Family Issues

Iowa Supreme Court Strikes Down Gay Marriage Ban

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Today the Iowa Supreme Court unanimously overturned the state's ban on gay marriage, concluding that it violates the state constitution's guarantee of equal protection. That provision, the court said, "is essentially a direction that all persons similarly situated should be treated alike." After concluding that same-sex and opposite-sex couples are "similarly situated" with respect to the purposes of Iowa's civil marriage law, the court applied a level of scrutiny between the "rational basis" test used for most laws challenged on equal protection grounds and the "strict scrutiny" used for laws affecting "fundamental rights" or involving "classifications based on race, alienage, or national origin." Examining the official rationales for the gay marriage ban one by one and finding each of them unpersuasive, the court concluded that the law could not survive "intermediate scrutiny."

I like the policy outcome here, and I sympathize with the argument that the principle of equal protection should compel the government to treat gay and straight couples in an evenhanded manner. But this decision, like the California Supreme Court's similar ruling last year, seems to be another example of result-oriented jurisprudence that ultimately undermines a constitution's ability to constrain government action and protect individual liberty. If you read the court's analysis as it goes through the arguments for a gay marriage ban and (correctly, in my view) finds each of them wanting, it's hard to see how this process differs from what legislators do.

It's clear that the Iowa constitution's equal protection clause, at the time it was adopted, was not understood to prohibit a law limiting marriage to a man and a woman (assuming the issue would even have been intelligible). So the basis for saying that such a law is inconsistent with that clause today has to be an evolving understanding of what equal protection entails, especially regarding what it means to be similarly situated. But barring a constitutional amendment, judges can implement this new understanding only by reinterpreting the clause to mean something it did not mean at the time it was written. That sort of license can lead to all sorts of mischief, as the evolving understanding of the U.S. Constitution's Commerce Clause (to pick one especially pernicious example) illustrates.

A summary of the Iowa Supreme Court's ruling is here (PDF); the whole thing is here (PDF). More Reason coverage of gay marriage here.

Update: The California Supreme Court decision legalizing gay marriage was overturned by last fall's Proposition 8, a petition-initiated ballot measure that amended the state constitution to define marriage as a union between one man and one woman. A constitutional amendment is less likely in Iowa, where the process is more cumbersome (as it should be):

To amend the constitution, the Legislature would have to approve a resolution calling for the change during the current General Assembly. The Legislature that takes office in 2010 also would have to take action.

If approved in two consecutive General Assemblies, voters would decide the issue in a statewide election. If not taken up this session, the soonest the issue could go on the ballot would be 2012. 

Although Republican legislators will try to pass a resolution, the Democratic leadership of the General Assembly has no interest in overturning the Supreme Court's ruling.

[Thanks to Mark Lambert for the tip.]

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  1. So Iowa has one of those Living Document Constitutions too? AWSOme!

  2. It’s not the job of the court’s to protect civil rights from unfair legislation and executive interference? Huh. An interesting lesson to be learned from Reason, of all places.

  3. It’s not the job of the court’s to protect civil rights from unfair legislation and executive interference?

    No, it’s the job of the courts to apply the law and the constitution to the facts at hand. Entirely different job, I would think.

  4. Also, it takes minimal digging to learn that the legislature supported this, but could not override the governor’s veto. I advise shifting all rhetoric from the sanctity of legislative process to the sanctity of governor veto power accordingly.

  5. max hats,

    Also, it takes minimal digging to learn that the legislature supported this, but could not override the governor’s veto. I advise shifting all rhetoric from the sanctity of legislative process to the sanctity of governor veto power accordingly.

    Then I change my comment to “This is an outrage!”

  6. No, it’s the job of the courts to apply the law and the constitution to the facts at hand. Entirely different job, I would think.

    Which is exactly what the court did, all attempts to frame it as OMG ACTIVIST JUDGES WRITING LAWS FROM THE BENCH aside. Their argument is that differentiating marriage rights by sexual orientation is unconstitutional. It was a unanimous decision.

  7. You constitutionalist libertarians are silly. Checks and balances are good. Limiting the power of the government is a good thing. Who cares what the constitution says?

  8. “That sort of license can lead to all sorts of mischief, as the evolving understanding of the U.S. Constitution’s Commerce Clause (to pick one especially pernicious example) illustrates.”

    Dogs and cats, living together!

  9. Eagerly awaiting the input of all the resident experts on the Iowa State Constitution.

  10. Mike D,

    Dogs and cats, living together!

    Stop talking about the gay people like that! And now you have called in the fringes that accuse gay marriage of being some gateway to bestality.

    Happy with yourself? Are you happy?

  11. One wonders if there will be an Amendment to Iowa’s State Constitution in the future.

  12. Yeah, like Roe v. Wade, it’s judicial overreach.

    I predict a 70/30 split when Iowans vote to amend the state constitution to explicitly exclude same-sex unions.

  13. IOWA SUPREME COURT HOLDS GAY MARRIAGE BAN UNCONSTITUTIONAL
    Libertarians and Mormons Hit Hardest

  14. Don’t worry, Rabbi Sullum. Gay is so goyish.

  15. It’s clear that the Iowa constitution’s equal protection clause, at the time it was adopted, was not understood to prohibit a law limiting marriage to a man and a woman

    I don’t quite get this, Jacob. Equal protection under the law is a pretty expansive concept. Why can’t–or wouldn’t–it be interpreted this way? This is a nitpick in need of a nit, methinks, in this case.

  16. This is great news. I don’t care what we have to do to get it done, I just want it done — let the boys marry the boys if they so desire, let the marijuana flow, and keep the government out of my goddamn bank account.

  17. I don’t quite get this, Jacob. Equal protection under the law is a pretty expansive concept. Why can’t–or wouldn’t–it be interpreted this way? This is a nitpick in need of a nit, methinks, in this case.

    Letter of the law! Original intent is a recipe for liberal overreach.

    Wait, wait, we’re talking about an equal protection law? And about homosexuals? Well of course original intent must be the primary consideration.

  18. “One wonders if there will be an Amendment to Iowa’s State Constitution in the future.”

    It will definitely be tried by the Republicans in the state legislature. I really don’t know if they will succeed or not. Iowa is a weird state we have a lot of progressives, but also a lot of religious people. People like Obama will win on the democratic side & people like Pat Robertson will win on the republican side.

  19. Hypothetical question for the constitutionalists out there:

    The 16th amendment clearly allows for an income tax. Libertarians oppose the income tax. If the SCOTUS came out tomorrow declaring the income tax unconstitutional, how many tears would you shed for our dying constitution? “Oh noes, those pesky judicial activists!”

    Constitutionalism has never been anything more than an excuse for social conservatives to pass their ideology off as libertarianism, and an unfortunate number of libertarians have taken the bait.

    If you want to argue against Roe v. Wade or Griswold v. Connecticut on Federalist grounds, that’s a discussion I’m willing to have (I still think you’d be wrong), but please, let’s let go of this absurd attachment to constitutions.

  20. This is great news. I don’t care what we have to do to get it done, I just want it done

    The ends justify the means, huh?
    Solana has a future in the criminal injustice system as either a cop or a DA.

  21. Wake us when homosexuals are routinely denied the right to buy automatic weapons and corn syrup.

  22. Jacob, I disagree with your assessment that the judges were interpreting in a modern context rather than when it was written. As it was written, equal protection is the intent of the law, not the definition of marriage as defined in 18??. Presumably it was not defined by the constitution.

    So, now a case has arrived where someone, as you agreed, was denied equal protection as the court said “when similarly situated.” The court first determined that gay couples are similarly situated as straight couples. Then they determed that equal protection was threatened. So they decided equal protection in the case before them must be awarded. The year of the case is irrelevant. They don’t tend to rule on something unless a case is presented. It is why they are there, to rule when in 2009 someone makes a challenge. Their decision was not based on social norms then or now. It was based on “now we have a case where equal proetection is challenged.”

  23. So by that same logic, the Second Amendment only speaks to the types of arms that existed in the late 1700s and the First Amendment doesn’t apply to the internet?

    Am I understanding the argument correctly?

  24. If you have an equal protection amendment that says you can not discriminate against sex, you can not say only opposite sexes can marry. All of the below is valid

    M+M
    M+W
    W+M
    W+W

    To say only M+W is vaild would be sexual discrimination.

    They could always appeal the equal protection amendment.

  25. Hypothetical question for the constitutionalists out there:

    The 16th amendment clearly allows for an income tax. Libertarians oppose the income tax.

    Thank you.

    The brilliance of the constitution is rooted in its championing of the principles of individual liberty and the right of the individual to his or herself. There are several amendments which are clearly at odds with the principles originally protected.

    I don’t think you can be a strict constitutionalist and a libertarian. Not with this constitution.

