights of gay and lesbian couples, making it the third state where gay marriage is legal.

In a unanimous ruling issued Friday, the court upheld a 2007 Polk County District Court judge's ruling that the law violated the state constitution.

Does this mean gay marriage is legal in Iowa immediately, as in today?

[Upchurch]

Does this mean gay marriage is legal in Iowa immediately, as in today?
Oh, no! All those poor heterosexual people whose marriages are suddenly meaningless! Won't somebody think of the straight people?

[Upchurch]

More (http://www.msnbc.msn.com/id/30027685/)
Court rules dictate that the decision will take about 21 days to be considered final, and a request for a rehearing could be filed within that period. That means it will be at least several weeks before gay and lesbian couples can seek marriage licenses.

But Polk County Attorney John Sarcone said the county attorney's office will not ask for a rehearing, meaning the court's decision should take effect after that three-week period.

[Alt+F4]

Oh, no! All those poor heterosexual people whose marriages are suddenly meaningless! Won't somebody think of the straight people?

Good day for the divorce lawyers though....

Bravo Hawkeyes! :cheerleader2

[Brown]

As has been reported, the cover page says "AFFIRMED."

The decision was UNANIMOUS.

The number of pages of the opinion was 69. I'm sure that was a conicidence.

I have the decision in front of me. I have read it once, and will read it again before commenting in detail. I note, however, that the Court hits many of the questions discussed in this thread.

In a sense, the Court went further than Judge Hanson. In particular, the Court went out of its way to mention religious objections to same-sex marriage (see the discussion beginning on page 63). Further, the Court dropped a big fat hint to the legislature saying, don't try to legislate this decision out of the books; that won't work. The only body that can overturn this decision is the People, by amending the Constitution.

[Alt+F4]

The only body that can overturn this decision is the People, by amending the Constitution.

Makes me wonder what the Mormons are planning now.

[The Central Scrutinizer]

Iowa court backs same-sex marriage (http://www.politico.com/blogs/bensmith/0409/Iowa_court_backs_samesex_marriage.html)


"It's, quite frankly, a disaster," said Brian English, a spokesman for the Iowa Family Policy Center, a nonprofit research and educational organization committed to strengthening the family.
"Obviously, we're extremely disappointed," he said. "We're saddened. Perhaps a little bit surprised in the unanimous decision that the court handed down."
English, who said opponents of gay marriage prayed outside the courthouse Friday as they awaited the court's decision, already has begun lobbying the legislature for an Iowa Marriage Amendment.


I guess they didn't pray hard enough?

Or God is gay.

I report, you decide.

[Cleon]

Yay for Iowa!


...Now there's a phrase you don't use every day...

[linusrichard]

Thank you, Brown, for filling this thread with what the kids these days are calling "win."

My friend and classmate, who follows the gay marriage fight very closely in every state, informs me that Iowa has a relatively difficult constitution to amend (that is, it can't be amended simply by referendum). So this decision should "stick" a little longer than, say, California's. As in, permanently, we may hope.

[Brown]

One of my dictums is: "Reaction to news is not news."

This dictum is a criticism of local news organizations, particular local television news organizations, that need video to make up their daily programs. Whenever there is a momentous event of any kind, some schmuck reporter selects people off the street and asks for their reaction to the event. During the news organization's broadcast, there is a story about the event itself (which IS news), followed by "public reaction" (which is NOT news).

Today, however, reaction to the news of the Iowa Supreme Court's decision does appear to be news.

There seems to be a pervasive theme in the reactions of those who disagree with the decision: the disagreement is based heavily, if not exclusively, upon religious grounds.

To paraphrase Justice Cady, the argument that "God says so" carries no weight in a court of law.

The reaction to news is news here, because true colors are being shown. All this talk about secular justification for the Iowa statute is largely, if not exclusively, pretense. The basic objections to equal treatment of gays are religious. In the minds of many, it is the State's job to enforce the will of the Almighty--as they see it.

[WildCat]

One of my dictums is: "Reaction to news is not news."

This dictum is a criticism of local news organizations, particular local television news organizations, that need video to make up their daily programs. Whenever there is a momentous event of any kind, some schmuck reporter selects people off the street and asks for their reaction to the event. During the news organization's broadcast, there is a story about the event itself (which IS news), followed by "public reaction" (which is NOT news).

Today, however, reaction to the news of the Iowa Supreme Court's decision does appear to be news.

There seems to be a pervasive theme in the reactions of those who disagree with the decision: the disagreement is based heavily, if not exclusively, upon religious grounds.

To paraphrase Justice Cady, the argument that "God says so" carries no weight in a court of law.

The reaction to news is news here, because true colors are being shown. All this talk about secular justification for the Iowa statute is largely, if not exclusively, pretense. The basic objections to equal treatment of gays are religious. In the minds of many, it is the State's job to enforce the will of the Almighty--as they see it.
Great job Brownie!

And way to go Iowa SC!

[Brown]

Justice Mark Cady authored the opinion. He may take fire for being the author, but as the opinion is unanimous (and since Justice Cady's term runs through 2016), other members of the Court are likely to feel some displeasure as well.

It is noteworthy that the opinion is in the name of Justice Cady and not an anonymous "per curium" (by the Court) opinion. It shows a certain degree of integrity to put one's name on a document that will raise the ire of thousands of people.

The opinion begins, as do many judicial opinions, by reciting the facts of the case, how the case got to the district court, how it proceeded through the district court, and how it got to the Supreme Court.

The opinion then discusses, as do many judicial opinions, the legal standard of review. In this case, the ruling can be upheld only if the plaintiffs were entitled to prevail as a matter of law. If there was an issue of material fact, then the matter would have to be sent back to the district court for additional factfinding.

Part III of the opinion is where things start to get interesting. Fully aware that various citizens and commentators will brand the opinion as "activist" merely because they disagree with the result, Justice Cady offers a brief yet polite lecture about the Supreme Court's role. At times, the Iowa Supreme Court's opinion reads less like a legal opinion and more like a Civics textbook: The Iowa Constitution is the cornerstone of governing in Iowa. Like the United States Constitution, the Iowa Constitution creates a remarkable blueprint for government. It establishes three separate, but equal, branches of government and delineates the limited roles and powers of each branch. … Among other basic principles essential to our form of government, the constitution defines certain individual rights upon which the government may not infringe. See Iowa Const. art. I (“Bill of Rights”). Equal protection of the law is one of the guaranteed rights. See Iowa Const. art. I, § 6. All these rights and principles are declared and undeniably accepted as the supreme law of this state, against which no contrary law can stand. See Iowa Const. art. XII, § 1 (“This constitution shall be the supreme law of the state, and any law inconsistent therewith, shall be void.”). Recalling the US Supreme Court decision of Marbury v. Madison, in which Chief Justice John Marshall articulated the power of the judicial branch to declare a statute unconstitutional, Justice Cady pointed out that the principle of judicial review exists in the State of Iowa as well: "A statute inconsistent with the Iowa Constitution must be declared void, even though it may be supported by strong and deep-seated traditional beliefs and popular opinion."

The notion of tradition appears many places in the opinion. Justice Cady invests considerable effort in describing that an idea may be held for a very long time, but that does not necessarily mean it is constitutional: In fulfilling this mandate under the Iowa Constitution, we look to the past and to precedent. We look backwards, not because citizens' rights are constrained to those previously recognized, but because historical constitutional principles provide the framework to define our future as we confront the challenges of today.

