“The Iowa Supreme Court this morning unanimously upheld gays’ right to marry.“
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Tags: gay marriage
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About darn time.
Go Iowa!
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The Court opinion is really superficial.
It referred to sexual attraction, romantic attraction, love, and intimacy, but none of these are legal requirements in the marriage statute. So these mentins are superfluous.
The opinion said this of the societal interest in procreation:
“[T]he statute is significantly under-inclusive with respect to the objective of increasing procreation because it [i.e. this objective] does not include a variety of groups that do not procreate for reasons such as age, physical disability, or choice.”
But these are not reasons for eligibility. One is not made eligible based on disability nor based on old age. One is not made eligible to marry based on a professed desire not to procreate.
Meanwhile, the Court opinion proposed that homosexual orientation is the very thing that should make same-sex arrangements eligible for marriage.
Homosexuality, the Court opined, is resistant to change but that would make the analogue with age very inapt.
Is homosexuality a physical disability? The SSMers and the Iowa Court resisted such a claim. Is it a choice? Again, resistance to such a claim.
All three attempted analogies are fatally flawed.
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There is no legal requirement that each marriage procreate. Yet all who enter marriage must consent to all that marriage entails, including the marital presumption of paternity. That applies regardless of age, disability, and choice. Indeed, consent to this presumption is a legal requirement that cannot apply to any sort of one-sexed arrangement — regardless of sexual orientation.
The Court opinion objected to the centrality of procreation, however, by invoking a special rule of the pro-SSM side: If (fill-in the blank) is not compelled by a legal requirement, then, that is not essential to the social institution of marriage.
See the second paragraph in my comment.
The Court opinion is left with no basis to draw lines around the core of marriage. But the Court proposed to redraw the lines anyway, on the basis of gay identity politics.
It mentioned sexual orientation 94 times, gay 86 times, and lesbian 75 times.
It mentioned sexual intercourse 2 times, intimacy 1 time, and love 1 time.
That shows where the emphasis is for that particular Court’s view of marriage. The emphasis was not on marriage, not on the pro-SSM definition of marriage, but on identity politics and little else.
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It’s worth noting that part of this imbalance of terms in the court’s decision seems to have been the result of claims made by both sides, but including the state. (For example, as it seems to my non-law-school-trained self, the bits about procreation were in direct response to the *state*’s claims about marriage requiring the possibility of procreation.
So i don’t think you can read anything into the court’s focus unless you account for the focus of the actual case brought before them. Remember also that it was an appeal, and therefore already rather narrowed in its focus.
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David B said: “the bits about procreation were in direct response to the *state*’s claims about marriage requiring the possibility of procreation.”
Actually, those bits were not directly responsive to the defense’s argument.
The trial court had acknowledged that the defense had referred to responsible procreation which integrates fatherhood and motherhood.
But the judge then misrepresented “responsible procreation” and did so openly and deliberately. That was his construction of a strawman.
The Supreme Court misrepresented the defense by reframing responsible procreation as a concern about “increasing procreation”. Another strawman.
Meanwhile both of the judicial opinions emphasized the sexualized aspect as decisive.
Okay, procreation is not mandatory but consent to the contingency for responsible procreation — i.e. the marital presumption of paternity — is essential when entering the public sexual relationship that is marital. This presumption makes the conjugal relationship a sexual relationship, at law.
Okay, sexual attraction, sexual behavior, and sexual identity are not legal requirements. Consent to a license is not consent to a mandatory performance or showing of these things. The lack of a requirement that compels absolute compliance (see the strawman argument on procreation which appears in both of the judicial opinions) means that the sexualized aspect is NOT decisive, at law.
No sexual aspect. Yet the Supreme Court emphasized homosexual orientation and conflated sex classification with sexual orientation classification.
Neither the trial court nor the Supreme Court established that the marriage statute required the sexual aspect. That directly contradicts the argument made against the centrality of procreation — as per the (strawman) argument that appeared in each of the court opinions.
The trial court depended on classification by sex and rejected classification by sexual orientation.
The Supreme Court rejected sex classification and depended on classification by sexual orientation.
Each opinion distinguished its favored classification by emphasizing gay identity politics.
The only way to avoid that emphasis would have been to acknowledge what the marriage law actually said and to acknowledge the limitations on the judiciary — as interpreter of the law and the state constitution — but the courts chose to abuse judicial review rather than to serve their role without bias.
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Chairm, have you read the full opinion?
It is interesting that the Iowa Supreme Court addresses some of the issues that have been discussed at length in a prior thread on this website.
1. History of discrimination against gays and lesbians. The court indicated that county [the defendant in the case] could not, in good faith, dispute, the historical reality that gay and lesbian people as a group have long been the victim of purposeful and invidious discrimination because of their sexual orientation.
2. Sexual orientation and the ability to contribute to society. The court stated that a classification unrelated to a person’s ability to perform or contribute to society typically reflects prejudice and antipathy—a view that those in the burdened class are not as worthy or deserving as others or reflects outmoded notions of the relative capabilities of persons with the characteristic. The court indicated that it is clear that sexual orientation is not viewed in Iowa as an impediment to the ability of a person to contribute to society.