  26. The ends justify the means, huh?

    No.

  27. Brad,

    So by that same logic, the Second Amendment only speaks to the types of arms that existed in the late 1700s and the First Amendment doesn’t apply to the internet?

    No.

    Amendment II applies that the firearms of a typical infantryman are what they are talking about, per the language of the founders debating the issue as well as the Supreme Court back when they applied law instead of inventing it.

    First Amendment is about political speech, no matter how it is transmitted.

    Am I understanding the argument correctly?

    Not sure on that one. All signs point to no.

  28. Amendment II applies that the firearms of a typical infantryman are what they are talking about…

    First Amendment is about political speech, no matter how it is transmitted.

    That’s not the way my Bill of Rights reads…

  29. Funny, I can’t own any weapon that the typical infantryman uses today, execpt for his side arm.

  30. Funny, I can’t own any weapon that the typical infantryman uses today, execpt for his side arm.

    Because the Congress has violated your rights.

  31. HEB, the firearms of a particular infantryman? Huh? How about the right of everyone to be armed and to join a militia not be infringed?

  32. “””First Amendment is about political speech, no matter how it is transmitted.””””

    If Congressman Fire in in a movie theater, can I call him by yelling his last name? 😉

  33. That’s not the way my Bill of Rights reads…

    Does too.

  34. On this board, of all places, you people are ignorant of the 2nd Amendment and the decisions clarifying it?

    Or is this the troll chapter meeting after getting out of a Women’s Studies class?

  35. If Congressman Fire in in a movie theater, can I call him by yelling his last name? 😉

    Be my guest, right next to a cop after torching up a joint 😉

  36. Does too.

    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

  37. Tofu, you’re posting too much again.

  38. “””Because the Congress has violated your rights.”””

    Yeah, use that arguement at SCOTUS and see where it gets ya.

    “””How about the right of everyone to be armed and to join a militia not be infringed?”””

    Militia? That will really get the jackbooted thugs kicking your door down. It’s funny that we still have somewhat of a right to own a gun, but being part of a milita will get you on the terrorist watch list.

  39. Reason Editor | April 3, 2009, 3:37pm | #

    Reason Staff | April 3, 2009, 3:47pm | #

    Hey everybody…. Wave bye, bye to max hats.

  40. Seems like good reasoning to this non-lawyer. Equal protection is in the constitution. Gays are not equally protected under current marriage laws. The state demonstrated no legitimate interest in keeping said marriage law as it is. The next step seem pretty obvious.

  41. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

    So where does that allow the government to restrict your speech by mode of transmission?

  42. So where does that allow the government to restrict your speech by mode of transmission?

    I don’t really know what you’re talking about. My point is only that our freedom of speech is not limited to political speech.

  43. Vic, I’m saying how I interpret it based on the writings of Madison, not how SCOTUS or any other govt body understands it. Because they can’t read or choose to ignore it, isn’t my fault.

  44. Hey everybody…. Wave bye, bye to max hats.

    Everybody gets one.

  45. You think? That’s a shame. I like to think of the HnR gods as vengeful and angry, petty even. Darn.

  46. for the record, I was only Reason Staff.

    You aren’t allowed to do that? Oh well. Farewell cruel world.

  47. If High Every Body’s response is the best argument that I’m not understand the argument … it appears I’m understanding the flaws in the original post’s argument perfectly.

  48. It’s about the only real sin you can commit.

  49. As implied earlier, I suspect that the Constitutional Amendment will pass.

    Why?

    Well, Iowa voted in the ban. We’re not talking about a law that’s 3 or 4 generations old, either. We’re talking about a law that is, what? 3 or 4 *YEARS* old?

    Now, of course, I am as big a fan of gay marriage as anybody.

    I’m just depressed that the Constitutional Amendment will be a lot tougher to overturn than the law would have been.

  50. High Every Body: Where in the Equal Protection clause of the Iowa Constitution does it exclude gays or gay marriage?

    Are you now seeing my point … seeing as how you made my point for me?

  51. “””Vic, I’m saying how I interpret it based on the writings of Madison, not how SCOTUS or any other govt body understands it. Because they can’t read or choose to ignore it, isn’t my fault.”””

    Ah, and granted it’s not your fault, nor anyone on H&R, but we do live with the consquences. But whether or not we actually have a right is an interesting argument within its self. While I personally agree with your interpretation, I understand that what we believe is mostly irrelevant vs what we get to practice. You don’t really have a right if SCOTUS decides otherwise, regardless of what the Constitution says. You did but it was alienated.

    While one could argue that our rights are God given, or natural, it has to be understood that God didn’t bind governments to uphold them. What God gives, government can take away.

  52. “One wonders if there will be an Amendment to Iowa’s State Constitution in the future.”

    When Iowa corn-holers are outlawed, only outlaws will corn-hole in Iowa.

  53. “Tofu, you’re posting too much again.”

    No shit.

  54. Hmm, must be fun to argue about gay marriage “academically” when you know the end decision won’t affect you.

  55. Not everything that is bad is unconstitutional, Solana. It’s perfectly fine to be against an income tax and think that the 16th Amendment means it’s constitutional. Someone with that belief would then advocate for one or both of minimizing the tax or repealing the 16th Amendment.

    Original public meaning is the only systemically valid way of interpreting a written constitution. Otherwise you’re allowing de facto amendment by a judicial oligarchy.

  56. “It’s about the only real sin you can commit.”

    I’ll vouch for that.

    And he really does make me sleepy.

  57. So the basis for saying that such a law is inconsistent with that clause today has to be an evolving understanding of what equal protection entails, especially regarding what it means to be similarly situated. But barring a constitutional amendment, judges can implement this new understanding only by reinterpreting the clause to mean something it did not mean at the time it was written.

    This is idiotic.

    The people who wrote both the federal and Iowan constitutions and the amendments thereto indulged themselves in a little expansive poetry about freedom and equal protection. They then patted themselves on the back about what great legislators and lovers of liberty they were. And the words they wrote have meanings that, despite your protestations to the contrary, are in many cases pretty easy to discern. And when the plain meaning of those words would seem to go against the social norms prevalent centuries ago, those social norms are just going to have to suffer.

    It just doesn’t matter if the people who wrote the Constitution would not have thought that freedom of speech applied to pornography. And it just doesn’t matter if the people who wrote the 14th Amendment would have thought that it applied to the right of gays to marry. They wrote the words that they wrote, and if those words can be applied to situations the authors did not anticipate, tough shit for the authors.

    The 14th Amendment in particular is pretty easy to understand. There’s not a lot of ambiguity to parse. The word “equal” has a straightforward mathematical meaning that has not changed since 1865. The states ratified an amendment containing that word, and that means that any instance of unequal application of the laws I can find is voided by that amendment, no matter what the Congress thought it was passing and no matter what the legislatures thought they were ratifying.

  58. “Hmm, must be fun to argue about gay marriage “academically” when you know the end decision won’t affect you.”

    How does’t it affect me?

  59. Vic, point taken re: what we can actually do in practice. I’ll concede that we’re all still fucked regardless.

  60. But this decision, like the California Supreme Court’s similar ruling last year, seems to be another example of result-oriented jurisprudence that ultimately undermines a constitution’s ability to constrain government action and protect individual liberty.

    So the court rules in a way that favors individual liberty and constrains government from abridging it, but that’s not the BIGGER PICTURE HERE.

  61. “So the court rules in a way that favors individual liberty and constrains government from abridging it, but that’s not the BIGGER PICTURE HERE.”

    The notion that “Government acting to limit the power of government is dangerous because it gives government too much power to limit its own power!” is absolutely moronic.

  62. I waited all day for this shit!?!?!

    Anyone outside the state of Iowa can shut the fuck up about whether or not we will pass constitutional ammendment.

    From recollection:

    Ammendements to the consitution must be passed by different legislatures — in other words, the legistature must pass the ammendment then an election must occur, then the new legislature must pass the same ammendment. Then and only then will the general population get to vote.

    The state of Iowa is one of the purplest in the union. We voted for Gore over Bush, Bush over Kerry, and then Obama over McCain. We have one of the most conservative senators (Grassley) and one of the most liberal (Harkin). Over the last decade the state legislature has been nearly fifty/fifty Democratic/Republican party control with control changing a couple of times.

    It seems highly unlikely that any campaign to change the constitution can pass all the hurdles that are required.

  63. Constitutionalism has never been anything more than an excuse for social conservatives to pass their ideology off as libertarianism, and an unfortunate number of libertarians have taken the bait.

    Constitutionalism is people giving government the right to do certain things and denying government the right to do other things. It is a mechanism for restricting the power of the state. How exactly is this at odds with libertarianism?