Our responsibility, however, is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time. The framers of the Iowa Constitution knew, as did the drafters of the United States Constitution, that "times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress," and as our constitution "endures, persons in every generation can invoke its principles in their own search for greater freedom" and equality. Turning to the issue of Equal Protection, Justice Cady reiterated that the past does not control the future, this time quoting Justice Oliver Wendell Holmes: As Justice Oliver Wendell Holmes poignantly said, "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past." As did Judge Hanson, Justice Cady points out that Iowa has a history of being progressive, often deciding questions ahead of (and more forward-looking than) the US Supreme Court: In the first reported case of the Supreme Court of the Territory of Iowa, In re Ralph, 1 Morris 1 (Iowa 1839), we refused to treat a human being as property to enforce a contract for slavery and held our laws must extend equal protection to persons of all races and conditions. 1 Morris at 9. This decision was seventeen years before the United States Supreme Court infamously decided Dred Scott v. Sandford, [citation omitted], which upheld the rights of a slave owner to treat a person as property. Similarly, in Clark v. Board of Directors, 24 Iowa 266 (1868), and Coger v. North West. Union Packet Co., 37 Iowa 145 (1873), we struck blows to the concept of segregation long before the United States Supreme Court’s decision in Brown v. Board of Education [citation omitted]. Iowa was also the first state in the nation to admit a woman to the practice of law, doing so in 1869. Admission of Women to the Bar, 1 Chicago Law Times 76, 76 (1887). Her admission occurred three years before the United States Supreme Court affirmed the State of Illinois' decision to deny women admission to the practice of law, see Bradwell v. Illinois [citation omitted], , and twenty-five years before the United States Supreme Court affirmed the refusal of the Commonwealth of Virginia to admit women into the practice of law, see Ex parte Lockwood [citation omitted]. In each of those instances, our state approached a fork in the road toward fulfillment of our constitution's ideals and reaffirmed the "absolute equality of all" persons before the law as "the very foundation principle of our government." See Coger, 37 Iowa at 153. Words like this ought to make every Iowan's chest puff up. Those who would seek to amend the Constitution to deny gay couples rights that are afforded to straight couples will have to admit that such an amendment would be a giant step backward for the State.

In a footnote, however, Justice Cady remembers that not all of the Iowa Supreme Court's decisions have been so supportive of civil rights. He cites a case from 1910 that authorized discrimination against women in the conduct of business. But he added poetically that the Iowa cases on slavery, segregation and women's rights ……do, however, reflect this court has, for the most part, been at the forefront in recognizing individuals' civil rights. The path we have taken as a state has not been by accident, but has been navigated with the compass of equality firmly in hand, constructed with a pointer balanced carefully on the pivot of equal protection. Justice Cady then discusses degrees of scrutiny that are applicable in equal protection cases. Laws, by their nature, treat people differently. In most cases, an equal protection analysis requires that there be a good reason, or "rational basis," for such disparate treatment. When a fundamental right is involved, however, "strict scrutiny" applies, and the different treatment is allowable under the equal protection clause if there is a DAMN good reason.

But there is also a level of "intermediate scrutiny" between the two. When applying intermediate scrutiny to a statute, the Court looks at whether there is a very good reason for the disparate treatment. There must be an important governmental interest at stake, and the difference in treatment "must be genuine and must not depend on broad Generalizations."

In Iowa, equal protection cases based upon gender or illegitimacy have usually involved intermediate scrutiny.

Before getting to what level of scrutiny will be applied, the Court discussed the facts in more detail. At this point, Justice Cady provided some commentary that may be ammunition for those who see the decision as "activist": Our law recognizes a distinction between "adjudicative" and "legislative" facts…. Most often, judicial decision-making is predicated solely on a finding of facts relating to the parties and their particular circumstances…. These facts are referred to as "adjudicative" facts [and] the resolution of a dispute over these facts is done within the framework of a set of rules to determine the admissibility of evidence tending to prove such facts.... At times, however, judicial decision-making involves crafting rules of law based on social, economic, political, or scientific facts…. These facts have been denominated as "legislative" facts and become relevant to judicial decision-making when courts are required to decide the constitutionality of a statute, among other occasions. [As] a result, judicial decision-making in the context of constitutional issues can involve the "process of adapting law to a volatile social-political environment." Some may seize upon this passage as showing that the Court is setting itself up as a legislature, by considering "legislative facts." Just Justice Cady goes on to point out that "legislative facts" is just a name, and the same concept is also called "constitutional facts." But to some, this may still sound like a power grab by the Court: Importantly, constitutional facts are not subject to the rules of evidence when presented by a party in the form of witness testimony. Conceptually, testimony relating to constitutional facts is only presented as authority for the legal decision the court is required to make, and it would be inconsistent to apply formal rules of evidence to facts in the form of testimony that a court can independently obtain and consider in deciding the case. As I mentioned in a previous post in this thread, "legislative factfinding" raises some concerns because it is not subject to the rules of evidence and because such factfinding has been used to find "facts" that are at odds with reality. Judge Cady recognizes this criticism, however, effectively saying that a court may not pull constitutional facts from thin air: Such facts are generally disputable, and courts must rely on the most compelling data in order to give needed intellectual legitimacy to the law or rule crafted by the court. Principles of equal protection generally require treating similarly situated people the same way. Addressing the question of what "similarly situated" means, Justice Cady dismisses a circular argument that occasionally rears its head: In considering whether two classes are similarly situated, a court cannot simply look at the trait used by the legislature to define a classification under a statute and conclude a person without that trait is not similarly situated to persons with the trait. Polk County, charged with the duty of defending the statute, argued that same-sex couples and opposite-sex couples are not "similarly situated." But the Court disagreed. Therefore, with respect to the subject and purposes of Iowa's marriage laws, we find that the plaintiffs are similarly situated compared to heterosexual persons. Plaintiffs are in committed and loving relationships, many raising families, just like heterosexual couples. Moreover, official recognition of their status provides an institutional basis for defining their fundamental relational rights and responsibilities, just as it does for heterosexual couples. Society benefits, for example, from providing same-sex couples a stable framework within which to raise their children and the power to make health care and end-of-life decisions for loved ones, just as it does when that framework is provided for opposite-sex couples.

In short, for purposes of Iowa’s marriage laws, which are designed to bring a sense of order to the legal relationships of committed couples and their families in myriad ways, plaintiffs are similarly situated in every important respect, but for their sexual orientation. One of the arguments presented to the Court was that there is no prohibition against homosexuals marrying. They just cannot marry each other. Justice Cady responded:It is true the marriage statute does not expressly prohibit gay and lesbian persons from marrying; it does, however, require that if they marry, it must be to someone of the opposite sex. Viewed in the complete context of marriage, including intimacy, civil marriage with a person of the opposite sex is as unappealing to a gay or lesbian person as civil marriage with a person of the same sex is to a heterosexual. Thus, the right of a gay or lesbian person under the marriage statute to enter into a civil marriage only with a person of the opposite sex is no right at all.
…
By purposefully placing civil marriage outside the realistic reach of gay and lesbian individuals, the ban on same-sex civil marriages differentiates implicitly on the basis of sexual orientation. Returning to the question of what degree of scrutiny is required, Justice Cady's opinion wavers. This may suggest that the question of degree of scrutiny may have been a divisive point among the members of the Court, and Justice Cady had to provide a degree of waver so that the opinion would remain unanimous.

Although Justice Cady discusses at length how the appropriate level is to be determined, in the end, he leaves the issue open: Because we conclude Iowa's same-sex marriage statute cannot withstand intermediate scrutiny, we need not decide whether classifications based on sexual orientation are subject to a higher level of scrutiny.This is somewhat similar to what the US Supreme Court did in the recent Second Amendment case, District of Columbia v. Heller, in which Justice Scalia punted on the question of what level of scrutiny applies to US Constitutional rights under the Second Amendment: Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home "the most preferred firearm in the nation to 'keep' and use for protection of one's home and family," … would fail constitutional muster. The standard of scrutiny matters. As a general matter, when a law is subject to a "rational basis" (good reason) level of scrutiny, it is very likely to be constitutionally permitted. When a law is subject to a "strict scrutiny" analysis (DAMN good reason), the law is far more likely to be found unconstitutional. Since discrimination against gays is almost certainly going to find its way into the court system again, the district court judges are going to be a tad hampered by not knowing what standard of scrutiny ought to be applied.

Applying intermediate scrutiny, Justice Cady addressed the rationales put forward to support the same-sex marriage ban. Justice Cady called the argument that government should maintain "traditional" marriage for its own sake an "empty analysis." In regard to whether the ban promotes an optimal environment to raise children, Justice Cady acknowledged that this is an "important governmental objective." Expert opinions that held that different-sex marriages are better than same-sex marriages were "thoughtful and sincere," [but] were largely unsupported by reliable scientific studies."

