Separate and Unequal

The real problem with the Iowa gay marriage decision

Do judges have an obligation to strike down unconstitutional laws even when those laws enjoy popular support or reflect deep-seated traditional beliefs? That's the question the Iowa Supreme Court answered earlier this month in Varnum v. Brien, where it voted unanimously to nullify the state's ban on gay marriage.

Did they get it right? Not in the eyes of many conservatives. "That's not the rule of law," declared National Review's Andrew McCarthy. "That's dictatorship. And it can't last." Former House Speaker Newt Gingrich was equally blunt, describing the opinion as "outrageously wrong" and as the "height of judicial arrogance." Matt Barber, an associate dean at Jerry Falwell's Liberty University School of Law, took a similar line, denouncing the Iowa court for "creating, from thin air, a phantom 'right' to the ridiculous, oxymoronic and postmodern 'gay' marriage counterfeit."

But none of those complaints identify the real problem with the ruling: Rather than simply requiring the state to justify its ban as a necessary and proper exercise of its police powers, the Iowa court first spent the better part of its opinion explaining why laws targeting gays deserve heightened judicial scrutiny. It's not until page 51 that the court began to examine and then reject each of the state's five flimsy justifications. In other words, the court placed the burden on individual citizens to demonstrate that their rights were worth protecting, rather than on the state to account for its discriminatory exercise of power.

The origins of this backwards approach lie in the regulatory attacks on economic liberty that defined the Progressive and New Deal eras. As state and federal courts in the early 20th century began striking down laws that violated property rights and liberty of contract, progressive critics claimed that judges had no business "legislating from the bench" or substituting their views for the will of the people. To put it another way, the original "judicial activists" were libertarian and conservative judges acting in defense of economic rights.

By the late 1930s, the Supreme Court had come around to the progressive point of view. For our purposes here, the key decision was United States v. Carolene Products Co. (1938), where the Court upheld a federal restriction on milk substitutes, declaring that, "the existence of facts supporting the legislative judgment is to be presumed." So long as a law "rests upon some rational basis within the knowledge and experience of the legislators," the Court will defer to the lawmakers and presume the legislation to be constitutional. No scrutiny required.

The Court did, however, leave itself some wiggle room. In Carolene Product's famous "Footnote Four," the Court carved out three exceptions to this presumption of constitutionality: Laws affecting specific constitutional prohibitions (such as the Bill of Rights), the political process, or "discrete and insular minorities" would receive extra judicial attention. Economic rights were left at the mercy of state and federal lawmakers.

Which suited the Court's liberals just fine until Griswold v. Connecticut (1965), where they tried to scrutinize a state law banning the sale and use of contraceptives without simultaneously unleashing judicial review in defense of economic liberty. The solution was Justice William O. Douglas's awkward and controversial decision locating privacy rights in the "penumbras" and "emanations" of the Constitution. As the legal scholar Randy Barnett put it, "had Douglas grounded the decision in 'liberty' (which is mentioned in the text) rather than 'privacy' (which is not), it would have risked undoing the strong deference to Congress and state legislatures that he and his fellow-New Deal justices had previously established." As a result, the Court found itself in the arbitrary business of distinguishing between the "fundamental rights" (such as privacy) that trigger "strict scrutiny" and the "liberty interests" (such as economic rights) that trigger the very lenient "rational basis" review.

Which brings us back to the Iowa gay marriage decision. By identifying gays as a "quasi-suspect class" that trigger "intermediate scrutiny," the Iowa Supreme Court followed in the tortuous and unconstitutional footsteps of Carolene Products. Contrast that with the Supreme Court's strikingly libertarian decision in Lawrence v. Texas (2003), which simply demanded that the state justify its anti-sodomy law as a necessary and proper use of its police powers. When Texas failed to do so, the Court rightfully nullified the law.

That's exactly what the Iowa Supreme Court should have done. If the state is going to be in the marriage business at all (which it shouldn't be), then it must treat every applicant equally—unless there are necessary and proper reasons to do otherwise. As Varnum v. Brien eventually made clear, the state failed to make its case. At least the Iowa Supreme Court got that part right.

Damon W. Root is an associate editor at Reason magazine.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • ||

    You can vote on my marriage, it'll be fun.

  • ||

    That picture is awesome. I wish every homo-hater saw that.

  • ||

    Sort of a Survivor situation maybe. Last marriage standing. Or a battle royale.

  • Mad Max||

    From the article:

    'Do judges have an obligation to strike down unconstitutional laws even when those laws enjoy popular support or reflect deep-seated traditional beliefs? That's the question the Iowa Supreme Court answered earlier this month in Varnum v. Brien, where it voted unanimously to nullify the state's ban on gay marriage.'

    In reality, the question is this: If a court is disgusted by the deep-seated traditional beliefs underlying a law, is that court justified in declaring that law unconstitutional, even though the constitutional problem had not been noticed previously in the entire history of the constitutional provisions being invoked?

  • Tacos mmm...||

    those complaints fail to address the real problem with the ruling.



    The inevitable slide to man-on-dog sex?

  • Fist of Etiquette||

    The tumble down bestiality slope aside, why are gay marriages acceptable but not consensual polygamous unions? If the three people decide they want to wed, who is the state to deny them? If all of Greenwich Village or the entire state of Utah wants to enjoy the legal benefits of marriage, how can they be turned down? If the entire membership of the Ku Klux Klan decides to have a mass white wedding, why not?