    Certain provisions in any constitution are bound to give libertarians heartburn, but to cite this as reason to scrap the whole concept is foolish, short sighted, and ultimately harmful to liberty.

    When constitutions are not interpreted to mean what they meant at the time they were written, they gradually lose any coherent and recognizable meaning. The limitations they place on the state gradually lose their force, and we are left to rely on the whims of unelected judges to restrain the state and protect individual rights.

    Faithful adherence to a constitution’s original meaning is a prerequisite for the rule of law, and the rule of law is a prerequisite for a libertarian society.

  64. Brandon,

    I’ll be the first to admit that, insofar as constitutions limit the power of government, they are a good thing and should be followed. But more and more I see so-called libertarians insisting that the constitution be followed, right or wrong, and feel that I must point out that it is very often wrong, and unlibertarian. It is used as an excuse to *enable* the government to act in unlibertarian ways, and when it does that, it is of no use at all, and should be ignored.

  65. “To withstand intermediate scrutiny, a
    statutory classification must be substantially related to an important
    governmental objective.”

    Anyone care to explaing what important government objective is met by preventing two men or two women from getting married.

  66. The court ruled in a way that favors individual liberty (expands it really), consistent with the state’s constitution and libertarians still bitch. What’s it like inside your heads?

  67. It’s the court’s job to determine what the constitution requires in a given dispute. It’s not the job of the legislature, the governor, or Jacob Sullum. If a court majority decides the constitution requires lollipops for all, that’s what it requires (until that decision is overturned.)

    “Strict constructionism” is nonsense and always has been. It’s a way for people to make their policy wishes sound like they’re endorsed by George Washington himself. If constitutions really require us not only to read minds, but read the minds of people long dead, then the only recourse is to have regular constitutional conventions so we can update them to reflect modern times. But they don’t.

  68. “The court ruled in a way that favors individual liberty (expands it really), consistent with the state’s constitution and libertarians still bitch. What’s it like inside your heads?”

    Because a piece of paper told them to. Seriously…

  69. A very straightforward interpretation of the words in the constitution says that people in similar situation must be treated similarly by the law — this is the original interpretation of the constitution.

    What has changed is that one hundred years ago an overwhelming percentage of the population would have agreed that two faggots are not the same as a husband and wife because one faggot can fuck another faggot and make a baby.

    Today, I don’t believe that the majority of the population of Iowa would tell you the principle purpose of marriage is to make babies. There is a hard-core set of religious conservatives that will tell you that, but I don’t expect that most of the population of Iowa would tell you that.

  70. It is used as an excuse to *enable* the government to act in unlibertarian ways, and when it does that, it is of no use at all, and should be ignored.

    You want judges to enforce the parts you like and ignore the parts you don’t. Wouldn’t that be nice.

    What happens when you and the judges disagree about which parts should be enforced and which ignored?

  71. What has changed is that one hundred years ago an overwhelming percentage of the population would have agreed that two faggots are not the same as a husband and wife because one faggot can’t fuck another faggot and make a baby.

    Minor change of meaning, oops 😉

  72. Those FLDS people should have lived in Iowa instead of Texas.

  73. Polk County actually argued that a homosexual couple is not similarly situated as a heterosexual couple because they can’t make a baby by natural means.

    Once you reject that, the outcome is straightforward.

  74. “You want judges to enforce the parts you like and ignore the parts you don’t. Wouldn’t that be nice.”

    Yes.

    “What happens when you and the judges disagree about which parts should be enforced and which ignored?”

    I’ll call them bad judges.

  75. It is used as an excuse to *enable* the government to act in unlibertarian ways, and when it does that, it is of no use at all, and should be ignored.

    Individuals acting on their own may choose to ignore the constitution as long as they are willing to accept the consequences.

    Governments should not ignore the constitution.

  76. one faggot can’t fuck another faggot and make a baby

    What if a gay dude fucked a lesbian and got her pregnant? Huh? He might have to fantasize about…shit, I have no idea who gay guys fantasize about. Tony Romo? Danny DeVito? But you get my point, which is that I have no point.

  77. What if a gay dude fucked a lesbian and got her pregnant?

    But why would a faggot wanna fuck a dyke in the first place.

  78. “But why would a faggot wanna fuck a dyke in the first place.”

    So he could get married, obvs.

  79. But why would a faggot wanna fuck a dyke in the first place.

    To prove to himself that he wasn’t straight?

  80. I have no idea who gay guys fantasize about.

    Depends on the guy. Dudes who like dudes are not the Borg. They do not act and think as one. Some of them are libertarians, in fact! They’re just dudes who like dudes. Or, to the objection, I guess, of nobody — faggots.

  81. I’ll call them bad judges.

    Cute.

    You’re the first libertarian I’ve encountered to argue that arbitrary governance is the pathway to liberty. We’ll find out soon enough.

  82. Dudes who like dudes are not the Borg. They do not act and think as one.

    Uhh…no shit. But I have no idea who might be a candidate for even some of them. Jean-Luc Picard, maybe? LOCUTUS FAN FICTION FTW

  83. LOCUTUS FAN FICTION FTW

    Alright, that’s fair.

  84. “You’re the first libertarian I’ve encountered to argue that arbitrary governance is the pathway to liberty. We’ll find out soon enough.”

    Interesting way of phrasing it, but no I’m not:

    http://www.lysanderspooner.org/notreason.htm

  85. Depends on the guy.

    Oooh, close. I’m sorry, we were looking for “Mario Lopez”. “Mario Lopez”.

    Epi, you control the board.

  86. For that matter, why do you assume that the only alternative to “the Constitution is always right” is “same government minus the Constitution”? Is your thinking really that narrow?

  87. Um…Jared Padalecki?

  88. But I have no idea who might be a candidate for even some of them.

    Don’t be naive. I can look at a girl and deduce that her perky breasts, hourglass shape, and symmetrical features might appeal to a hetero dude. I just don’t want to sleep with it.

  89. When constitutions are not interpreted to mean what they meant at the time they were written, they gradually lose any coherent and recognizable meaning.

    Look, Brandon, let’s break it down as simply as possible.

    Let’s consider the first two clauses of the First Amendment to the federal Constitution:

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press;

    It would be very easy to prove by having recourse to existing statutes at the time, reading diaries and letters, etc., that the Founders who ratified the Constitution and its first ten amendments would have thought it entirely proper for the government to prohibit the publication of Hustler.

    But that’s not the words they wrote.

    They may have failed to actually apply this amendment to their own government in a thorough and honest way, but they still wrote the motherfucking words.

    And they’re not really ambiguous. They’re only unclear if they’re approached with dishonest intentions.

    The definition of the word “Congress” hasn’t changed. The definition of the words “shall make no law” hasn’t changed. The meaning of the word “abridging” hasn’t changed. And the meaning of the word “speech” hasn’t changed.

    And if anyone says, “Oh, but they meant political speech” or “they meant godfearing speech” or whatever, well – they had their chance to write that and they didn’t write it.

    The Founders were notorious hypocrites who personally failed to live up to the ideals of their writings and their public statements all the time. That, to me at least, means that I’m entitled to read the plain meaning of the words as written, and if someone tries to “prove” to me that they don’t mean what they say because James Madison wrote something different in a letter somewhere, well – too bad for James Madison.

  90. Fluffy–

    And I think a strong case can be made that the vagueness of the words is purposeful. The document has survived this long hasn’t it? Even through the greatest societal and technological advancements in history.

  91. Um…Jared Padalecki?

    Sure, that’s a start I guess. Then, conversely, Hugh Jackman.

  92. Jared Padalecki for $800:

    “Padalecki starred alongside this socialite in the 2005 masterpiece House of Wax.”

  93. I can look at a girl and deduce that her perky breasts, hourglass shape, and symmetrical features might appeal to a hetero dude. I just don’t want to sleep with it.

    Look, Mr. Sockpuppet, assuming you are real and gay, trust me, you have no taste in women. Gay guys think they know what chicks are hot and they are utterly wrong much of the time.

  94. Then, conversely, Hugh Jackman.

    Yes, I was aware of the Jackman thing.

    “Padalecki starred alongside this socialite in the 2005 masterpiece House of Wax.”

    Paris Hilton.

  95. If the Republicans are smart about this, they’ll drag out the process for the referendum on a constitutional amendment so that it coincides with the general election in 2012.

    Most of the progs in Iowa are of the union faction, whose zeal on the gay marriage issue doesn’t remotely match that of evangelicals.

  96. they are utterly wrong much of the time

    Please please please tell me this includes Tyra Banks. She is proof there is no God, or that there is a God, but he doesn’t watch television (which is absurd).

    And we were looking for “Who is” Paris Hilton. Minus $800 for Epi.