"If the marriage statute was truly focused on optimal parenting," Justice Cady observed, "many classifications of people would be excluded, not merely gay and lesbian people." Like who? Child abusers, sexual predators, parents neglecting to provide child support, and violent felons can all be straight, can all get married and can all be really horrible parents. Besides being unable to keep unfit people for being parents, the statute also is flawed because it protects the rights of couples who have no intention or ability to have children… as long as they're opposite-sex couples.

Another justification offered in support of the statute was that it promotes procreation. Assuming for the moment that the State of Iowa has such an interest, is it a good reason for the statute? Justice Cady felt the link between the statute and procreation was tenuous:Conceptually, the promotion of procreation as an objective of marriage is compatible with the inclusion of gays and lesbians within the definition of marriage. Gay and lesbian persons are capable of procreation. Thus, the sole conceivable avenue by which exclusion of gay and lesbian people from civil marriage could promote more procreation is if the unavailability of civil marriage for same-sex partners caused homosexual individuals to "become" heterosexual in order to procreate within the present traditional institution of civil marriage. The briefs, the record, our research, and common sense do not suggest such an outcome.Someone—it's not clear whether it was Polk County or an "amicus" (a "friend of the Court" that offers written arguments to help the Justices)—argued that recognizing same-sex marriage will in some way destabilize opposite-sex marriages. Justice Cady gave the argument really short shrift:While the institution of civil marriage likely encourages stability in opposite-sex relationships, we must evaluate whether excluding gay and lesbian people from civil marriage encourages stability in opposite-sex relationships. The County offers no reasons that it does, and we can find none. The stability of opposite-sex relationships is an important governmental interest, but the exclusion of same-sex couples from marriage is not substantially related to that objective. (emphasis by the Court)Another justification for the statute was conserving resources. Basically, the argument was that the State currently gives a tax benefit to the way heterosexual husbands and wives, and the State cannot afford to give tax benefits to everyone. Justice Cady makes short work of this argument:Excluding any group from civil marriage—African-Americans, illegitimates, aliens, even red-haired individuals—would conserve state resources in an equally "rational" way. Yet, such classifications so obviously offend our society's collective sense of equality that courts have not hesitated to provide added protections against such inequalities.Justice Cady wound up the analysis as follows: Having examined each proffered governmental objective through the appropriate lens of intermediate scrutiny, we conclude the sexual-orientation-based classification under the marriage statute does not substantially further any of the objectives. While the objectives asserted may be important (and many undoubtedly are important), none are furthered in a substantial way by the exclusion of same-sex couples from civil marriage. Our equal protection clause requires more than has been offered to justify the continued existence of the same-sex marriage ban under the statute. What follows then is something extraordinary.

It is unusual for a Supreme Court opinion to go out of its way to address arguments that are not properly before it. I can think of no previous Iowa Supreme Court opinion in which the Court has ever done anything like this.

Basically, Justice Cady addresses what appears to be the REAL reason underlying the same-sex marriage ban: religion.Now that we have addressed and rejected each specific interest advanced by the County to justify the classification drawn under the statute, we consider the reason for the exclusion of gay and lesbian couples from civil marriage left unspoken by the County: religious opposition to same-sex marriage. The County's silence reflects, we believe, its understanding this reason cannot, under our Iowa Constitution, be used to justify a ban on same-sex marriage.Unsaid, but implied, is that the Court agrees that the County was right not to even urge it as a justification.

Justice Cady continues: While unexpressed, religious sentiment most likely motivates many, if not most, opponents of same-sex civil marriage and perhaps even shapes the views of those people who may accept gay and lesbian unions but find the notion of same-sex marriage unsettling.
…
It is quite understandable that religiously motivated opposition to same-sex civil marriage shapes the basis for legal opposition to same-sex marriage, even if only indirectly. Religious objections to same-sex marriage are supported by thousands of years of tradition and biblical interpretation. The belief that the "sanctity of marriage" would be undermined by the inclusion of gay and lesbian couples bears a striking conceptual resemblance to the expressed secular rationale for maintaining the tradition of marriage as a union between dual-gender couples, but better identifies the source of the opposition. Whether expressly or impliedly, much of society rejects same-sex marriage due to sincere, deeply ingrained—even fundamental—religious belief.

Yet, such views are not the only religious views of marriage. As demonstrated by amicus groups, other equally sincere groups and people in Iowa and around the nation have strong religious views that yield the opposite conclusion.In the case of a religious dispute, is it government's job to step in to resolve the religious dispute? Justice Cady answers: This contrast of opinions in our society largely explains the absence of any religion-based rationale to test the constitutionality of Iowa's same-sex marriage ban. Our constitution does not permit any branch of government to resolve these types of religious debates and entrusts to courts the task of ensuring government avoids them. See Iowa Const. art. I, § 3 ("The general assembly shall make no law respecting an establishment of religion …."). The statute at issue in this case does not prescribe a definition of marriage for religious institutions. Instead, the statute declares, "Marriage is a civil contract" and then regulates that civil contract. Iowa Code § 595A.1. Thus, in pursuing our task in this case, we proceed as civil judges, far removed from the theological debate of religious clerics, and focus only on the concept of civil marriage and the state licensing system that identifies a limited class of persons entitled to secular rights and benefits associated with civil marriage. (emphasis by the Court)Some have said that "separation of church and state" is a myth of US Constitutional law. In Iowa, it is no myth: State government can have no religious views, either directly or indirectly, expressed through its legislation. [Authority.] This proposition is the essence of the separation of church and state.

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. This is a most striking passage, and perhaps most injudicious. Instead of dealing with legal issues, Justice Cady offers a gentle lecture that Iowa is not governed by laws that implement religious beliefs, no matter how many people hold those beliefs or how deeply they are held. Iowa laws are governed by reason.

The concluding words of the opinion are: Iowa Code section 595.2 is unconstitutional because the County has been unable to identify a constitutionally adequate justification for excluding plaintiffs from the institution of civil marriage. … Consequently, the language in Iowa Code section 595.2 limiting civil marriage to a man and a woman must be stricken from the statute, and the remaining statutory language must be interpreted and applied in a manner allowing gay and lesbian people full access to the institution of civil marriage.

[parky76]

An "activist judge" has ruled that the Iowa gay panic sanctity of marriage law is unconstitutional.
Link (http://www.chicagotribune.com/news/chi-ap-ia-samesexmarriage,0,6837781.story?page=2&coll=chi-news-hed)

I am not a fan of same-sex marriage. I think marriage should between a man and a woman and same-sex couples should get EVERYTHING but the title of married.

That said, if the judges in Iowa feel that a ban on gay marriage violates the Iowa state constitution, then that is their job and I respect that.

I suggest the people of Iowa, if they do not like this ruling, change their constitution.

[Tsukasa Buddha]

I am not a fan of same-sex marriage. I think marriage should between a man and a woman and same-sex couples should get EVERYTHING but the title of married.

Reason being? And such a scenario is untenable in practice. For example, a case in New Jersey showed this when a company denied health care coverage to "civil unioned" people that it would give to "married" people.

[Rika]

seperate but equal is considered unequal, Parky, for .. well, historical reasons.

That said...

[Brown]

The Almighty is already expressing disapproval with the ruling. In Iowa today, it is ... raining.

In April.

There might even be flooding. Flooding hasn't occurred in Iowa for ages and ages, well, almost a year now.

When the weather warms up, there might even be tornadoes.

[Brown]

Damn! I should've applied for the million dollars, because I could have predicted with 100 percent accuracy the following (from various news services):Republican National Committee Chairman Michael Steele released a statement from Washington, D.C., calling the court's decision "another example of judicial activism currently threatening family values in America."This shows that Steele (1) has not read the decision or (2) does not understand the decision, or most likely (3) both.

[WildCat]

Damn! I should've applied for the million dollars, because I could have predicted with 100 percent accuracy the following (from various news services):This shows that Steele (1) has not read the decision or (2) does not understand the decision, or most likely (3) both.
Or (4) is pandering to religious right and thus taking the GOP further down the path to irrelevancy.

[gdnp]

I vote #4. Although to be fair to the Republicans, these social issues are the only area where they have gotten any traction with the voters. Which is why Democrats did what they could to keep gay marriage off the ballot in 2008.

[Matthew Best]

I just wanted to say thanks to Brown for all his excellent posts in this thread. I feel like I've had a (free!) legal education.