    Maybe government should get out of the marriage business altogether. Perhaps we can find another way to get validation of our lifestyle choices, traditional or not.

    (Yeah, I know. I'll shut up now.)

  • ||

    I've never really understood the approach that gay people are denied rights that straight people enjoy.

    All people in Iowa, regardless of sexual preference, have the exact SAME rights regarding who they can marry. All people have the right to marry any other single human person who is not an immeadiate relative, not already married, adult, consenting, an of the opposite sex. Same for everyone. No one currently enjoys the right to marry whomever they love.

  • Tacos mmm...||

    Same for everyone. No one currently enjoys the right to marry whomever they love.



    So this is a victory for straight people as well!

  • Tacos mmm...||

    All people in Iowa, regardless of sexual preference, have the exact SAME rights regarding who they can marry. All people have the right to marry any other single human person who is not an immeadiate relative, not already married, adult, consenting, an of the opposite sex. Same for everyone. No one currently enjoys the right to marry whomever they love.



    Seriously, though, by this logic, there was nothing wrong with anti-miscegenation laws, since they applied equally to both blacks and whites.

  • Mad Max||

    Tacos,

    Oh, good, I was worried that we had to worry until the ninth response for the comparison between black people and gays. I was worried that you all were losing your touch.

  • Mad Max||

    wait for the ninth response

  • JP||

    Liberty University has a school of law? Who knew?

    And, according to wikipedia, it's provisionally accredited.

  • spambot||

    "Maybe government should get out of the marriage business altogether."

    Yep that is the answer. Will the government ever get out of it? No for two reasons.

    1) People like telling other people what to do and using the club of government to do it.

    2) Tax revenues for marriage licenses. (this is really the biggy)

  • Tacos mmm...||

    Oh, good, I was worried that we had to worry until the ninth response for the comparison between black people and gays. I was worried that you all were losing your touch.



    Anti-miscegenation laws are a good parallel.
    They're what got the government into the whole business stupid business of certifying marriage in the first place. In most ways, the "gay rights" movement is quite unlike the black civils rights movment that proceeded it, but this is one of the few real parallels; the other one that comes to mind being the tendency for political parties to use the issue as a wedge.

  • Mike||


    Buzz | April 13, 2009, 3:51pm | #

    All people in Iowa, regardless of sexual preference, have the exact SAME rights regarding who they can marry. All people have the right to marry any other single human person who is not an immeadiate relative, not already married, adult, consenting, an of the opposite sex. Same for everyone. No one currently enjoys the right to marry whomever they love.



    It's not that gays don't have the same rights as straights, it's that men and women don't have the same rights under the law. It's patently sexist to allow men to marry women but not allow women that same right. Why no one uses this angle, I'm not sure. Why can't law be sex-neutral? Why would that be so controversial?

  • Some Guy||

    Yep that is the answer. Will the government ever get out of it? No for two reasons.
    1) People like telling other people what to do and using the club of government to do it.
    2) Tax revenues for marriage licenses. (this is really the biggy)


    They could charge the same amount for a civil union license that (as long as I'm at - should have a 6 month waiting period and require a prenup) gives the same rights that marriage does (and also married-filing separately should be identical to single for tax purposes, but you have to pick one and stick with it.)

    Let the churches do whatever the hell they want with the word "marriage," as long as every adultcouple

  • cls||

    Lawrence was decided on the question of liberty. The Iowa Court dealt with a conflict between guarantees of equal rights before hte law and the marriage ban. As such it had to first deal with the issue of whether gays, as a class, qualify for equal rights, something conservatives deny.

    I don't see how the Iowa decision (written by a Republican conservative) could have done what Mr. Root wants. The court has to rule on the issues present in this specific case and that was the conflict in the Iowa constitution between guaranteeing equality of rights and a law which denied equality of rights. I agree Lawrence was a stunningly libertarian argument, and superior ideologically to the Iowa decision. But I can't see a justification for a Lawrence-like decision in this particular case since the legal conflict there, that the court had to resolve, was not the same as in the Lawrence case.

    Not only were the circumtances vastly different, but the legal conflict was quite different. It is not surprising the court had to rule as it did. They did the right thing with their ruling giving the case they were presented and the nature of the conflict they were called on to adjudicate.

  • ||

    "Why no one uses this angle, I'm not sure"

    It's used plenty, FWIW

  • ||

    It was enlightening to learn how the triad of rational basis/intermediate/heightened scrutiny evolved...

  • ||

    I'm going to raise a point that should be at home on a site called "Reason".

    There is a common problem underlying the positions of gay marriage supporters, abortion advocates, and global warming believers. They have planted their flags on unyielding, unequivocal assertions that are totally unproven, if not unprovable. 1 - That people are "born gay". 2 - That a baby does not achieve "personhood" until the third trimester (sometimes, but not always). 3 - That man made global warming is real, and happening, and caused by carbon dioxide emissions.

    If we were governed by reason, those positions would have to be PROVEN before they could be used as a bludgeon to crush the right of the people to make their own laws, or in the case of global warming, to pursue economic activity.