  97. Wait, Tyra Banks isn’t a drag queen? Why did I think Tyra Banks was a drag queen…

  98. you have no taste in women

    Exactly. No taste whatsoever. But I can appreciate good looks and not pretend that some 400 lb granny with a hunchback might just as well be as appealing as a 20 year old underwear model.

    I have this theory. I’m allowed to be disgusted by female parts because I have spent my entire life avoiding them. But dudes live with dude parts every second of every day, and heteros don’t go vomit every time they look at them in the mirror. Something doesn’t add up when they say “I’m so macho; that’s gross ewwwww.”

    And I’ve spent enough time in frat houses to know that either most frat guys are closeted or, more likely, their homophobic banter is feigned.

  99. Who is Paris Hilton?

  100. I mean… look at him.

    I’m not sure if you are drooling over him or saying you think he looks like a dink.

    Please please please tell me this includes Tyra Banks.

    Unfortunately, no. She may be an asshole but she’s anything but ugly.

    And we were looking for “Who is” Paris Hilton. Minus $800 for Epi.

    AARRRGGGHHH…What is “fuck you Alex”?

    Next question please.

  101. Tony, why can’t you be disgusted by what you are disgusted by and acknowledge that some other people will be disgusted by what they will be disgusted by.

    I mean… dirty dishes in the sink disgust me. Especially if my vegan roommate has been cooking.

    We’re all different!

    I think Zoe Deschanel and Hugh Jackman are equally dreamy, for example, but in different ways.

    Different!!!

  102. But I can appreciate good looks and not pretend that some 400 lb granny with a hunchback might just as well be as appealing as a 20 year old underwear model.

    My point is that if we line up 10 girls all in good shape you would have no idea who is the hottest and why. Just as I would have no idea with a lineup of 10 guys, unless of course I was in the lineup and then I win.

    I’m allowed to be disgusted by female parts because I have spent my entire life avoiding them. But dudes live with dude parts every second of every day, and heteros don’t go vomit every time they look at them in the mirror.

    I’ve never gotten why gay guys are so disgusted by pussy and tits, but then again, my own fascination with them probably clouds my judgment.

  103. “””Wait, Tyra Banks isn’t a drag queen? Why did I think Tyra Banks was a drag queen…”””

    Who is Rupaul.

    “””But dudes live with dude parts every second of every day, and heteros don’t go vomit every time they look at them in the mirror.”””

    No, but some guys have to spit in the urinal when they take a leak as if they get a bad taste in their mouth when their hand touches a penis. I’m not judging.

  104. My point is that if we line up 10 girls all in good shape you would have no idea who is the hottest and why.

    But I doubt you’d get 100% agreement even if all the judges were hetero males.

    I’ve never gotten why gay guys are so disgusted by pussy and tits

    Because there should be hard pecks and a willy there!

  105. “”””And we were looking for “Who is” Paris Hilton. Minus $800 for Epi.”””

    Damn. I hit submit too late.

  106. This conversation has exhausted me and left me feeling gayer than I normally do. I’m going to go hit up a happy hour before it goes away.

  107. But I doubt you’d get 100% agreement even if all the judges were hetero males.

    It would be closer than you think.

  108. I must comment that gay marriage is alive and well in Texas. I have never seen so many married gay dudes in my life until I moved here.

  109. Most of the hetero guys I know would fuck just about anything with a vagina, so I don’t know about this universal standard of female attractiveness that I’m not privy to.

    One of the hard parts about being gay is the ridiculous standards. You’ve either got to have a swimmer’s build or a Ferrari to get anywhere. Sigh.

  110. I’ve just RTFO. I have trouble seeing what Jacob’s problem is.

    On pp. 17-18, the court lists numerous invidious classifications that have been struck down by courts in Iowa, beginning in 1839 (when it was still a territory). As the court puts it, each of those cases represented “a fork in the road[.]” It’s in the nature of law to be applied by courts to new situations.

    What does and does not violate one’s right to “equal protection” is not obvious from the text of the Iowa constitution. The language needs to be interpreted in specific factual contexts. We don’t want to rule out all classifications. (I think it’s a good idea not to allow murderers to inherit from the victims, for example.)

    So how do we decide which ones to allow? Courts devise tests. Here, the court applied “intermediate scrutiny.” It examined the reasons offered by the State, to determine whether they are important government objectives and whether the classification is substantially related to them. In each instance, the court found that the classification was not substantially related to the State’s express objectives.

    How else should the court have proceeded?

  111. Tony, you’re saying that gay guys will only fuck super hot dudes but that straight guys will fuck anything? That doesn’t make sense. At the end of the day, dudes are dudes. They’re all equally horny regardless of who they want to shove it in.

    And, for the record, some of us have standards.

  112. One other baseline observation on gay marriage as an issue: this is a question of whether the government is required to grant recognition to one type of union because it grants recognition to another type. In some states (not in CA, I’m not sure about Iowa), it was also a question of whether the government could attach benefits not otherwise available to a legal status that required another person, and that the other person be a different gender.

    Not too much liberty being argued, in any event.

  113. And, for the record, some of us have standards.

    Yeah, Tony. I’m way too vain to fuck anything with a vagina, female or male. Quality over quantity, my man.

  114. Episarch,

    You’d think so. I dunno. It’s possible all my hetero friends are just pathetic. No, not possible, true. Otherwise they’d be banging their hot girlfriends instead of hanging out with me.

  115. ahem

    *I’m way too vain to fuck just anything with a vagina…

  116. The Founders were notorious hypocrites who personally failed to live up to the ideals of their writings and their public statements all the time. That, to me at least, means that I’m entitled to read the plain meaning of the words as written, and if someone tries to “prove” to me that they don’t mean what they say because James Madison wrote something different in a letter somewhere, well – too bad for James Madison.

    I don’t disagree at all. There is a large difference between following the original intent of the framers and following the original meaning of their words. I referred to the latter in my posts. Scalia himself acknowledges the foolishness of attempting to fathom the intentions of the constitution’s authors. How then he and Thomas arrive at some of their more socially conservative outcomes, including those denying equal protection to gays, I won’t pretend to explain or defend.

    I wasn’t attacking this decision necessarily; I haven’t read Iowa’s constitution. I was defending constitutionalism on principle.

  117. But dudes live with dude parts every second of every day, and heteros don’t go vomit every time they look at them in the mirror.

    Whoa whoa whoa, slow down.

    The fact that I have something doesn’t mean that yours isn’t gross.

    I have an asshole, but I don’t want to lick anyone else’s.

    So the fact that I have a dick has no bearing on whether or not it would be gross to put one in my mouth.

  118. I’m way too vain

    You too?

    It’s possible all my hetero friends are just pathetic.

    It’s not uncommon.

  119. Fluffy –
    I think Tony’s referring to the “OH GOD!” reaction some “straight” guys have when they are watching a movie or something and some wang appears for a few seconds.

  120. I don’t disagree at all. There is a large difference between following the original intent of the framers and following the original meaning of their words. I referred to the latter in my posts. Scalia himself acknowledges the foolishness of attempting to fathom the intentions of the constitution’s authors. How then he and Thomas arrive at some of their more socially conservative outcomes, including those denying equal protection to gays, I won’t pretend to explain or defend.

    Then we don’t really have a disagreement.

    But you seem to be defending the mode of constitutional interpretation known as original intent. And one way that mode is applied is to review laws that the Founders’ generation did not strike down, despite the ratification of the Bill of Rights, and from that conclude that the Bill of Rights does not apply to laws of the same general type. Because the “intent” of the Founders can be deduced from the rest of the body of law they produced.

    If you don’t agree with that formula, then you don’t actually believe in the doctrine of original intent – even if someone has convinced you that you do by using examples from a different context, like economic law or regulatory law.

  121. Oh, OK Reinmoose.

    I thought he was making a more aggressive general defense of the attractiveness of “guy parts”, which as we all know are just gross.

  122. I think Tony’s referring to the “OH GOD!” reaction some “straight” guys have when they are watching a movie or something and some wang appears for a few seconds.

    You must be referring to the MPAA.

  123. You must be referring to the MPAA.

    Well, they do have to watch Kevin Costner movies…

  124. Well, they do have to watch Kevin Costner movies…

    That’s no excuse. We’ve all had to watch a Kevin Costner movie at one time. We survived. Barely.

  125. Fluffy,

    It’s original public meaning. See here and here

  126. Hey Tony, I hear your frustration.

    Your hetero guys may say they will screw anything female, but they are lying. They want the girl to have a hot swimmers bod and a fararri, too. For a woman who is a few pounds over weight, or a few years over 30, or just born with a face that is on the homely side, getting a straight guy to look at you is pretty tough.

    Wish it wasn’t true, but it’s not a double standard. Guys are waaaay more picky than they think they are.

  127. Were gay marriages performed in Iowa before the ban was in place?

    The anti-gay marriage crowd might not be doing it’s self any favors if they are pushing for bans in places where gay marriages are not being done.