[gdnp]

I just wanted to say thanks to Brown for all his excellent posts in this thread. I feel like I've had a (free!) legal education.

Seconded.

ETA: It is ironic that the posts by Brown are a superb addition to a sceptic's forum whereas the posts by Skeptic in the other thread are...well...the color is brown...

[Tin Foil Timothy]

I am not a fan of same-sex marriage. I think marriage should between a man and a woman and same-sex couples should get EVERYTHING but the title of married.

That said, if the judges in Iowa feel that a ban on gay marriage violates the Iowa state constitution, then that is their job and I respect that.

I suggest the people of Iowa, if they do not like this ruling, change their constitution.

Not like you to be prejudiced sparky. I'm disappointed.

[Dr Adequate]

So ... Article IV, section 1:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Does that mean that if you get gay-married in Iowa, you remain gay-married in Utah? If not, why not?

[Tsukasa Buddha]

So ... Article IV, section 1:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.Does that mean that if you get gay-married in Iowa, you remain gay-married in Utah? If not, why not?

The Defence of Marriage Act rejected this... Not sure why it isn't unconstitutional, but there you have it.

[Dr Adequate]

The Defence of Marriage Act rejected this... Not sure why it isn't unconstitutional, but there you have it. How do we know that it isn't unconstitutional? Has there been a case yet?

[Random]

How do we know that it isn't unconstitutional? Has there been a case yet?

Don't think there has been a case yet, but it is only a matter of time. Once it hits the courts, it will be very difficult to argue that a law that says states may ignore contracts from other states is constitutional. On the other hand, Bush vs Gore showed that the US Supreme Court is not immune to fitting legal arguments to a preferred outcome.

[Alt+F4]

For example, a case in New Jersey showed this when a company denied health care coverage to "civil unioned" people that it would give to "married" people.

Yup, that was a big mess. The insurance company couldn't figure out how a civil union was different than a marriage in practice, but since the State of New Jersey had given them different nomenclatures the insurance company felt it had the legal right to deny the civil unioned couple heath insurance.

Similar situation if you work for the City of New York. If you're married the City will cover your spouse's health insurance. If you're in a domestic partnership (which is somehow different or the same as a civil union - I can't tell :boggled:) the employee has the partner's health insurance costs added to their income.

So much for separate but equal.

[linusrichard]

Don't think there has been a case yet, but it is only a matter of time. Once it hits the courts, it will be very difficult to argue that a law that says states may ignore contracts from other states is constitutional. On the other hand, Bush vs Gore showed that the US Supreme Court is not immune to fitting legal arguments to a preferred outcome.

There oughtta be a law that says that a law called the "Defense of Marriage Act" can't be used to invalidate a legal marriage. Oh well.

On a more serious note, this is one reason I hate referring to marriage as a contract. Yes, it's like a contract in some respects. Yes, it is sometimes treated like a contract. But there are several reasons why it doesn't make sense to call it a contract. And in this case, if you treat marriage as a contract, you eliminate any constitutional problem with giving full faith and credit to another state's marriage, since there is no constitutional problem in general with a state refusing to give effect to a contract or contract provision that would be valid in another state.

[gdnp]

There oughtta be a law that says that a law called the "Defense of Marriage Act" can't be used to invalidate a legal marriage. Oh well.

On a more serious note, this is one reason I hate referring to marriage as a contract. Yes, it's like a contract in some respects. Yes, it is sometimes treated like a contract. But there are several reasons why it doesn't make sense to call it a contract. And in this case, if you treat marriage as a contract, you eliminate any constitutional problem with giving full faith and credit to another state's marriage, since there is no constitutional problem in general with a state refusing to give effect to a contract or contract provision that would be valid in another state.

Congratulations on your 1000th post.

However, there is a problem with a state refusing to honor a contract of another state. As noted by Dr. A:

Article IV, section 1:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.

If people could change the rules by crossing state lines there would be chaos.

[linusrichard]

Congratulations on your 1000th post.
Thanks! I didn't even notice.

However, there is a problem with a state refusing to honor a contract of another state. As noted by Dr. A:
A contract is neither a public Act, record, or judicial proceeding.

If people could change the rules by crossing state lines there would be chaos.
Arguably, there is chaos. :)

I'm actually taking a class right now on this very subject. A typical case involves A and B who make a contract in state X, and then there's a suit in state Y, and the contract, or a provision thereof, is illegal in state Y. So the Y court has to decide whether to apply X's law or Y's law, and thus whether to validate or invalidate the contract or provision. If the Constitution required Full Faith & Credit to contracts, this would be a much shorter and easier class.

[pgwenthold]

Damn! I should've applied for the million dollars, because I could have predicted with 100 percent accuracy the following (from various news services):This shows that Steele (1) has not read the decision or (2) does not understand the decision, or most likely (3) both.

You forgot the other option: doesn't care what the decision says.

[pgwenthold]

My favorite part of the decision

"If the marriage statute was truly focused on optimal parenting," Justice Cady observed, "many classifications of people would be excluded, not merely gay and lesbian people." Like who? Child abusers, sexual predators, parents neglecting to provide child support, and violent felons can all be straight, can all get married and can all be really horrible parents. Besides being unable to keep unfit people for being parents, the statute also is flawed because it protects the rights of couples who have no intention or ability to have children… as long as they're opposite-sex couples.


I love this. It really hammers on the "Think of the children!!!!!" nonsense. Basically the court is saying, "You don't worry about the children when it comes to other marriages, why are you singling out gay people?" It clearly indicates the homosexual discrimination.

[rwguinn]

My favorite part of the decision



I love this. It really hammers on the "Think of the children!!!!!" nonsense. Basically the court is saying, "You don't worry about the children when it comes to other marriages, why are you singling out gay people?" It clearly indicates the homosexual discrimination.
One I like is "They can't have childern", yet infertile women (and men) are allowed to marry--as are people who declare an intent NOT to have childern.
Shall we dissolve THEIR marriages?
Where's the popcorn?

[Alt+F4]

The argument against gay marriage basically boils down to, "I don't want gays to get married because I think it's icky." Logically, they have nothing.

[GreyICE]

How do we know that it isn't unconstitutional? Has there been a case yet?

And yet, you cited the reason, Dr A.

So ... Article IV, section 1:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Does that mean that if you get gay-married in Iowa, you remain gay-married in Utah? If not, why not?

Lets review that again:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

It's not going to be a pretty case, shall we say. Congress has proscribed a manner (not at all) and an effect (absolutely none). This may not seem fully within the spirit of the law, and it's really just not, but it's hardly cut and dried.

Believe me, there are, at this very moment, people who in their spare time are researching the intent of every Founding father, as expressed in all letters, official communication, unofficial communication, and private writings, as to the point of that particular clause, and whether this would fall under 'their intent' or not.

[Brown]

As I have mentioned previously, Iowans in modern times resisted efforts to amend the Iowa Constitution to provide equal rights for women. In part, this resistance was grounded in mistrust of trial lawyers who would use such a constitutional amendment to upset the apple cart of Iowa's jurisprudence.

In part, the concern was that women ought to be kept in their place. No kidding. Some of the propaganda used to defeat the State ERA was premised upon maintaining "traditional" and perceived Biblical sexual roles. In other words, some people in the second half of the Twentieth Century actually argued that women should not be awarded equal rights because women were not really equal to men as human beings. God said so, they said.

There were also a few bat-spit crazy folks who said (yelled, would be more like it) that an ERA would give legal rights (gasp!) to those God-cursed sodomites. After all, the amendments said, in effect, that there should be no discrimination on account of "sex" (in one version) or "gender" (in another version). The fear was that such language in the Constitution could encompass sexual orientation.

What a conventional ERA would PROBABLY have done is to convert the Court's standard of scrutiny in gender-based discrimination cases from "intermediate" to "strict."

A few years back, Iowans adopted a more laid-back ERA, recognizing that "All men and women are, by nature, free and equal...." The words "and women" were added. That was the extent of the amendment.

Now Justice Cady quotes that very language as part of the opinion (page 19). He does not rub anyone's face in it, of course, nor does he mention any constitutional amendment to add "and women."

But oh, how the bat-spit crazies are wailing and gnashing their teeth.