    I understand the libertarian position on social issues, which is all well and good when you're talking about arguments in the court of public opinion. But what is the libertarian view on judicial fiat vs. democratic governance? Setting aside what you think the law should be, what is the libertarian position on Who Gets to Make the Laws? Do libertarians believe in democracy?

    With regard to the specific issue of gay marriage, the courts CANNOT strike down the will of the people on equal protection grounds without first PROVING -- EMPIRICALLY -- that homosexuality is an inborn, immutable trait akin to skin color. Failing that, we are now truly in the territory of calling everything under the sun a Constitutional Right whenever a court feels like it. Don't fat people have the same rights as thin people? Don't alcoholics have the same rights as non-alcoholics? And mustn't the government therefore guarantee those rights, through force if necessary?

    That is where we are. Destroy the Constitution by making a mockery of it. If everything is a right, then the whole concept of rights loses legitimacy. And we go down this road led by people who utterly disregard reason, logic, empiricism and science while claiming to be their greatest practitioners. George Orwell, RIP.

  • ||

    Anti-miscegenation laws are a good parallel.

    Well, maybe not the argument-ending parallel you fancy.

    It always gets back to what the definition of marriage is. If it is defined as being between people of the opposite sex, then the anti-miscegenation laws were outlawing a category of marriage based on race. There is no parallel with gay marriage, if the issue is viewed from that perspective.

    Now, if the argument is that the definition of marriage as being between people of the opposite sex is inherently discriminatory, then the miscegenation cases provide no parallel, because they made no such argument. They argued that a restriction on marriage, so defined, was unconstitutional.

    What we are dealing with here is an ongoing shift in the underlying culture. Whether courts should enact such shifts into law or legislatures is, I think, the real issue, and is the issue addressed, however ineptly, by those calling this decision "legislation from the bench."

  • ||

    What we are dealing with here is an ongoing shift in the underlying culture.

    And culture should not be regulated by popular opinion.

    Just shitcan the conservative movement already - they are as useless as a Jesus Christ hard-on.

    Maybe something worthwhile will spring out of the ashes of the GOP corpse.

  • lukas||

    Jim, the equal protection argument for gay marriage does not rely on equal protection for heterosexuals vs. homosexuals, it relies on equal protection for men vs. women.

  • BruceM||

    Do judges have an obligation to strike down unconstitutional laws even when those laws enjoy popular support or reflect deep-seated traditional beliefs?

    Holy shit it absolutely horrifies me that anyone would answer anything but a resounding "of course they do" to that question. That's the whole fucking point of a constitution - so that some principles are beyond the whims of the majority. Equal protection of the law is one of them. It's also the one most easily subverted by the tyranny of the majority.

    And "deep seated tradition/beliefs" is just a euphamism for religion.

    lukas: no, it's equal protection for homosexuals vs. heterosexuals, not men and women. It's quite fair to men and women equally, as long as they're attracted to the opposite sex.

  • ||

    I've had enough of the gay marriage debate.

    Its time for a true libertarian solution, get government out of the marriage business.

    Imagine... Any couple, whatever sex, could go to the courthouse and establish a legal partnership. The social institution of marriage, on the other hand, could be left to society. If your church, or town, or group of friends, thinks its only a man/woman thing then they have a right to use the word "marriage" that way and think of it that way. If you want to apply the term more widely, go for it. But let's get the government out of the equation.

    Then again, if the government is to guarantee my right to marry I could sue my girlfriend for breaching my civil rights if she doesn't accept my proposal.

  • MNG||

    "That's the whole fucking point of a constitution - so that some principles are beyond the whims of the majority."

    I don't quite agree. The reason why constitutional provisions should trump statutes is that they do more so represent the will of the majority. I mean, the Bill of Rights and such were passed by 'super-majorities.'

  • BruceM||

    MNG: Constitutions can always be amended by super-majorities (with a complex ratification process). But the whole point is to put some things past the WHIM of the majority. It takes nothing but a yes/no vote to pass a law. It takes a lot more to change the constitution. And insofar as constitutions are supposed to represent our ideals, it gives people a lot more pause to change a constitution versus merely passing a new law.

    jdp: marriage should be entirely an issue of contract. When people get it through their heads that marriage does not, in any way, help children we could possibly move to such a mature, reasonable version of marriage.

  • Mad Max||

    'marriage should be entirely an issue of contract.'

    Up to a point, that might be an improvement over existing law. For example, if one party to a commercial contract and the other party disregards it, then the innocent party is entitled to damages from the breaching party.

    In marriage, on the other hand, lots of states have a system by which the innocent party, in certain circumstances, can be required to pay damages to the breaching party. If Mr. Gigolo has been cheating on his rich wife, and he finally decides that he doesn't want to be married any more, he can sue for "no-fault" divorce and claim a share of his wife's property. In certain "no-fault" states, Mr. Gigolo's own misbehavior is irrelevant, as is his wife's loyalty - these states don't want to get into the "blame game," you see; it's just a failed marriage and the question is how much money Mr. Gigolo can get out of the system.

    Imagine a court dealing that way with a business contract. 'Maybe the plaintiff didn't deliver the goods, but that's irrelevant and I don't want to talk about who is to blame for the tragic end of this business relationship. I will order the defendant to compensate the plaintiff without regard for whether the plaintiff was actually complying with the contract or nor.'