  128. TrickyVic,

    A district court judge ruled that it was legal in Iowa back in 2007.

    http://en.wikipedia.org/wiki/Same-sex_marriage_in_Iowa

  129. I have an asshole, but I don’t want to lick anyone else’s.

    You want to lick your own?

    Trust me, I’m not saying there’s anything wrong with that, just thought that humans were more inhibited about that stuff.

  130. The anti-gay marriage crowd might not be doing it’s self any favors if they are pushing for bans in places where gay marriages are not being done.

    Ah, I see. Opponents of gay marriage must wait until after marriages are already happening before they try to ban it, at which point pro-gay-marriage folks will screech about how they’re taking away liberties.

  131. It’s a bit disingenuous to complain about one side acting in advance when that side needs to go through the long, difficult process of getting a constitutional amendment passed, while the other side just needs a friendly bunch of activist judges to decide in their favor one day.

  132. I read this critique of the decision.

    “I am having a hard time caring one way or the other if men marry men and women marry women. Really. It just doesn’t matter that much to me. Frankly, it isn’t my place to tell other people how they should live their lives. I wish the left would give me the same consideration, but that just isn’t how they roll.

    Here is what does bug the hell out of me about this ruling. Deep in the opinion is this gem?

    (1) “[E]qual protection can only be defined by the standards of each generation.” (p. 16)

    The “living, breathing document”, once again, crawls from its grave. When judges tell us that the constitution – national or state – is open to changing interpretation, they are telling us the document means exactly nothing. They are telling us that there are no universal truths or objective facts in the documents. Everything is open to interpretation by jurists. If they tell us that, “by standards of this generation”, free speech doesn’t mean political speech, that is what the living breathing constitution has evolved to mean. Deal with it. The words don’t necessarily mean what the words say, you see. They tell us, the words mean what they “interpret” them to mean. In other words, the document isn’t worth the parchment it is written on.”

  133. Chris, stop trying to threadjack our discussion about whether straight guys are picky about women as opposed to gay guys being picky about guys.

  134. The constitutional interpretation debate is an interesting one. I doubt that founding fathers intended it to be so ridged that society would outgrow it and I doubt they wanted a relative document open to democratic interpretation. They were serious about the rules and concepts, and they knew, well hoped, it was long lasting.

    “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,”

    Take “papers” for example. Why is it there, and what does it mean? Being that most things were written on paper back then, one could easily argue that your personal documents, diaries, and such, were items intended to be covered under the term “papers”. But what is most important, the term “papers”, or the items which our founding fathers wanted protected? Does anyone disagree that the founding fathers intended personal documents, and diaries, to be off limits without a warrant? Did the founding fathers intend exclusion of new technology when it applied to protected items? How should that work if your diary is not longer on paper? Or, did they intend for us to amend the Constitution when new methods were developed?

  135. “””Ah, I see. Opponents of gay marriage must wait until after marriages are already happening before they try to ban it, at which point pro-gay-marriage folks will screech about how they’re taking away liberties.”””

    Nope, not what I meant at all.

    If you really don’t want gay marriage and no one is doing it, don’t do something that would put up a big bright sign saying “gay marriage now legal here” for the world to see when the ban is overturned.

  136. Nothing disingenuous about that.

  137. “It’s clear that the Iowa constitution’s equal protection clause, at the time it was adopted, was not understood to prohibit a law limiting marriage to a man and a woman (assuming the issue would even have been intelligible). So the basis for saying that such a law is inconsistent with that clause today has to be an evolving understanding of what equal protection entails”

    This is where I think the room for a legitimate evolution of understanding exists. Homosexuality was not understood to exist at the time the Iowa constitution was written, so there was no intent there to allow gay marriage. There was an intent for people to be treated as equal before the law, allowing only free actions to be punishable. When the understanding changed to “homosexuality exists, but is a choice,” this standard was able to prohibit gay marriage. When the understanding changed again to “homosexuality is a natural state of some people,” the clause moved into effect and made the ban unconstitutional.

    The change is in a finding of fact, and that is the change that allows the original intent of the clause to move into effect properly here. Findings of fact ARE within the scope of our courts.

  138. Gay marriage wasn’t explicitly banned in Massachusetts when the courts wrote it into the law there either. In the snippet you quote I was actually replying to Warty and referring to the current lawsuit in CA claiming that the marriage ban is unconstitutional because it takes away existing liberties.

  139. Homosexuality was not understood to exist at the time the Iowa constitution was written

    This is stupid. Of course it was understood to exist…

    When the understanding changed again to “homosexuality is a natural state of some people,” the clause moved into effect and made the ban unconstitutional.

    Bestiality and a desire to marry close relatives or more than one person are also a natural state for some people. Of course these are not equivalent to homosexuality, but the reasoning you use demands that you recognize those types of marriages as well.

  140. Thanks for the answer Cabeza.

  141. Michael, in what way is the left stopping you from living your life as you please?

  142. @crimethink:

    Homosexual acts were probably understood at the time of the writing of the Iowa equal protection clause, but the idea of being homosexual as an identity probably was not.

    And the natural state argument isn’t the only component of law. If it is your natural disposition to cause harm to others (say via mental illness), then the courts can commit you to a mental institution to prevent such harm. Incest and bestiality can be argued to create such harm. Also, consent is required of marriage in general, and it is impossible in the case of bestiality, and should be subject to close scrutiny in the case of incest (due to undue psychological/familial pressures).

    What the court did was make a finding of fact that homosexuality is a natural state of persons, and that there was no other good reason for banning homosexual marriage. Both components were necessary, but as the blog post only criticized one, that’s where I focused my response.

  143. What the court did was make a finding of fact that homosexuality is a natural state of persons, and that there was no other good reason for banning homosexual marriage.

    No, Polk County said that a homosexual couple was differently situated than a heterosexual couple because a homosexual couple could not produce a child through natural means.

    The court rejected this claim and thereby declared that homosexual and heterosexual couples are similarly situated.

    Then the court declared that the state failed to show some legitimate government objective was achieved by treating similarly situated couples dis-similarly.

    Therefore, the ban on same-sex marriage was a violation of the equal protection clause.

  144. vertically challenged rotund person of sinful parentage:
    The court rejected this claim and thereby declared that homosexual and heterosexual couples are similarly situated.

    Similarly situated being code for …there was no other good reason for banning homosexual marriage.

    😉

  145. Bestiality and a desire to marry close relatives or more than one person are also a natural state for some people.

    It would be an extremely difficult task to show that a man and a dog is a similarly situated couple compared to either a heterosexual couple or a homosexual couple — so there is no slippery slope to allowing cross-species marriage.

    The language of the decision also seems to make it more difficult to show that a plural group is similarly situated to either a heterosexual couple or a homosexual couple — so it doesn’t appear to support any advances towards plural marriage either.

    However, it does not appear to prevent cousins or even siblings from pursuing the right to marry.

  146. Similarly situated being code for …there was no other good reason for banning homosexual marriage.

    I am not a lawyer, but it appears that “similarly situated” is a common phrase that has a significant legal interpretation.

    So when two adults, legally capable of forming consent, apply to marry; there should be no reason to differentiate between couples of same or mixed genders. Therefore “similarly situated”.

  147. “”It’s clear that the Iowa constitution’s equal protection clause, at the time it was adopted, was not understood to prohibit a law limiting marriage to a man and a woman (assuming the issue would even have been intelligible). So the basis for saying that such a law is inconsistent with that clause today has to be an evolving understanding of what equal protection entails”

    You should think about the difference between original expected applications and original meanings.

    Those who adopted these equal protections clauses certainly did not intend or foresee that a logical and principled application of the concept of equal protection of the laws would, in application, lead to allowing gay marriages, but they did want equal protection of the law should be the law of the land and if that is the law of the land allowing gay marriage logically follows (depsite the fact that those who first proposed the principle did not follow the logic of the provision out to that conclusion).

  148. vertically challenged rotund person of sinful parentage:

    We reject the notion that sex and bearing children outside of marriage is sinful 😉

  149. It seems to be the case that the enacters of the 14th Amendment for example certainly did not think that as applied it would logically entail striking down racial preference type legislation intended to help blacks. This was the same Congress pushing through Freedman’s Bureau legislation for Pete’s sake! However, they wrote “equal protection of the law”, and an equal protection would mean that things that they never would have thought would have been effected, affirmative action for example, are unconstitutional…

    What we should follow is the original meaning of the text not the original expected applications.

  150. You should think about the difference between original expected applications and original meanings.

    The ruling is based on “similarly situated”. There is no real need to read original or non-original meaning into the equal protection clause itself.