Even many in the so-called "mainstream" religions are showing a stunning ignorance about the law of the State and what the opinion actually said.

According to the Des Moines Register (and other sources), Catholic leaders are upset and say that the decision will grievously harm children. From my standpoint, I don't think the Catholic Church has any moral authority to lecture anyone about hurting children.

[ponderingturtle]

A few years back, Iowans adopted a more laid-back ERA, recognizing that "All men and women are, by nature, free and equal...." The words "and women" were added. That was the extent of the amendment.

Interesting that intersexed individuals do not have equal rights in Iowa.

[Dr Adequate]

Lets review that again:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. Yes. Now the question is can Congress "by general Laws prescribe" that no "Faith and Credit" shall be given whatsoever, and that "the Effect thereof" should be zip?

---

Oh, and here's a puzzle. If "Full Faith and Credit" doesn't apply to gay marriage, is there anything to stop someone from marrying one man in Iowa and another man in Vermont?

It would be amusing if DOMA made gay bigamy legal ...

[GreyICE]

Yes. Now the question is can Congress "by general Laws prescribe" that no "Faith and Credit" shall be given whatsoever, and that "the Effect thereof" should be zip? As I already laid out, that's exactly the dilemma. It does not appear to be fitting exactly within the spirit of the wording, but it does appear to be fitting exactly within the most ambiguous interpretations of the wording.



Oh, and here's a puzzle. If "Full Faith and Credit" doesn't apply to gay marriage, is there anything to stop someone from marrying one man in Iowa and another man in Vermont?

It would be amusing if DOMA made gay bigamy legal ... Yes, local state laws. I'd assume that states already have statutes about recognizing marriages made in other states, and if both allow gay marriages, then both are going to recognize the potential bigamist as married.

The DOMA only said that states do not have to recognize gay marriage, not that they MUST NOT.

[KingMerv00]

I am not a fan of same-sex marriage. I think marriage should between a man and a woman and same-sex couples should get EVERYTHING but the title of married.

Sooo...

If it walks, quacks, and swims like a duck, please call it a "duck facsimile"?

[GreyICE]

Sooo...

If it walks, quacks, and swims like a duck, please call it a "duck facsimile"?

Remember: Separate, but equal! Separate, but equal!

I've really never understood that position on the issue, since I'm really having a hard time coming up with an example from history where parallel programs instituted to deal with the thing for two different groups ended up NOT diverging significantly. Hell even male/female sports programs have issues, and there's really really good reasons to keep them separate (as opposed to really non-existent reasons to keep a gay 'not-marriage marriage' and a 'real marriage' separate (and in the language I used, I think we can see where I see THAT going).

[Cobalt]

I am not a fan of same-sex marriage. I think marriage should between a man and a woman and same-sex couples should get EVERYTHING but the title of married.

What difference does the title make if you're giving them the exact same rights anyway?

It seems like you're saying, "You can be married, just not married."

[thesyntaxera]

Interesting that intersexed individuals do not have equal rights in Iowa.

HA! Well this should amuse you...maybe...

Where I work(in Iowa) we had a M to F transexual patient. He was married to a woman when he was a man, and then became a woman and is now married to a man. The thing is he is still pre-op when he got married and was still technically a man. The state however recognized him as a woman because he was in the preparation to become a fully converted male to female.

What I wonder is why the anti-gay lobby doesn't attack situations like that? Why is just the straight up homosexuals?

[ponderingturtle]

HA! Well this should amuse you...maybe...

Where I work(in Iowa) we had a M to F transexual patient. He was married to a woman when he was a man, and then became a woman and is now married to a man. The thing is he is still pre-op when he got married and was still technically a man. The state however recognized him as a woman because he was in the preparation to become a fully converted male to female.

What I wonder is why the anti-gay lobby doesn't attack situations like that? Why is just the straight up homosexuals?

I was talking about intersexed though, not transexuals. That individual always identified as only one sex though.

[linusrichard]

Interesting that intersexed individuals do not have equal rights in Iowa.

Doesn't say "only men and women," just "all men and women." Don't deny the antecedent.

[Sefarst]

My dad voted to ban gay marriage in Georgia while I voted against banning it, but his reasoning was allowing gays to marry would hurt the social security system.

Just to point out someone that doesn't seem to fit into any of the categories all ready listed.

[ponderingturtle]

My dad voted to ban gay marriage in Georgia while I voted against banning it, but his reasoning was allowing gays to marry would hurt the social security system.


A pretty poor arguement though. It is such a small percentage of the population that it will have little effect.

[thesyntaxera]

Well, the wagons are circling.

Iowa Family Policy center(send hate/love mail here)
http://www.ifpc.org/

and it's off shoot-
http://www.letusvoteiowa.com/

Gay right opponents issue warning
http://content.usatoday.net/dist/custom/gci/InsidePage.aspx?cId=press-citizen&sParam=30519257.story

[linusrichard]

A pretty poor arguement though. It is such a small percentage of the population that it will have little effect.

That's not even the reason why it's a terrible argument. You could achieve a comparable result by not allowing redheads to marry, or Muslims, or people whose last names start with "W," or people born in February. That it will (allegedly) save some money doesn't make it okay.

The second reason it's a terrible argument is that people spend a ton of money on weddings, and that is ultimately going to mean more tax revenues, which includes putting money into social security.

[pgwenthold]

According to the Des Moines Register (and other sources), Catholic leaders are upset and say that the decision will grievously harm children. From my standpoint, I don't think the Catholic Church has any moral authority to lecture anyone about hurting children.

The obvious reference aside, I will argue that no homosexual marriage would do more harm to children than did Sister Claire Marie Meyer, the big fat nun I (and hundreds of others) had as our second grade teacher.

So don't think this is just about "priests molesting alter boys." The extent of abuse went a lot further than that.

[Brown]

There are still rumblings about the Iowa Supreme Court's decision, but (as of this writing) the Earth has not opened up and swallowed the State. There has been at least one death threat made against a gay legislator, and some politicians have put forth pig-ignorant approaches, such as "overruling" the Court with an executive order or simply saying that the Court's decision is "only an opinion" and not legally binding in any sense.

[Upchurch]

...or simply saying that the Court's decision is "only an opinion" and not legally binding in any sense.

...


What?

[Cleon]

There are still rumblings about the Iowa Supreme Court's decision, but (as of this writing) the Earth has not opened up and swallowed the State. There has been at least one death threat made against a gay legislator, and some politicians have put forth pig-ignorant approaches, such as "overruling" the Court with an executive order or simply saying that the Court's decision is "only an opinion" and not legally binding in any sense.

Ah, conservatives. They're all for law & order, except when they don't like it.

[Brown]

...


What?From the Des Moines Register (http://www.desmoinesregister.com/article/20090414/NEWS10/904140396/1001/NEWS):"If I have the opportunity to serve as your next governor," Bob Vander Plaats told about 350 people at a rally, "and if no leadership has been taken to that point, on my first day of office I will issue an executive order that puts a stay on same-sex marriages until the people of Iowa vote, and when we vote we can affirm and amend the Constitution."
...
Bill Salier, co-founder of Everyday America, told the crowd that state lawmakers need to thank the Supreme Court justices for their opinion but say that it is merely opinion and that the law is still on the books.Being bat-spit crazy and being pig-ignorant would ordinarily be two strikes against someone, but for publicity hounds, they are an absolute boon.


One wonders: what WILL these folks do if the machinery to amend the Iowa Constitution is engaged and the citizens decide that they don't want to amend the State Constitution to take a giant step backward?

[Dr Adequate]

What? From the same people who brought you: "Evolution is just a theory".

[pgwenthold]

I'm trying to understand the Lt Gov's comments. They make absolutely no sense. At least, they show no indication that he has any clue about how the government works.

"The courts rule that the legislation is unconstitutional. So the governor should issue an executive decree."

Welcome to the world of a dictatorship. Or am I missing something?

My initial thought was, "He wants the Governor to pull a George Wallace?" Recall, Wallace later regretted his actions.

[Cobalt]

Ah, conservatives. They're all for law & order, except when they don't like it.

Kids, you can play this game too!

Ah, (insert political group). They're all for (blank), except for when they don't like it.

