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.