    'marriage does not, in any way, help children'

    Citation needed

  • ||

    Until the birth if the Gay Liberation Movement, nobody thought that Marriage was anything but a relationship between the two sexes. Even in polygamous marriages, the primary relationship was between many members of one sex and one of the other. Science Fiction may have speculated about other forms of marriage, but that was about it. Even the Alexandrian Greeks (hardly Christians), who respected homosexual parings above heterosexual ones, did not call that relationship marriage.

    I happen to think that Gay marriage is a fine idea. I understand why Gays don't want to accept "civil unions"; with the best intentions in the world, they won't have all the rights of married couples until it has been fought through the courts issue by tiresome issue - which could easily take twenty years.

    But the court rulings that discover a right for Gays to be married are activist balderdash, based on the belief that if a Judge rules that Red is Blue then by gods it IS blue .... or you'd better say it is, anyway.

    What the Gays want is to change the fundamental definition of marriage, to something far more subtle. I think this is good. But the change hasn't happened yet, and pretending that it has is lazy, probably bad law, and likely to end in trouble.

  • BruceM||

    Mad Max: If you're going to defend the proposition, then you need to provide some evidence that marriage helps children. It shouldn't be my burden to prove a negative. Either agree with me or prove me wrong. People always go around saying we need marriage "for the children" yet they never give any evidence that it actually does anything "for children" whatsoever.

    "It keeps parents together." No it doesn't. And if parents hate each other, why would you want a child to live in such a household? Better to let the parents split up and end the marriage.

    I'm not against child support. But that's entirely separate from marriage. People who have sex and risk procreation need to be held financially responsible for any children that result from the intercourse.

    Gays do not want to change marriage, they just want to no longer be denied it. It's wacky christians who say letting them get married "changes the definition" of marriage. And even if it does - so what? How the hell does it negatively effect your heterosexual marriage? How does it make your orgasms less enjoyable?

    All people should be treated equally under the law, unless there is a compelling reason to discriminate. So far not even a rational reason to discriminate has been offered in support of defining marriage in such a way as to keep homosexuals from partaking in it.

  • ||

    I think the government should get out of the marriage business and get into the civil union business.

    Straight or gay, the government should issue a civil union contract that has the same rights that marriage currently has.

    A marriage should be something that is only of religious symbolism and issued only by religious institutions. People who have entered into a civil union, gay or straight would then go to the church of their choice for a marriage contract.

    I object to gay marriage only because for 5,000 years, it has been defined as a bond between a man and a woman and is something that holds great religious symbolism to many americans.

    For that reason, I dont think it is right to take that religious symbolism away from people who hold it to be sacred by redefining it.

    Alternatively, the government getting out of the marriage business all together would hopefully make all parties happy. But in the end, it is just semantics becuase a marriage and civil union would be essentially equal in their meaning.

  • ||

    Mark: Exactly my point. Sadly this issue is mostly about semantics. In places where same-sex civil unions offer the same rights/privileges/obligations as marriage folks still agitate for the right to marry. The trouble is that the government, in days long before homosexuality was widely known or accepted, wrote law for civil union using the word marriage. Marriage long pre-dates any current government in social and religious practice, and so should not be beholden to government.

  • ||

    "It shouldn't be my burden to prove a negative. Either agree with me or prove me wrong. People always go around saying we need marriage "for the children" yet they never give any evidence that it actually does anything "for children" whatsoever."

    You are asserting something that goes against the common knowledge of humanity since society began several hundred thousand years ago. Marriage can be seen as the institutional form of the practice of raising children together. Every culture that has ever existed, barring some exceptional case, has had a form of marriage to cement the bonds between mother and father.

    What you are suggesting is that the "pair bond" evolved in human beings over thousands of years in a completely arbitrary way and so children have no benefit from being raised by the people who produced them.

    A human being does not reach maturity until fairly late in life compared to ohter animals, thus necessitating that the couple stay together until the process is complete. The fact is that there are obvious benefits, both materially and psychologically which come from having a feminine and masculine paring (with their gender based division of labor) complement each other in taking care of a young child.

    While two parents living apart, or a single parent could do this, is makes things much more difficult and thus less optimal given how we have evolved.

    Marriage is, and always has been about "the children".

    This does not mean that gay couples could not do a good job, but your argument is that marriage itself serves no benefit to children. That claim is so extraordinary as to require extraordinary proof which you fail to provide.

  • max hats||


    You are asserting something that goes against the common knowledge of humanity since society began several hundred thousand years ago. Marriage can be seen as the institutional form of the practice of raising children together. Every culture that has ever existed, barring some exceptional case, has had a form of marriage to cement the bonds between mother and father.



    The idea that marriage has been unchanged over the eons is laughable. In some cultures, one man can marry many women. In some cultures, a man marries a very young girl. In some cultures, a woman marries a very young boy. And in American culture just a couple hundred years ago, the man had the right to beat and rape his wife - she was basically chattel. To say marriage is one specific thing between and man and a women and has always been such betrays tremendous ignorance.


    Marriage is, and always has been about "the children".



    Where are the protests against heterosexuals who marry without intent of having children? When an old widow marries and old widower, why don't we hear about the sanctity of marriage and the "ancient" basis of marriage as a child producing factory? Antipathy towards gay marriage is entirely based in antipathy towards gays.