[pgwenthold]

I'm wondering if someone closer to the action in Iowa can explain the whole "Let us vote" thing to me. What do they want, a direct referendum for the majority to squash the rights of a minority group? I mean, does Iowa even have state-wide referenda? I remember seeing local initiatives that were sent up, but generally regarding funding issues (to float a bond to pay for schools, or such). I don't remember laws being made by referendum at all.

So what are the "let us vote" people going on about (aside from ignorance of the government)? Mob rule? When can we vote to prevent lefties from getting driver's licenses? I mean, cars in the US are made for right footed people - lefties have to use their weaker foot to accelerate and brake; that makes them a bigger risk on the road; besides, driving is a PRIVELIDGE, not a right.

(ok, I realize that is BS, but it makes about as much sense as the anti-gay arguments)

[Shalamar]

I know some conservatives that think that it is ok for the majority to impose their will on the minority, simply because they don't like the ruling/law/whatever. Its really quite unfortunate, and I really really want to find the reasoning for it.

I am quite in favor of Gay Marriage. I don't see any problems, and it certainly does NOT diminish the marriage I currently have. if that makes me an evil godless heathen liberal out to destroy the United States, then so be it. better that then a true god-fearing american conservative who want to use the constitution of the States/country to QUASH the rights of another group.

And some people wonder why I refuse to become an American Citizen.

[ZirconBlue]

I'm wondering if someone closer to the action in Iowa can explain the whole "Let us vote" thing to me. What do they want, a direct referendum for the majority to squash the rights of a minority group?

Yes, that's exactly what they want. Sadly, many people only want protections for minority positions when they are part of said minority.

[Brown]

I'm trying to understand the Lt Gov's comments. They make absolutely no sense. At least, they show no indication that he has any clue about how the government works.

"The courts rule that the legislation is unconstitutional. So the governor should issue an executive decree."

Welcome to the world of a dictatorship. Or am I missing something?

My initial thought was, "He wants the Governor to pull a George Wallace?" Recall, Wallace later regretted his actions.Did I miss comments buy the Lt. Governor of Iowa (Patty Judge)? The one who proposed the pig-ignorant notion of suspending the Court's decision via executive order was Bob Vander Plaats, who has said he wants to be the next governor and is trying to turn the issue into something upon which he can mount a campaign.

The Governor of the Iowa, Chet Culver, has said he is not going to do anything about the Supreme Court's decision. Thier is virtually no risk that he will try to "pull a Wallace" or otherwise defy the Court.

Some see Culver as vulnerable in the next election, and so it is no surprise that various wind-bags are trying to find a way to assert that the decision was somehow his "fault."

Culver's position (which is legally sound, unlike Vander Plaats's) is that it would be a waste of taxpayer money to try to oppose the decision by way of further court challenges or grandstanding stunts. Curiously, his opponents like to paint themselves as thrifty fiscal conservatives, and yet they seem to urge courses that will add to the citizens' tax bills ... unnecessarily.

[pgwenthold]

Did I miss comments buy the Lt. Governor of Iowa (Patty Judge)? The one who proposed the pig-ignorant notion of suspending the Court's decision via executive order was Bob Vander Plaats, who has said he wants to be the next governor and is trying to turn the issue into something upon which he can mount a campaign.


I might be confusing them. Judge may not have advocated the executive order, but I know she did a phone campaign, maybe to push the "let us vote" thing.


My in-laws got a recorded message call from Judge calling for action of some sort.

[Brown]

The "Let us vote" business, putting the best face on it, means that the citizens ought to be allowed to amend the state constitution. It is of course possible to amend the constitution and citizen votes decide whether an amendment will be adopted, but it is not as easy to amend the constitution in Iowa as it is in other states. I expect that the anti-gay forces will solicit the help of various powerful out-of-state groups to produce television commercials that would show the horrors associates with allowing two people of the same sex to have their marriage recognized by the state.

Putting a more realistic face on it, the "Let us vote" crowd espouses the view that a minority ought not to have rights unless those rights are conferred by the majority. And further, the majority can choose to refuse those rights based upon whim or overt bigotry. In other words, the "Let us vote" attitude is a "majority rules" mentality.

[Brown]

Judge may not have advocated the executive order, but I know she did a phone campaign, maybe to push the "let us vote" thing.


My in-laws got a recorded message call from Judge calling for action of some sort.This doesn't sound like something Patty would do, either personally or wearing her Lt. Gov. hat. One wonders whether someone is running a phone campaign falsely attributing the sponsor.

According to the Des Moines Register (http://www.desmoinesregister.com/article/20090417/NEWS/90417014/1001), an Assistant Attorney General authored a notice to all county recorders: "All county recorders in the state of Iowa are required to comply with the Varnum decision … and to issue marriage licenses to same sex couples in the same manner as licenses issued to opposite gender applicants."

The current tactic-of-the-day is[Republican Sen. Merlin] Bartz and other Republicans are pushing for a "conscience clause" that would allow county recorders to opt out of issuing marriage licenses to same-sex couples if their religion is opposed to gay marriage.Discussion about this proposal has been at roughly the level of second-graders arguing about who is and who is not a poopy-head, although second-graders tend to be a bit more articulate. In the end, a state senator put some more careful thoughts into this statement:Well, here's the crazy part of it. For example, what if a county recorder is morally opposed to mixed race marriages? You know it used to be illegal under Iowa law for mixed race marriages. Well what if you were a county recorder at that time. Does Senator Bartz think they should be able to say 'no' to a mixed race couple?

What about divorced Iowans? Some religions believe it should be 'one man, one woman, one time.' And under the Bartz approach, your county recorder would be able to say: 'No, I'm a Catholic and you don’t get to have a second marriage. You had your one.'

Under the Bartz approach if your county recorder didn’t think Catholics should marry Baptists, that would be the law in your county. That’s just so wrong.

In Iowa, everyone is equal under the law. County recorders don’t get to decide for themselves which laws they will follow and which they won’t.

[pgwenthold]

This doesn't sound like something Patty would do, either personally or wearing her Lt. Gov. hat. One wonders whether someone is running a phone campaign falsely attributing the sponsor.


I didn't hear the call. My MIL answered the phone, and said it was the Lt Gov calling for some opposition to the court decision on gay marriage.

As for the state senator's comments, it always brings me back to the question that I continually ask: Honestly, how do the anti-gay people feel knowing that they are using the exact same arguments that are used by racists? You could take almost any anti-gay marriage rant and substitute "interracial" for "gay" and it would be something you would have heard 50 years ago.

Merits of the argument aside, such a realization would give me serious pause.

[Brown]

As for the state senator's comments, it always brings me back to the question that I continually ask: Honestly, how do the anti-gay people feel knowing that they are using the exact same arguments that are used by racists? You could take almost any anti-gay marriage rant and substitute "interracial" for "gay" and it would be something you would have heard 50 years ago.

Merits of the argument aside, such a realization would give me serious pause.Actually, there is an importance difference between the two.

Let's assume that the question is whether dark-skinned people--a minority--ought to be allowed to vote. In the event that this right to vote is eventually put into place, the light-skinned people actually do lose something. In particular, their voting power is diluted. If more people enter the voting pool, the power of a single vote is reduced.

Or if a court ruling determines that minority students ought to be allowed to attend a school that was previously attended only by students of the majority, the majority could actually lose something: classroom space, teacher-to-student attention, convenience.

In the case of same-sex marriage, however, the granting of equal protection to same-sex couples deprives the opposite-sex couples of nothing. Voting power and schools are limited resources, but marriage is virtually an unlimited resource.

Indeed, the advocates argued to the Iowa Supreme Court that same-sex marriage would hurt opposite-sex marriage. The Court asked a simple question, "In what way?" There was no answer to this question that could withstand even modest scrutiny, and as far as I can tell there remains no reasonable answer today. Some people feel that they have been hurt by the ruling, but they are unable to say how.

[pgwenthold]

Indeed, the advocates argued to the Iowa Supreme Court that same-sex marriage would hurt opposite-sex marriage. The Court asked a simple question, "In what way?" There was no answer to this question that could withstand even modest scrutiny, and as far as I can tell there remains no reasonable answer today. Some people feel that they have been hurt by the ruling, but they are unable to say how.