    The only operative question is whether or not a homosexual couple is similar under the law to a heterosexual couple. If you say yes, then the ruling is just connecting the dots to overturn the law.

    The proponents for banning same sex marriage mostly rely on arguments regarding biology (homosexuals can’t reproduce) or tradition (well just because we haven’t let homos marry before). Both arguments are easy to overturn.

  151. It seems to be the case that the enacters of the 14th Amendment for example certainly did not think that as applied it would logically entail striking down racial preference type legislation intended to help blacks.

    This was the Iowa Supreme Court ruling on the Iowa Constitution adopted in the 1800’s. The US 14th was not relevant to the decision.

  152. Iowa, as a state, sent many brave men to serve in the civil war. So Iowa’s equal protection clause predates the US 14th.

  153. Also note that the law that was overturned was passed in 1998. As is typical, it took a decade for the issue to grind through the courts to see if the legislation was constitutional or not. What the framers of Iowa’s constitution would have thought about this law in the 1840’s is not particularly relevant.

  154. “It’s clear that the Iowa constitution’s equal protection clause, at the time it was adopted, was not understood to prohibit a law limiting marriage to a man and a woman (assuming the issue would even have been intelligible). ”

    I expect that at the time the clause was written up, it was not understood to prohibit laws discriminating against hippy Transcendental Meditation practitioners (assuming the issue would even have been intelligible.)

    “Oh, sure, we have freedom of religion in America. But let’s not get carried away, those people are FREAKS, hopping around in lotus position trying to fly.”

  155. Jacob wrote: “So the basis for saying that such a law is inconsistent with that clause today has to be an evolving understanding of what equal protection entails, especially regarding what it means to be similarly situated”

    Isn’t the failure here on the part of the _legislature_, for not considering whether the proposed law was compatible with the principles and/or text of the state’s Constitution in the first place?

    It was the legislature that, implicitly, tried to restrict the meaning of ‘equal protection’ in the Constitution, and doing so was an overreach.

    So the court smacked them down, as they should.

    It’d be a bit different if the law was old, had been tested in the supreme court before, and affirmed, which precedent was only now overturned due to a shift in societal attitudes. But this was the first test of the law’s constitutionality at the state Supreme Court level.

    It was a *stupid* law, motivated entirely by a 1990s Republican fad driven by politics. And it was unconstitutional, so good riddance.

  156. However, it does not appear to prevent cousins or even siblings from pursuing the right to marry.

    No, cousins and siblings are too “similarly situated”. 😉

  157. Epi,

    Gay guys think they know what chicks are hot and they are utterly wrong much of the time.

    That describes one of my shopping buddies pretty well.

    He has even gone to the extent of hitting on straight guys with the lure that he knows a “chief of staff” that he could hook his prey up with. I asked him the description and it sounded familiar, It was from some rap song about “curvey” girls, or big butts. 36DD (sometimes larger) 24 36 and 5′ tall.

    He swears this works, but he never tries it in front of me. I call BS. Especially since he is clueless when guys are trying to talk to me and he thinks they are just trying to meet him.

    For some reason he is clueless when guys are trying to talk to him too. Maybe not clueless, but he does not to seem to be into guys who are as flamboyant as he.

    Not an explaination for all, but I am sure he is not the only one.

    On the topic at hand, I am beginning to lean to the get government out of marriage side of things. But not until after my beloved boyfiend asks me to marry him!

  158. beloved boyfiend

    Geez, Suki, tell us how you really feel.

  159. Geez, Suki, tell us how you really feel.

    Well, he is really tall, older than most of my friend’s sigo’s, has a really good job, a cool truck AND a cool car and he is so sweet to me!

    What else would you like to know?

  160. Why do the boys start writing “fuck” and variants so much when the thread topic has anything to do with homosexuality?

  161. I should’ve bolded the word “fiend” in “boyfiend”. The small typo was the basis of my whole lame attempt at humor.

    And also, thanks for confirming that women only like tall guys :p.

  162. “This was the Iowa Supreme Court ruling on the Iowa Constitution adopted in the 1800’s. The US 14th was not relevant to the decision.”

    Oh, I know that SFB, but it’s relevant, imo, by analogy. I was trying to make a general point about how to read language like that found in both Iowa’s and the U.S. provisions.

    “Gay guys think they know what chicks are hot and they are utterly wrong much of the time.”

    I’ve always thought this, and I even think it has a bit of a bad effect. A lot of people in the fashion world are gay, or so I hear, and they get to have a large say in what gets defined as “hot.” So we have women trying to live up to an ideal of hotness set by gay men, an ideal that men probably don’t even prefer. If you look at what is considered hot in porn (where straight men choose) vs. the fashion industry, you do see differences. I’ll not the former tend to be curvier and a bit more realistic imo.

  163. He has even gone to the extent of hitting on straight guys with the lure that he knows a “chief of staff” that he could hook his prey up with.

    Wait, what? He’s hitting on straight guys with a scam about a female “chief of staff” he can hook them up with? This is kind of like telling a girl there’s a hairdresser guy they can hook her up with. He might be more successful alluding to a model or stripper or cheerleader.

    Of course, he won’t be successful at all if they are actually straight, so he’s sort of wasting his time. But hey, he can try.

  164. Epi,

    Wait, what? He’s hitting on straight guys with a scam about a female “chief of staff” he can hook them up with? This is kind of like telling a girl there’s a hairdresser guy they can hook her up with. He might be more successful alluding to a model or stripper or cheerleader.

    Of course, he won’t be successful at all if they are actually straight, so he’s sort of wasting his time. But hey, he can try.

    Have you memorized our private conversations? lol

    He is one of those gay guys who is under the impression that everybody likes the same thing he does but they might not have tried it.

    No, telling him that I used to be into women, but I am not any more does not help. He still tries to scope chicks for me and he is clueless that they are never close to anything I was ever attracted to. They are sort of female versions of the guys he likes.

    But he is not bad at spotting the shoes I like! Maybe it is not hard to train a guy like him to spot a spike heel.

  165. Oh, a good one from another guy I know, who is really really nice, but really really flaming too. He discovered a hot guy (we both thought he was hot) was into NASCAR. So he tries to say that he likes NASCAR too.

    He stopped that silliness when his friend said “oh yea? who won the last race?”

  166. Maybe it is not hard to train a guy like him to spot a spike heel.

    I don’t think you want to rely on the opinion of a guy who has zero interest in how your legs look with that heel on. Just a suggestion.

  167. This was the same Congress pushing through Freedman’s Bureau legislation for Pete’s sake!

    The Freedmen’s Bureau was intended to assist former slaves.

    Its services would not be available to a black person immigrating from Haiti after 1865.

  168. I don’t think you want to rely on the opinion of a guy who has zero interest in how your legs look with that heel on. Just a suggestion.

    LOL, he is just a spotter, not a picker.

  169. but please, let’s let go of this absurd attachment to constitutions.

    Like the British? How is that lack of a constitution working out for them in the freedom-enhancing department?

  170. So we have women trying to live up to an ideal of hotness set by gay men, an ideal that men probably don’t even prefer.

    Fashion models aren’t meant to be sexually appealing so much as serve as human clothes hangers.

  171. My prediction is the majority party in Iowa — the Democrats — is going to lose some members over this, then cave and amend the constitution.

    They’re in the middle of the frickin’ Bible Belt. Hawaii, with 90% Democrats in the legislature — a state that went 3-1 for Obama in the general election — voted 70/30 in the 90’s to amend the state constitution to allow defining marriage as between as man and a woman. And this session they killed a civil unions bill.

    Dunno about whether the Iowa SCOTUS ruled incorrectly or not — never read the Iowa constitution — but I would be amazed if there isn’t some huge political fallout over this.

  172. The 16th amendment clearly allows for an income tax. Libertarians oppose the income tax. If the SCOTUS came out tomorrow declaring the income tax unconstitutional, how many tears would you shed for our dying constitution? “Oh noes, those pesky judicial activists!”

    I would be overjoyed about getting rid of the income tax, but really worried about having a SCOTUS with such a blatant disregard for the constitution they’re sworn to uphold.

    I don’t think even bad constitutional provisions should be overturned by judicial fiat. If you don’t respect the process for amending it, the good provisions will fall soon enough.

  173. Dear prolefeed, you are right and yet you are very wrong.

    Iowa is not bible belt. That term usually refers to the stretch of southern baptists that runs through the south eastern US.

    Iowa is a mix of catholics, methodists, lutherans, baptists, and many non-denominational christians. The vast majority of these people are centrists if not folks swinging towards the liberal end of the scale.

    There is a streak of hardcore fundamentalism in Iowa, but it is a small percentage of religious community. This group of people do dominate local and state republican politics due to the quirky nature of the caucus system where as small but dedicated group of people can have a large impact on the nominating process at all levels of government.