  • Justen||

    I don't understand why the state has any place whatsoever in sanctioning or denying marriage. If two people want to enter into a contract, social or legally binding, involving the pooling of their assets or their sexual behavior that seems to me to be their business. If the state wishes to provide tax benefits to two or more people who live under the same roof, or to a person who supports other persons as a dependent, I see no problem with that.

    What I don't see is why there needs to be a special name for this situation, or a special restriction on what sorts of people can enter into such agreements. It would be ludicrous to prohibit any other contract whatsoever with members of the same sex. It is not the state's business to attempt to engineer certain kinds of social or familial arrangements, whether or not it pretends to be doing so in a secular fashion. Really it's not the state's job to be engineering any kind of behavior except to discourage criminal activity. What a waste of time, money, and angst this all is.

  • Justen||

    @Mark: religions don't get to hold intellectual rights to words. If two men or two women (or fifty men or women) want to live under the same roof and call it 'marriage' nobody can do anything about it - in fact they do, all the time. It's purely about whether they gain any of the regular legal and tax benefits of marriage, which basically equates to either the state does or the state does not endorse a particular religious definition of a word. It's blatantly stupid and unconstitutional.

  • BruceM||

    well said max hats.

  • ||

    Since practically all the objections to gay marriage are religious in nature, who gives a shit? Religion rules medieval fiefdoms, not the U.S. Since homosexuality was not recognized as a normal variation in human sexuality until recent decades, it's obvious why marriage laws didn't account for them in the past. Now that we recognize with more science and nuance what reality is, it's time to end an injustice that had heretofore been ignored because of ignorance.

    Religion is ignorance.

  • ||

    max hats: You really didn't address my argument and all of your examples include two or more people capable of reproduction. My point was never about the validity of gay marriage or any other alternative form, it was merely an argument against the claim that marriage has no benefit to children.

    Yes, things do change, including the cultural perceptions about what constitutes marriage. My point was only that the original purpose of the institution was to cement the bonds between parents as a benefit to children, the family, and society.

    In fact, there are arguments which state gay marriage would actually contribute to social stability and benefit children. Those arguments are based on the assumption of two parents being optimal for a child's development.

    You are completely reading something else into my points. Seems like you have another axe to grind.

    Tony: Don't see the point in saying "religion is ignorance". Religion, in its proper context is built around reality and takes the best that science has to offer. It is meant to give meaning to life and to guide moral action in accordance with a higher power.

    Most "religious" people have a moderate view on homosexuality and almost every other issue.

    Do not let the ones who speak loudest cloud your judgment. That is prejudice and that is ignorance.

    Ignorance is ignorance.

  • max hats||


    Yes, things do change, including the cultural perceptions about what constitutes marriage. My point was only that the original purpose of the institution was to cement the bonds between parents as a benefit to children, the family, and society.



    (emphasis mine)

    If you can find the "original purpose" of marriage, you would be the greatest (paleo?) archeologist the world has ever known. Marriage has been many, many things, between many, many people in more circumstances and variations than you or I can imagine.

    You really didn't address my argument and all of your examples include two or more people capable of reproduction.



    False, I cited old people. People who are physically incapable of having children (whether from age, accident, medical condition or surgical operation) get married all the time in our society without anyone being bothered in the slightest. Is a man with a vasectomy getting married to a woman a dramatic revocation of the "eons" old "purpose" of marriage?

  • Mike||

    The court got it wrong. If you want to know whether something is unconstitutional, there is a very easy way to do it. READ the constitution. For instance, the US Federal constitution makes it clear that congress has certain enumerated powers, and any power not enumerated belongs to the states or the people (like the welfare state, price controls, drug laws, ect.) The US Supreme court should strike down any federal law that is not based on an enumerated power. This is why the "footnote four" decision was such a disaster. The justices simply picked the "rights" they liked and ignored economic rights.

    However, this was a decision of the IOWA supreme court. The obvious way to decide if not letting gays get married is unconstitutional is to read the Iowa constitution.

    http://www.legis.state.ia.us/Constitution.html#a3p2s9

    Unfortunately, there is nothing in the Iowa constitution that enumerates the powers of government, except for some Bill of Rights-type exceptions--nothing about sexual preference. Therefore, the court had no business striking down the law. The better way to legalize gay marriage is the way Vermont did it, by a vote of the legislative branch (the one supposed to make laws : remember?). An even better way, as some have mentioned, would be to privatize marriage and get the state out of it completely.

  • ||

    I'm at the point where I know longer give a fuck HOW it happens. The banning of gay marriage is a rank injustice based on out-dated prejudices against gay people and it's long overdue that such bans be struck down in every enlightened civilization, everywhere.

    Kudos to both Iowa and Vermont. Shame on every state (including mine) which has not already come around.

  • ||

    The banning of gay marriage is a rank injustice based on out-dated prejudices against gay people and it's long overdue that such bans be struck down in every enlightened civilization, everywhere.

    The only "enlightened" stance is to ban "marriage".

    Why should an individual's personal relationships in any way affect how they are treated by our Gov't?

    Why should our Gov't privilege any people "in a relationship" over those who choose to live alone?