There is a thread on this over in Social Issues, where I have pointed out that they DO say how they have been harmed. It is usually something like, "Gay marriage would tell my kids that homosexuality is acceptable, but our religion says it is wrong."

(admittedly, that isn't really harm to heterosex marriage, but to heterosexual parents)

Of course, translated, what they are saying is, "Gay marriage would undermine my attempts to teach my kids that homos are evil." It's not a surprise that this argument doesn't hold up in court.

It also begs a lot of questions about society. TV shows, for example, also show homosexuality to be normal. The state allows that, too. In the end, the biggest problem these people face is the fact that homosexuals really AREN'T evil, outside of a "God hates fags" perspective. As homosexuality becomes more commonplace in today's society, it becomes more and more apparent that they aren't a problem. This is the thing that scares the anti-gay people more than anything. Kids these days are so used to seeing homosexuality all over that they don't care, and they can't see what all the fuss is about.

It's pretty obvious why the anti-gay crowd in Iowa is adament about getting it banned NOW. They realize that if they wait even a couple of years with legal gay marriage, everyone will realize that Iowa has NOT been swallowed up by God's minions, and, in fact, gay marriage is no big deal. Shoot, even after 5 years most citizens of Iowa still won't know any married gay couple. How can anyone believe that it is a problem when most people don't see any difference?

As I said, the anti-gay people know that when this happens, they don't have a prayer in the world of stopping it. So act now with predictions of doom before reality has a chance to get in the way.

[The Central Scrutinizer]

As for the state senator's comments, it always brings me back to the question that I continually ask: Honestly, how do the anti-gay people feel knowing that they are using the exact same arguments that are used by racists? You could take almost any anti-gay marriage rant and substitute "interracial" for "gay" and it would be something you would have heard 50 years ago.

Honestly? Most of them would have no problem with that.

[Brown]

There is a thread on this over in Social Issues, where I have pointed out that they DO say how they have been harmed. It is usually something like, "Gay marriage would tell my kids that homosexuality is acceptable, but our religion says it is wrong."

(admittedly, that isn't really harm to heterosex marriage, but to heterosexual parents)

Of course, translated, what they are saying is, "Gay marriage would undermine my attempts to teach my kids that homos are evil." It's not a surprise that this argument doesn't hold up in court.That was an excellent post of yours. Well said.

If I can summon up the spirit of George Carlin for a moment, there seems to be a pscychotic concern about "the children." Oh heavens, how can we explain homosexuality to the children? What will the children think? To which George Carlin said, and I'm paraphrasing, "Eff the children."

Homosexuality is part of life. Deal with it.

Marital infidelity is part of life, too, and we heard the same concerns when it became clear that Bill Clinton was having trouble with his self-control. Oh, how can we explain that to the children?? There was, of course, marital infidelity among people of all political persuasions, but it seemed that the parents were troubled only about explaining Clinton's infidelity.

And good grief, war is an unfortunate part of life. Did anyone ever suggest that WWII not be fought because it would be hard to explain the horrors of war to the children?

And financial ruin is a part of life, too. And natural disasters. And birth defects, and shootings and cancer and gangsterism and torture and homelessness and Alzheimer's and terrorists and plane crashes and drug abuse and religious fanaticism and nuclear weapons.... Is a homosexual marriage more difficult to explain to kids than any of these?

There's a lot of awful stuff in life, some of which parents may wish didn't exist, but it does. They need to deal with it.

[pgwenthold]

Marital infidelity is part of life, too, and we heard the same concerns when it became clear that Bill Clinton was having trouble with his self-control. Oh, how can we explain that to the children?? There was, of course, marital infidelity among people of all political persuasions, but it seemed that the parents were troubled only about explaining Clinton's infidelity.

I find the adultery aspect to be a very difficult problem for the religious case against gay marriage. Adultery is forbidden, apparently, by one of the ten biggie commandments of their religion, but, amazingly, the US doesn't have a law against it! Shouldn't this cause parents concern that the state is undermining their authority? And while there are always calls for the lipservice of posting the 10 commandments, no one ever tries to outlaw adultery.

Where are the parents complaining, "I am trying to teach my children that adultery is wrong, because it is against my religion, but the state is harming that because it is not illegal"? Honestly, given that adultery is far more widespread than homosexuality, you'd think it would be a bigger concern.

As such, the arguments against gay marriage end up being special pleading. Gay marriage is bad and needs to be outlawed because of X. What about adultery, which also contains X? Oh, we'll ignore that... (conveniently, btw)

What it tells me is that their opposition to gay marriage is NOT because of X, and they are just using X as an excuse.

[Euromutt]

A contract is neither a public Act, record, or judicial proceeding.I think this is where the sticking point in your argument lies. Civil marriage can be both a contract, and a public Act. Washington state law, for example (I use Washington state law as an example because it's where I live), explicitly states (http://apps.leg.wa.gov/RCW/default.aspx?cite=26.04.010) that "marriage is a civil contract between a male and a female who have each attained the age of eighteen years, and who are otherwise capable" (italics mine). However, it also requires that (http://apps.leg.wa.gov/RCW/default.aspx?cite=26.04.140) "before any persons can be joined in marriage, they shall procure a license from a county auditor [...]," and that the contract be solemnized (http://apps.leg.wa.gov/RCW/default.aspx?cite=26.04.050) by a person authorized to do so by the state.

That imprimatur of the state is what sets marriage apart from standard business contracts as also being a public Act. It really has to be, since marriage is not merely a contract between two parties with no resulting legal consequences for others, but one that everyone else (e.g. financial institutions, medical facilities, etc.) is legally obliged to respect.

[linusrichard]

I don't disagree that marriage is a public act, although I'm not sure whether it's a public act within the meaning of the Full Faith and Credit Clause (I lean toward thinking it is). But I remain unconvinced that marriage is a contract in any true sense, even if a state statute contains a recitation that it is a contract. It just is too unlike a contract on any but the most superficial level.

[ImaginalDisc]

I don't disagree that marriage is a public act, although I'm not sure whether it's a public act within the meaning of the Full Faith and Credit Clause (I lean toward thinking it is). But I remain unconvinced that marriage is a contract in any true sense, even if a state statute contains a recitation that it is a contract. It just is too unlike a contract on any but the most superficial level.

It involves property rights, as anyone who's had a divorce can tell you. In that it is a voluntary agreement which addresses property rights, it's a contract.

[linusrichard]

It involves property rights, as anyone who's had a divorce can tell you. In that it is a voluntary agreement which addresses property rights, it's a contract.

That's like saying "in that a clock has two hands, a face, and knows what time it is, it's a human being." (ETA - on second thought, that's a little harsh. The point is, not every contract involves property rights, and not everything that involves property rights is a contract.)

A will is voluntary and involves property rights, but it's not a contract.

And a divorce is not a breach of contract claim.

If you can show me a breach of contract suit that was maintained (in modern times) where the contract alleged to have been breached was a marriage (not to be confused with a marriage contract, which is a promise to marry and not a marriage itself), then I might back off a little from my claim that marriage is not really a contract. (But I will probably stick to my opinion that marriage shouldn't be considered a contract.) The fact is that the promises made in a marriage are just not legally enforceable in the same way contracts are.

Just to be clear, I'm not claiming that my view is the consensus view of legal scholars and that those in this thread who call marriage a contract just don't know what they're talking about. I think there is a debate about this Out There, and I'm sure there are good minds and good arguments on both sides.

[Brown]

In a story that is of no surprise at all, Iowa has been targeted by an anti-gay marriage group. According to stories published today by the AP and others, the "National Organization for Marriage," as part of its "Reclaim Iowa Project," is mobilizing to try to elect candidates who support submitting the gay marriage issue to Iowa voters.

The goal of the group, of course, is to overturn the Supreme Court's decision.

I have not checked to determine whether this self-proclaimed "National" organization "for Marriage" (which oddly enough is taking a stand AGAINST marriage, at least they are against the marriage of people they deem to be the wrong kind of people) represents out-of-state interests and out-of-state money. But I have a suspicion ....