    The democratic party has control of both houses of the state legislature at this time. So this matter won’t even come to a vote before the 2010 elections. Assuming that the republicans take control of both houses in 2010 and pass a vote, there would be a corresponding backlash from the left. It is likely that the republican would lose control of one or both houses in the 2012 general election. This makes is nearly impossible for a second vote of the legislature to pass the amendment.

    Even if it does through two consecutive legislatures, it is not clear that a majority of the general population in the 2014 general election would ratify the amendment.

    There will be gay marriages occurring long before any ratification vote can be put before the general population. I can’t see a majority of mostly “polite” centrists in Iowa that really control the outcome of the general election voiding those marriages.

    Your mileage may vary.

  174. SFB,

    You are correct in saying that the Iowa right is not the Alabama right. What you seem to be ignoring is that the Iowa left is not the California left or the New York left.

    Evangelicals may be a minority in Iowa, but they hold a lot more sway in Iowa politics than gay marriage advocates do, that’s for sure.

  175. There will be gay marriages occurring long before any ratification vote can be put before the general population. I can’t see a majority of mostly “polite” centrists in Iowa that really control the outcome of the general election voiding those marriages.

    Oh, and Warty, this is the pro-gay-marriage tactic I was referring to as being the reason why gay marriage opponents feel the need to pre-emptively ban such “marriages” before the courts order them to be performed. “Oh noes, you’re breaking up VALID marriages now!”

  176. Crimethink,

    A lot of the time as a libertarian I have to stand by helplessly and watch the governmental history of this country run in the opposite direction to the one I would choose.

    It’s your turn on this one, babe. No matter what you do, no matter what you say, no matter how many temporary victories you may have, this one isn’t going your way. You’re going to lose, and there’s nothing you can do about it. And in thirty years you’ll have to hide what your opinion on this topic was, because it will be considered as alien and ridiculous as thinking black people shouldn’t vote, or women shouldn’t get jobs.

    Enjoy your long defeat.

  177. You are correct in saying that the Iowa right is not the Alabama right. What you seem to be ignoring is that the Iowa left is not the California left or the New York left.

    Our right isn’t as far right as the deep south and our left isn’t as far left as the People’s Republic of California. We are mostly shades of center.

    Evangelicals may be a minority in Iowa, but they hold a lot more sway in Iowa politics than gay marriage advocates do, that’s for sure.

    The evangelicals have been a nuance in some school board fights. And they definitely wield a heavy hand during the nomination process. But as far as I can tell they have had no real impact on public policy during the last 16 years that I have been here.

    Unless you live here, I don’t give a rat’s ass what you think the Iowa electorate is going to do.

  178. The evangelicals have been a nuance nuisance in some school board fights . . .

    Even with a spell checker I can’t get it right the first time.

  179. ‘And in thirty years you’ll have to hide what your opinion on this topic ]gay marriage] was, because it will be considered as alien and ridiculous as thinking black people shouldn’t vote . . .’

    Funny you should bring that up, since such ‘alien and ridiculous’ views have actually been expressed by recently gay libbers – quite recently, in fact.

    Consider this Hit and Run post by “Hayekian Dreamer” on March 6, about how to get rid of California’s Proposition 8 (the one adopting the 1 man + 1 woman definition of marriage):

    “Give it a few years and try to amend the [California] constitution again, ideally when a black candidate is not running for national office and attracting huge numbers of disproportionately anti-gay black voters to the polls.”

    That certainly seems to express a preference for black people not voting.

    Here are a couple of bon mots (out of many) about black voters who supported Prop 8, as expressed by outraged gay-libbers:

    ‘My friend in NC put it best: anyone who votes for Prop 8 is a nonperson. I should bloody well think that goes double for anyone who didn’t have the right to vote 80 years ago.’

    ‘So if we didn’t let them vote it would have failed. If they are comfortable voting down our rights, maybe we should call for a couple of votes on their rights…’

    So blacks are unpersons whose right should be subject to a vote by non-blacks.

    Presumably these are not mainstream sentiments among the gay-libbers, but the idea that ‘black people shouldn’t vote’ isn’t as marginal as you appear to believe.

  180. Those fuckin’ blacks are ungrateful bastards! Am I right, gay people? Huh? Solana? Kinath?

  181. Yes, statistically homophobia (and most of the sentiment that drives these amendments to define marriage as strictly a heterosexual institution is homophobia in my opinion)is more prevalent among African-Americans than, say, whites. There are many trends prevalent among African-Americans that are less so among whites. Some are negative, yes, but I understand why some people wouldn’t think this one was.
    Anyway, some gay people steeped their discontent with this trend in quasi-racist terms. Some gay people are black. Some gay people are racist.

    I don’t see what any of this really has to do with the validity of the concept of gay marriage or with what I think was a good decision by the Iowa Supreme court.

  182. Mad Max, a few inelegant quotes from misguided internet strangers do not make the sentiments you refer to non-marginal, particularly since your sample population consists of people who post on a blog visited mostly by those who live on the political and ideological fringe. Nice try, bad logic.

  183. So blacks are unpersons whose right should be subject to a vote by non-blacks.

    Actually, although I would not use the formulation “unperson”, I would certainly say that:

    1. My political and economic rights exist because they are moral truisms, and not because anyone voted for them;

    2. Any government which fails to recognize those rights is illegitimate, regardless of the form of that government or its governing mechanisms, and regardless of whether they include voting or not;

    3. I am morally entitled to use violence to destroy an illegitimate government, and all of its supporters, if they rise to defend it.

    So if lots of black people were to line up behind a government that denied me political and economic rights, #3 means that I could kill them for doing so, at my option. I don’t currently do this, but I morally could, if I chose to do so. This moral option exists for homosexuals too. Does this make those involved “unpersons”? I leave it to you to decide.

  184. APOG,

    Some gay people are racist.

    In reality LOTS of gay people are racist and lots more are incredibly bigoted.

    I never went for the “they do it to us so we should do it to them” attitude (they/them being whoever the person wants to cast unfair dispersions onto).

    I get all sorts of crap now for “leaving the community”, like I needed permission from the Grand Dyke of the Universe or something. Every Asian and Southern slur all of a sudden has become my middle name with some folks.

    Fine by me.

  185. “Some gay people” vs. “LOTS of gay people.” What conclusion are we supposed to draw from this anecdotal characterization? You can use the some/LOTS argument in nearly every quarter of life and for nearly every condition we experience.

  186. Equal protection is defined by the standards of each generation.

    This would mean that the applicability of equal protection to laws about same-sex “marriage” is defined by the standards of each generation.

  187. AL,

    I was not giving statistical statement, it was given in subjective terms. From a subject who has experienced just exactly what she (me) stated.

  188. From a year old Des Moines Register article:

    Q. What is the process for an amendment to the Iowa Constitution?

    A. Amendments need to be approved by simple majorities in both the House and Senate in two consecutive general assemblies, then must be approved by a simple majority of voters in the next general election. Each general assembly lasts for two years.

    While not directly stated in the answer above, it can be derived from the statement about two consecutive 2-year general assemblies: A general election of the state house and senate must take place between the first passing of the amendment and the second passing of the amendment by the state legislature.

  189. By way of The Volokh Conspiracy:

    . . . here are the relevant state constitutional provisions, from Article X of the constitution (some line breaks added):

    ? 1. Any amendment or amendments to this constitution may be proposed in either house of the general assembly; and if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment shall be entered on their journals, with the yeas and nays taken thereon, and referred to the legislature to be chosen at the next general election, and shall be published, as provided by law, for three months previous to the time of making such choice;
    and if, in the general assembly so next chosen as aforesaid, such proposed amendment or amendments shall be agreed to, by a majority of all the members elected to each house, then it shall be the duty of the general assembly to submit such proposed amendment or amendments to the people, in such manner, and at such time as the general assembly shall provide;
    and if the people shall approve and ratify such amendment or amendments, by a majority of the electors qualified to vote for members of the general assembly, voting thereon, such amendment or amendments shall become a part of the constitution of this state….

    In summary:

    A general assembly passes an amendment by simple majority in both the house and senate.

    A general election takes place.

    The new general assembly also passes the amendment by simple majority in both the house and senate.

    The people must ratify the amendment in the next general election.

    The minimum time required to pass an amendment is three years.

  190. “Oh, sure, we have freedom of religion in America. But let’s not get carried away, those people are FREAKS, hopping around in lotus position trying to fly.”

    LOL, don’t try telling somebody from Fairfield that they are just hopping, not levitating. They get pissed really pissed off.

  191. Damn,
    *They get really pissed off*

  192. You’re going to lose, and there’s nothing you can do about it. And in thirty years you’ll have to hide what your opinion on this topic was, because it will be considered as alien and ridiculous as thinking black people shouldn’t vote, or women shouldn’t get jobs.