    Please elaborate on the reasons any "married" people deserve the privileges of lower tax rates, "spousal" health benefits, preferential treatment in probate, or any of the other 1000+ benefits of "marriage" over a "single" person.



  • ||

    max hats:

    Not sure why you keep arguing something that is irrelevant to the original point.

    I'm not arguing that people who can't reproduce should not be married, I'm only addressing the fact that marriage does benefit children.

    I would argue that a gay marriage could be better for children than a single parent household. Don't see how that is a problem.

    Seems like you want marriage to mean anything and therefore nothing. So whats the point then if its merely a meaningless term? In fact if its as fluid as you state, then if the majority decide its between a man and a woman alone, then that's what it is.

    The fact that marriage is now being seen as a fundamental right means that it must have some essence that can be discerned. My argument is that we can see that it has tended, in the majority of cases, to revolve around the creation and maintenance of a family.

  • ||

    Additionally, I'd like to add here a quote from an anthropology text which seems to make the point better than I do.

    "Marriage, the lynchpin of any familial or kinship system, is the cultural manifestation of the control of reproduction and fertility. Marriage, in this sense means the socially sanctioned, regularized sexual union for the purposes of reproduction. But like kinship and families, there are many kinds of marriages and many sexual unions which are not marriages. Anthropologists are concerned not just with the control of procreation, but also with the social relations that are formed through reproduction and marriage."

    (Basu, Alaka. The Methods and Uses of Anthropological Demography. Oxford: Oxford University Press, 1998. p.110)

  • lukas||

    no, it's equal protection for homosexuals vs. heterosexuals, not men and women. It's quite fair to men and women equally, as long as they're attracted to the opposite sex.



    BruceM: So anti-miscegenation laws are perfectly constitutional. They only discriminate against blacks that are attracted to whites and vice versa. It's quite fair to blacks and whites equally, as long as they are attracted to the same race.

    Let's be clear: this is not even about homophobia, it is about sexism. Just as the opponents of miscegenation feared the breakdown of traditional race roles due to their racism, so do the opponents of gay marriage fear the breakdown of traditional gender roles due to their sexism.

  • Mad Max||

    lukas,

    The sex-discrimination argument sounds promising. Let's explore the ramifications.

    There are laws protecting pregnant women. This is clearly discriminatory against men, who cannot get pregnant - which is nobody's fault, not even the Romans'.

    Why, then, the oppressive and sexist privileges granted to pregnant women?

    Solidarity!

  • BruceM||

    Mike that's simplistic Republican claptrap. Reading the constitution doesn't answer many questions that come up about constitutional interpretation.

    If you just read the US Constitution, the Air Force would be unconstitutional. It gives Congress the power to "raise armies and navies" but says nothing about air forces.

    And that's just a dumb example.

    Nonehteless, a pure, straightforward reading of the equal protection clause - which is in the constitution (a similar one is in the Iowa state constitution) makes it unconstitutional for the state to deny gay people the equal legal rights that it gives to heterosexual people by letting them partake in marriage.

    The government concedes this fact. That's why all these cases come down to "tests" made by judges and found nowhere in the Constitution. Balancing tests like "rational basis" and "strict scrutiny" are simply made up by judges to allow some violations of equal protection, because some violations are necessary. Otherwise unisex bathrooms would be illegal and women would have to be allowed to do EVERYTHING that men can do, and vice versa. To meet these tests, the state comes up with pathetically lame reasons why gay marriage "is bad" that are not even rational on their face, and then the political stuges duke it out along partisan lines.

    But the whole "just read the constitution" and "anything else is judicial activism" crap is just pathetic. If you've read one page of any of the court decisions affirming gays' constitutional rights to marriage you'd know this. But it's just so much easier to be a 'dittohead' and say whatever Rush Limbaugh says.

    Why be right when you can feel right?

    BruceM: So anti-miscegenation laws are perfectly constitutional. They only discriminate against blacks that are attracted to whites and vice versa. It's quite fair to blacks and whites equally, as long as they are attracted to the same race.

    That was the original argument with respect to equal protection. First of all, Loving v. Virginia was decided on both Due Process and Equal Protection grounds. But that's essentially what the Supreme Court had originally held in Pave v. Alabama, later overturned by Loving v. Virginia in 1967, in which the Court stated:

    Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

    These days I'd say that most people think of Loving v. Virginia as a due process case than an equal protection case - the due process ground was much stronger than the equal protection ground.

    Anyway it's been established long ago that gay marriage bans discriminate against sexuality, not sex. And it's hard to make a plausible argument that it does discriminate against sex since both sexes are treated the same. But for equal protection issues it's better to have a claim based on sex discrimination than sexuality discrimination because in sex discrimination cases the government has a higher burden of proof ("intermediate scrutiny") versus the very low hurdle it faces with the "rational basis" test. And yes, I am a lawyer.

    I should note, with respect to previous discussion in this thread, that insofar as the right to marry is deemed to be a fundamental right, that doesn't mean the state must be involved in doling out marriages. It just has to avoid impermissibly interfering with them.

  • lukas||

    Mad Max,

    I'm all for extending the protection of those laws to pregnant men.

  • ||

    Justen: "religions don't get to hold intellectual rights to words"

    my comment has nothing to do with the debate, but i found the above comment ironic given that the gay community has hijacked the words 'gay' and 'queer' to the point that they are politically incorrect.