[Upchurch]

I have not checked to determine whether this self-proclaimed "National" organization "for Marriage" (which oddly enough is taking a stand AGAINST marriage, at least they are against the marriage of people they deem to be the wrong kind of people) represents out-of-state interests and out-of-state money. But I have a suspicion ....
I think that's the group who gained some notoriety over using the footage of the beauty contest person saying she believed marriage was between a man and a woman.

Yeah, here they are (http://www.youtube.com/user/nationformarriage?blend=5&ob=4).

They also produced this gem.
Wp76ly2_NoI

Help! Help! They're repressing my freedom to repress other people's freedoms!

[scratchy]

Gay marriage! What is the world coming to? As a middleaged white heterosexual male, my feeling of entitlement and importance is slowly eroding. We gave rights to women, blacks and who knows what. Pretty soon the only way to salvage some of it is to start carrying a gun, even though i have no interest in weapons. Am i going to be reduced to a gun nut?

[ddt]

Help! Help! They're repressing my freedom to repress other people's freedoms!

:D
Their name is also pretty ironic. "National Organisation for Marriage". But their message is that they are against (gay) marriage. :jaw-dropp

[Brown]

In a story that is of no surprise at all, Iowa has been targeted by an anti-gay marriage group.In the newest developments, several people are crossing state lines to get married in Iowa. There are the expected Republican (capital R) bluster bites that vow to make this sort of thing a campaign issue, plus a modest effort to try to use the ballot box to recall the justices of the Iowa Supreme Court.

The head of the National Organization for Marriage has denied that the group supports bigotry. (How could anyone possibly have mistaken this organization's lofty civic goal--that of allowing the people of the State to have their say--with the nefarious goal of preventing people from getting married merely because they don't like them, even though they don't know them? Of course, if the voters decide that the sky hasn't fallen and that the state constitution ought not to be changed, this group will accept that decision and go away. Won't it?)

Another development is that in an election for the Iowa House, the Democratic candidate has raised $42,882, and the Republican candidate has raised $63,101. But the "New Jersey-based National Organization for Marriage, a group that opposes marriage for same-sex couples, has spent $86,080 on television ads in support of" the Republican candidate.

The notion of out-of-state influence is often a sore point, with many Iowans preferring to say that Iowans will mind their OWN business, thank you very much, and they do not need out-of-staters telling them what they ought to do. Right now, the notion of influence is raising its head in Iowa in a different context: Senator Chuck Grassley, a major recipient of campaign contributions from the so-called health industry, is being taken to task for apparently representing that industry rather than the people of Iowa. Grassley's position is: the campaign contributions have no effect on his positions. Meanwhile, good ol' Chuck is overtly raising funds on a platform of defeating "Obama-care."

[KingMerv00]

I am not so sure I get his "due process" finding...

I haven't read the link yet but I'll bet he is referring to "substantive due process (http://en.wikipedia.org/wiki/Substantive_due_process)".

[Brown]

Well, here's a new development, from the Des Moines Register (http://www.desmoinesregister.com/article/20090902/NEWS09/909020372/1001/NEWS):Democrats retained a fiercely contested House seat in a special election Tuesday, turning aside Republican hopes to showcase a victory as a sign that Iowa's political tide has turned.

Democratic candidate Curt Hanson, a retired schoolteacher, won against GOP candidate and Jefferson County Supervisor Stephen Burgmeier by 3,932 to 3,825 votes, according to unofficial tallies.
...
Campaign reports filed five days before Tuesday's election show that Burgmeier and Hanson had raised nearly $313,000 in cash and in-kind contributions. That total doesn't include money raised in the last days of the election or the $86,080 spent on television ads on behalf of Burgmeier by the National Organization for Marriage in Washington, D.C. Both candidates support allowing a constitutional vote on whether Iowa should ban same-sex marriage. (emphasis mine)So the self-proclaimed National Organization for Marriage didn't get its man elected, but on the other hand, the group's opponent said that he favored letting the citizens vote on amending the constitution.

So more than $400,000 was spent, and fewer than 8,000 people voted. This may be the most expensive Iowa House race in history.

Jefferson County (the part of Iowa where the fictional James Ryan from "Saving Private Ryan" was raised) is hardly a hotbed of political intrigue. The Republicans tried to say that the issues in question were national--spending, bailouts and national health care reform, taxes. The Democrats said the issues were local issues. But apparently same-sex marriage (a local issue with national impact) was not one of the major decisive questions.

[Fishstick]

:D
Their name is also pretty ironic. "National Organisation for Marriage". But their message is that they are against (gay) marriage. :jaw-dropp

No you see that's the whole point because Marriage is between a Man and a Woman because uh... Anyway they can have the same thing, just with a different name, that's the same rig.. ?

http://forums.randi.org/imagehosting/thum_336594a9e7519dff0a.gif (http://forums.randi.org/vbimghost.php?do=displayimg&imgid=17441)

Oh.

[Brown]

Spin, baby, spin. From the Des Moines Register (http://www.desmoinesregister.com/article/20090903/NEWS10/909030352/1001/NEWS):A group opposed to same-sex marriages failed to secure victory for Republicans in Iowa this week, but the massive injection of out-of-state money on the issue foreshadows what's to come in next year's elections, political scholars said Wednesday.

Despite the loss, the National Organization for Marriage succeeded in making gay marriage an issue, the head of the group said Wednesday. He vowed that its "Reclaim Iowa Project" will remain active in the 2010 state elections. (emphasis mine)What a hoot! With this standard of "success," then I suppose the Hindenburg landing at Lakehurst was a success. The group spent more on this election than either candidate raised. And the group's man lost anyway.

Ah, but he only lost by 107 votes, and Obama won in this district by over 1,400 votes. But missing from the story is any mention of how many total voters turned out for a presidential election as opposed to a special election for the Iowa House. Might that little tidbit of fact make a difference?

This story really isn't much of a story. The piece is basically reaction to news, which is not, in and of itself, news. There are several other instances of individuals quotes in this story who claim victory... even though their man LOST.

[supercorgi]

If Massachussetts falls to pieces because of their legalization of gay marriage, then we can act. But if they don't, then why bother?
Well we've been having gay marriages for 6 years now and the state hasn't fallen apart yet. It's pretty much a big non-issue in these parts.

[Praktik]

Remember when all the hippies thought: "well when we get older and the old people around NOW die out we're gonna legalize weed"

it didn't happen.

While all the demographic trends point to a shift happening wherein once the dinosaurs stuck in the muck of backwards Victorian morality die out that we'll finally be able to shed all of this anti-gay stuff - is the same thing going to happen?

In other words, are there enough NEW bigots being made to hold the status quo beyond our expectations?

[aerosolben]

Remember when all the hippies thought: "well when we get older and the old people around NOW die out we're gonna legalize weed"

it didn't happen.

While all the demographic trends point to a shift happening wherein once the dinosaurs stuck in the muck of backwards Victorian morality die out that we'll finally be able to shed all of this anti-gay stuff - is the same thing going to happen?

In other words, are there enough NEW bigots being made to hold the status quo beyond our expectations?
No. For a few reasons:

People cease using marijuana as they get older - they don't stop being gay. Age itself (not just generational differences) is more of a factor.
The Federal government is much more heavily involved in drug laws than marriage laws
Racism is really the most apt analogy, and we have solid evidence of changing values over time there.


I expect to see legal gay marriage come about throughout most of the US in the next decade.

[Praktik]

No. For a few reasons:

People cease using marijuana as they get older - they don't stop being gay. Age itself (not just generational differences) is more of a factor.
The Federal government is much more heavily involved in drug laws than marriage laws
Racism is really the most apt analogy, and we have solid evidence of changing values over time there.


I expect to see legal gay marriage come about throughout most of the US in the next decade.


Ok well that was heartening. Thank you for alleviating my afternoon pessimism.

(and here's hoping the roomie was successful in his bid to refresh our herb supplies when I get home)

[linusrichard]

No. For a few reasons:

People cease using marijuana as they get older - they don't stop being gay. Age itself (not just generational differences) is more of a factor.
The Federal government is much more heavily involved in drug laws than marriage laws
Racism is really the most apt analogy, and we have solid evidence of changing values over time there.



Also - and maybe this is really just a rewording of your third point - the marriage laws are discriminatory, while the weed laws are not. Marijuana is banned across the board, while marriage is banned only for certain people. That kind of thing gets harder to stomach over time.