    If we knew the score beforehand, we wouldn’t play the game, would we? 30 years ago ERA, busing, and gun ban supporters were dancing the same preliminary victory dance. Not to mention all the times when it was obvious that communism would supplant capitalism and we would be eating protein pills for dinner. We shall see, my friend, we shall see.

    I am morally entitled to use violence to destroy an illegitimate government, and all of its supporters, if they rise to defend it.

    Ah. So if Ron Paul became president and the income tax was ended, a non-interventionist foreign policy was implemented, drugs were legalized…but McCain-Feingold remained law, your position requires not only to believe that a person would be justified in trying to overthrow the govt, but in killing anyone who didn’t think the govt should be overthrown.

    What am I missing, Internet Tough Guy?

  193. Oh, and Kinnath, I’m going on what my Iowa relatives have told me. Of course you have the right not to believe it and say it’s wrong, but I’ll be happy to digitally spit on your face when you dare comment on something going on in my state. You’re welcome.

  194. I don’t see what any of this really has to do with the validity of the concept of gay marriage or with what I think was a good decision by the Iowa Supreme court.

    Congratulations, you’ve discovered the Ad Hominem Fallacy. Perhaps you could explain it to those on your side of the issues, such as Fluffy, who taunts me claiming that I’ll be hiding in the shadows in the future lest someone realize I opposed the Rainbow Tide back in the ’00s, and Andrew Lynch just below who argues that anyone against gay marriage is automatically a homophobe.

  195. Um, crimethink, I don’t think you understand what the ad hominem fallacy actually is.

    That fallacy involves presenting an argument in the form, “Crimethink is a bad person, therefore his argument must be false.”

    Nothing I said to you did that in the least. Mainly because I didn’t even attempt to address whether your argument was right or wrong – I merely predicted that your side in the debate would ultimately lose politically, and after that defeat and the passage of a period of time, people would eventually be embarrassed to admit that they belonged to that side. That prediction really has very little with do with analyzing whether your argument is right or wrong. I would think that the fact that I compared your situation to cases where I watch my own beliefs lose the political struggle would pretty much establish that.

    Maybe you should learn what terms mean before you employ them.

    Ah. So if Ron Paul became president and the income tax was ended, a non-interventionist foreign policy was implemented, drugs were legalized…but McCain-Feingold remained law, your position requires not only to believe that a person would be justified in trying to overthrow the govt, but in killing anyone who didn’t think the govt should be overthrown.

    What am I missing, Internet Tough Guy?

    First of all, I always specify when making these statements that I’m way, way too chicken to actually take these actions, so it’s not about me being an “internet tough guy”. But any theoretical discussion of the relationship between the power of the state and the rights of individuals begins and ends with revolution, as any American should know very well. I don’t really care if you think I’m tough or not.

    And the answer to your question is “yes”. Any person subject to illegitimate state action has the moral right to resist that action with violence. Since as a practical matter the state will meet any violent resistance with whatever escalation it can manage to bring to bear for as long as it continues to exist, to resist any single illegitimate state action one must be prepared to utterly destroy the state. But most people would employ a prudential analysis in addition to a moral analysis, and would say, “The state is treating me unjustly in this matter, but on balance the state’s not really that bad, and I would lose more by resisting than it’s worth.” So although there would be a lot of people morally entitled to resist the state with violence due to unjustified restrictions on free speech in your example, it’s virtually certain that none of them actually would. After all, the US did not have a legitimate government for most of its history [maybe all of its history?], but acts of revolution have been comparatively rare.

  196. If the SCOTUS came out tomorrow declaring the income tax unconstitutional, how many tears would you shed for our dying constitution? “Oh noes, those pesky judicial activists!”

    Has the Supreme Court ever ruled that any part of the constitution negates any other part? Such a ruling would be an abrogation of the duties of the court, and I would expect the President and Congress to appoint a new court in such a case.

  197. Oh, and Kinnath, I’m going on what my Iowa relatives have told me. Of course you have the right not to believe it and say it’s wrong, but I’ll be happy to digitally spit on your face when you dare comment on something going on in my state. You’re welcome.

    By Sunday morning, the local papers were already starting to hype the financial windfall that will come from both in-state and out-of-state couples getting married in Iowa.

    The Democratic Party controls both chambers in the Iowa legislature. They have already stated that there will be no vote on an amendment this year or next year. So the earliest that an amendment can be put to the general population is November 2014, more than five years from now. Gay marriage will be unpopular with a significant minority in Iowa, but it will be “normal” in 2014.

    It took more than 15 years to get the following amendment made to the Iowa constitution. It seems tame compared to any attempt to ban gay marriage.

    All men and women are by nature free and equal and have certain inalienable rights – among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness.

    You are free to criticize the behavior of Iowans to your hearts content. But don’t presume that you have any real insight into how the general population will vote based upon the input of a very small sample of that population.

  198. Fluffy,

    You didn’t answer my question about your main thrust, ie, that you have the right to commit acts of violence against not only the state itself, but also those “civilians” who defend the state. I assure you that if some nutjob were going around blowing up police stations to protest campaign finance reform, I would “defend the state” against him because while I don’t like CFR I don’t think it’s enough to overthrow the govt over. According to your argument, the nutjob has the moral right to kill me in that scenario.

    Oh, and if your moral philosophy identifies you as a complete wimp, you either need to grow a spine or reconsider your moral philosophy. I certainly don’t think you’re a wimp because you don’t rise up against the govt when you have no chance of winning, but then again I have a different moral philosophy.

  199. Haha. This thread is ridiculous.

    Gay people are racist! They don’t want black people to vote! Therefore… what? What if they didn’t? What if, by some weird genetic glitch, all gay people hated black people? Even the black ones. No… especially the black ones. This isn’t remotely true, of course, but let’s say it was a fact. Then what?

    Well… they’d still have a right to marriage. And black people would still have a right to vote.

    Some of you guys are seriously ridiculous. Closet conservatives, I think.

  200. Those fuckin’ blacks are ungrateful bastards! Am I right, gay people? Huh? Solana? Kinath?

    Ha! First of all, what? Then, who said I was gay? I just think Hugh Jackman is smoking.

  201. You didn’t answer my question about your main thrust, ie, that you have the right to commit acts of violence against not only the state itself, but also those “civilians” who defend the state. I assure you that if some nutjob were going around blowing up police stations to protest campaign finance reform, I would “defend the state” against him because while I don’t like CFR I don’t think it’s enough to overthrow the govt over. According to your argument, the nutjob has the moral right to kill me in that scenario.

    I think we would need to define “defending the state”, because the answer to your question would depend both on that definition, and on a host of other context-specific factors.

    For example, maybe we’d want to say that merely belonging to a political party that supports the state would not create enough moral culpability to justify action against you. That would sound reasonable, right? But I could think of contexts in which that would not be true – for example, belonging to the Chinese Communist Party during the Cultural Revolution.

    Oh, and if your moral philosophy identifies you as a complete wimp, you either need to grow a spine or reconsider your moral philosophy. I certainly don’t think you’re a wimp because you don’t rise up against the govt when you have no chance of winning, but then again I have a different moral philosophy.

    There is a difference between having the moral right to take some action, and the moral duty to take some action.

    I can possess the moral right to do something, but have reasons not to do it anyway.

    The question of the moral rightness of some action is entirely separate from whether or not I’m brave enough to do it.

  202. Fluffy, you said that homosexuals have the moral right to kill anyone who merely votes against their alleged right to marry:

    So if lots of black people were to line up behind a government that denied me political and economic rights, #3 means that I could kill them for doing so, at my option. I don’t currently do this, but I morally could, if I chose to do so. This moral option exists for homosexuals too. Does this make those involved “unpersons”? I leave it to you to decide.

    [emphasis mine]

    So your definition of defending the state would seem to include even mere voting behavior.

  203. I should add that if one forfeits their right to life by merely voting against gay marriage, clearly I would be forfeiting my right to life if I caught and detained the guy who’s throwing bombs into police stations to protest CFR.

  204. Folks might want to go and have a look at what the equal protection clause of the Iowa constitution actually says– it’s very different from the US. I’m ambivalent about gay marriage, but can’t stand judical activism, so I was irate about the Iowa decision at first, but the Iowa clause is a fricking inkblot. It basically says you have a right to be happy, so I suppose it could be interpreted to mean there is a right to gay marriage. It could also be interpreted to mean you have a right to strawberry sundays. Any state that puts that in their constitution deserves whatever it gets.

  205. This is great! This is not a matter of being liberal, Its a matter of freedom and liberty and justice for ALL! Not just for republicans, not just for democrats, for ALL! Its time to be the great country we were destin to be and stop fighting. Ring in the new age of freedom for all!

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