  • ||

    Religion, in its proper context is built around reality and takes the best that science has to offer. It is meant to give meaning to life and to guide moral action in accordance with a higher power.

    Any religion, no matter how moderate, relies on certain first principles which are usually not informed by science, and to some degree on the idea of heresy. It is simply not open to revision to any useful degree.

    I've always found the idea that moral rectitude requires an omnipotent despot strange. Why rely on invisible sky fairies when we can have Kim Jong-Il?

  • ||

    "I'm at the point where I know longer give a fuck HOW it happens. The banning of gay marriage is a rank injustice based on out-dated prejudices against gay people and it's long overdue that such bans be struck down in every enlightened civilization, everywhere."

    Just read that comment and let it marinate in your brain for a little while.

    Welcome to fascism.

  • BruceM||

    Jim: Equality under the law is fascism?

    Was it fascism to end slavery? We even fought a war over it. Northern fascists trying to force their morality on the southern people who just want to exercise their state's rights (i.e. state's rights to have slavery).

    Was it fascism to end jim crow laws? Was it fascism to let black people vote and serve on juries? People wanted to preserve the status quo, and they made similar "tradition" arguments for why blacks shouldn't be allowed to have such rights.

    You need to go to the dictionary and look up the word "fascism" (like many other right-wing christians who love to toss the word around). Fascism does not mean preventing christians from forcing their morality on the rest of us, even if "the rest" is a minority.

    Anyone who says that X people should not have the same rights as Y people are presumtively wrong and better have a VERY COMPELLING reason to justify the discrimination. And "the bible says so" is not the least bit compelling.

  • ||

    I am so excited, when they carry this to it's logical conclusion, I will be able to marry the one that I love. I just hope my horse will fit in the chapel.
    This proves even morons can become judges.

  • ||

    BruceM -

    Your self-confidence is woefully misplaced. You are probably incapable of understanding the intellectual vapidity of your statements, so I'll try to elaborate more slowly.

    "I'm at the point where I know longer give a fuck HOW it happens."

    In other words, this poster does not care if the court rules inappropriately, as long as the outcome is what he/she wants. That mentality, (the ends justify the means) is what allows for re-education camps, death squads, etc. Maybe I could be more generous with my interpretation of the post, but should I? The statement is pretty clear and unqualified:

    "I'm at the point where I know longer give a fuck HOW it happens."

    That seems to encompass any and all means necessary to accomplish the goal, regardless of whether they compromise our system of government or not.

    With regard to your other points:

    1 - The Confederacy seceded over the issue of slavery. However, the war was fought to preserve the Union. You will find many libertarians who do not support slavery, but nevertheless support the right of states to secede. I'm not interested in that argument. It was an extremely unfortunate turn of events, and ultimately I support Lincoln's decisions, even though there was grave damage done to the country in the process.

    2 - Do you know why segregation was legally possible? Do you know how it came about, and how it ended up being in place for 100 years? A decision of the Supreme Court. Plessy v. Ferguson, which established the precedent of "separate but equal". The decision in Brown v. Board of Education was only necessary because of the Court's previous ruling in Plessy.

    3 - The Civil Rights Act, Voting Rights Act, etc. were passed by Congress, not imposed by the courts.

    4 - I know this may be a difficult concept to grasp, but equal rights under the law applies only to people and situations which are the same. That is what I was getting at with my previous statement. If you cannot PROVE, EMPIRICALLY, through scientific means, that homosexuality is an inborn, unchangeable trait, like race and sex, you cannot support the claim that homosexuality deserves Constitutional protection on the same grounds that we prohibit racial or sexual discrimination.

    5 - Equality is not the primary object of our system. The primary foundational principle is SELF-GOVERNMENT - the right of the People to make the laws under which they will be governed, free from the exercise of arbitrary power on the part of a governing elite. The protection of minority rights is a secondary corollary. That protection is guaranteed in the Bill of Rights through the preservation of POLITICAL FREEDOM. Simply put, supporters of gay rights have the right - through Freedom of Speech, Freedom of Assembly, and Freedom of the Press - to ARGUE in the COURT OF PUBLIC OPINION in favor of their position, in the attempt to convince their fellow citizens to vote in their favor. That's the way it's supposed to work.

    There is no right to marriage in the Constitution, gay or otherwise. There is also no right to abortion. This is where we have gone completely off the rails. And before you eagerly embrace the means justified by your ends, remember that those same means can be used against you once they've been unleashed.

  • Mike||

    Sorry, BruceM, but you're wrong. Actually, the Air Force is unconstitutional as a separate military branch, so for those of us who want an Air Force, we can amend the constitution. The writers of the constitution were smart enough to realize that they could not see every future contingency, so they came up with two ways of altering the constitution. I'm no fan of the 16th amendment creating the income tax, but at least I concede that they did it right. The progressives knew that the income tax was unconstitutional, so they amended it. If this happened today, they would just get 5 justices to find the "penumbras" in the constitution that "implied" an income tax, or find that the government had a "rational basis" for the needed "state interest". Of course, all of this is total BS, but that is the way most court decisions go now, which is why we now have a huge federal government.

    "But if we had to amend the constitution every time we wanted to give the goverment a new power, that would make it much harder to pass new laws!", you say? That is exactly the point.

    The Equal Protection Clause says that government cannot "deny to any person within its jurisdiction the equal protection of the laws". In other words, a law has to apply to everybody. If the government said, "Anyone who fails a literacy test cannot vote, and only black people have to take the test.", that would be a violation of equal protection. Sorry to inform you, but the clause would not make unisex bathrooms illegal. It also doesn't prevent government from passing a lay saying that you can marry only people of the opposite gender, as long as the law is applied to everyone.

    "But I think gay marriage is a good idea!", you say? So do I, but it is not the court's job to make that decision. Here's a question: is there any law that

    A: You strongly disagree with.

    and

    B: You would still uphold as a judge.

    If the answer is no, guess what! You're a judicial activist, and part of the problem.

  • ||

    Buzz: "All people in Iowa, regardless of sexual preference, have the exact SAME rights regarding who they can marry. All people have the right to marry any other single human person who is not an immeadiate relative, not already married, adult, consenting, an of the opposite sex. Same for everyone. No one currently enjoys the right to marry whomever they love."

    I'm sick of hearing this ignorant, irrational approach. First, it's clear gender discrimination. Second, by that same logic, interracial marriage bans are perfectly fine, since everyone has the same right: to marry someone of their own race. Right?

    Anyone who advocates that gay man should marry straight women and lesbians should marry straight men should get to know some gay people. I can tell you from experience that, having been born gay, it would not only be unfair to another woman, but also to myself, to marry her. I should have the right to marry someone of my own gender, just as a straight person has the right to marry someone of the opposite gender. I'm sure you would agree had you been born gay.

  • BruceM||

    Jim: The notion that a law passed by congress is more worthy of respect than a judicial ruling on constitutionality is typical right-wing christian bullshit. Like those in Congress gives a rat's ass about what those elected them think. Laws are passed to create or preserve money and power. Nothing more. A decision made by someone facing an election is worthy of far LESS respect than a decision made by someone with life tenure who doesn't have to worry about elections (though they're still accountable for breaking the law via impeachment).

    And no, the Civil War was fought over slavery. Not states' rights. Not cesession. Slavery. Nothing more. "Preserving the union" was political spin like "counting all the votes" (which democrats want to do to get AlGore Elected and republicans now want to do to get Norm Coleman elected). If the confederate states had ended slavery and still wanted to withdraw from the union, the North would have been just fine with it. Everyone knew, at the time, that the South is a cultural and intellectual and financial drain on the Union as a whole. Back then, stuff like "manifest destiny" and being as large a country as possible were very important. Nowadays we wouldn't let Puerto Rico become a state if they asked nicely (they have).

    By any standard of consistency, Brown v. Board was a prime example of "judicial activism" ("unelected judge-kings forcing us to integrate with damn niggers against the will of the people!!!" as your kind would say had you been living back then).

    Mike I'd love to see someone actually bring a case arguing the Air Force is unconstitutional. That's always my wacky example of "originalism" taken to its absurd extreme.

  • ||

    BruceM -

    You clearly have contempt for the American system of government.

    "The notion that a law passed by congress is more worthy of respect than a judicial ruling on constitutionality is typical right-wing christian bullshit."

    To the extent that you would view all of the founders of the country as right wing Christians, maybe your statement is an accurate description of your point of view. The concept of judicial review was not included in the Constitution, and remains (somewhat) controversial to this day.

    If you are arguing that the founders did not intend for laws passed through the legislative process (or by direct ballot initiatives) to be far more weighty than judicial rulings, you are displaying astounding ignorance.

    The same goes for your understanding of the Civil War. I'm not sure if this is too complicated for you to grasp, but it's rather simple. The Confederacy seceded over the issue of slavery -- but there would not have been any need for war if they had not seceded. Do you not get that? They seceded because they believed they would lose votes on the issue of slavery. Not being able to win the day through the democratic process, they seceded. Lincoln famously said "If I could save the Union with freeing a single slave, I would do it, and if I could free all the slaves without preserving the Union, I would have failed". If you want to call him a liar, go ahead.

    Regarding Brown v. Board of Education, again, you are willfully ignorant. I'll try to explain it to you one more time. Brown was a REVERSAL of a previous Supreme Court ruling in Plessy v. Ferguson. Plessy invented the concept of "separate but equal", just as Roe v. Wade invented the "right to abortion".

    In any event, you are making it increasingly clear that you share the tyrannical vision of the earlier poster. Your way or the highway, by any means necessary, Constitution, democracy, and liberty be damned.

  • ||

    I really should have zeroed in on this statement, which I skimmed past in your litany of incorrect assertions:

    "A decision made by someone facing an election is worthy of far LESS respect than a decision made by someone with life tenure who doesn't have to worry about elections (though they're still accountable for breaking the law via impeachment)."

    Well, there you go.

    You have made your position absolutely clear.

    Just out of curiosity, have you defined what particular flavor of totalitarianism you favor? I would assume you're a Communist, but your utter disdain for democracy seems more acutely Fascist. Of course, there's never been much difference between Fascism, Nazism and Communism in practice.

  • ||

    Marriage is not a right, it is a privilege granted by the state. Equal protections clause in the constitution has no bearing on this, because equal protections clause protects the rights of individuals, not groups.

  • nike shox||

    is good

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