3. Immutability of sexual orientation. The court indicated that because sexual orientation is central to personal identity and may be altered–if at all–only at the expense of significant damage to the
individual’s sense of self, classifications based on sexual orientation are
no less entitled to consideration as a suspect or quasi-suspect class than
any other group that has been deemed to exhibit an immutable
characteristic.4. Political powerlessness of lesbian and gay people. The court indicated that it was convinced gay and lesbian people are not so politically powerful as to overcome the unfair and severe prejudice that history suggests produces discrimination based on sexual orientation.
5. Classifications based on sexual orientation demand closer scrutiny. The Iowa Supreme Court indicated that it agreed with statements of the Connecticut Supreme Court which included the following: “Gay persons have been subjected to and stigmatized by a long
history of purposeful and invidious discrimination that continues to manifest itself in society. The characteristic that defines the members of this group—attraction to persons of the same sex—bears no logical relationship to their ability to perform in society, either in familial relations or otherwise as productive citizens. Because sexual orientation is such an
essential component of personhood, even if there is some possibility that a person’s sexual preference can be altered, it would be wholly unacceptable for the state to require anyone to do so. Gay persons also represent a distinct minority of the population. It is true, of course, that gay persons recently have made significant advances in obtaining equal treatment under the law. Nonetheless, we conclude that, as a minority group that continues to suffer the enduring effects of centuries of legally
sanctioned discrimination, laws singling them out for disparate treatment are subject to heightened judicial scrutiny to ensure that those laws are not the product of such of such historical prejudice and stereotyping.”There were, of course, a number of other points in the unanimous opinion, which was a total of 69 pages long.
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Did you read my previous two comments, Jeff?
What did the Court mean by “intimacy”?
The opinion is not explicit on this apparently decisive point, even as it supposedly made explicit what was supposedly implicit.
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Regarding your items ` to 5 –
1. That is irrelevant to the constitutionality of the man-woman criterion of marriage.
2. Irrelevant.
3. Irrelevant.
4. Irrelevant.
5. Irrelevant.
Overall the Court emphasized irrelevancies.
Now, if you could answer the question at the top of this comment, you might reveal how your points 1 to 5 can become relevant without the emphasis on sexual orientation classification.
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I see you are counting the number of pages just as previously you counted the number of comments in a discussion. Also irrelevant.
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Chairm:
I made reference to the number of pages in the opinion because your posting on April 5 stated: “The Court opinion is really superficial.”
The court’s decision was NOT superficial as they provided a very extensive analysis of the issues in its long and detailed opinion. Those interested in reviewing the entire decision can view it at: http://www.judicial.state.ia.us/Supreme_Court/Recent_Opinions/20090403/07-1499.pdf
As to whether I read your comments, I did–and saw that you were making the same arguments you raised on this website, as well as the other websites that you post on regularly.
Finally, for those who followed our long exchange of comments on this website (the comments start at http://www.asoftanswer.com/2009/02/10/why-stick-to-the-issues-when-you-can-stick-it-to-your-opponents/comment-page-1/#comments ), I note that–once again–you refuse to address the issue of historic discrimination against gays and lesbians, claiming that the issue is irrevelant. The issue of historic discrimination is entirely relevant when the courts and/or the legislature are determining if a particular group should receive judicial or legislative protection.
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The count of pages is a superficial observation.
I did address historic discrimination.
I’ll ask you again. Three gay men want a license to marry. They cannot. You can’t claim that is due to their gayness. Polygamy is outlawed and has been prosecuted in various ways for much of this country’s history. The discrimination is specific to marriage. So, are you against the explicit ban on polygamy?
When you were asked for a good reason for the line drawn against multi-marriage, you pointed to procreation and to sex equality. None of that applies to three men. But it is central to the core meaning of marriage. None of it applies to two men.
I support the line that discriminates against three men, gay or not. I support the line that discriminates between marriage and nonmarriage such as that which is drawn around the core of marriage: sex integration combined with responsible procreation.
You do not. You support selective sex-segregation and you oppose societal preference (through the marriage law) for the unity of fatherhood and motherhood.
The Iowa Court opinon emphasized gayness, as you do. But how did it reach for this classification based on gayness?
Can you answer or are you going to dodge some more?
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Jeff declared: “The issue of historic discrimination is entirely relevant when the courts and/or the legislature are determining if a particular group should receive judicial or legislative protection.”
Prove the relevance.
The man-woman criterion of marriage is not a classification based on sexual orientation.
Read the Court opinion. You will discover that the leap to such a claim is based on “intimacy”.
There is no intimacy requirement. But maybe you can cite such a requirement specific to Iowa’s marriage laws and maybe you can thus define “intimacy” such that it merits special consideration in interpreting the state constitution.
The Court interpreted the marriage statute as a “ban” on something that is outside of marriage. Yet that something does occur outside of marriage and so there is no ban.
But to be clear, perhaps you can explain what the Court meant by a “ban”. Be specific.
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Vermont Legalizes Gay Marriage
By THE ASSOCIATED PRESS (April 7, 2009)
MONTPELIER, Vt. (AP) — Vermont has become the fourth state to legalize gay marriage — and the first to do so with a legislature’s vote.
The Legislature voted Tuesday to override Gov. Jim Douglas’ veto of a bill allowing gays and lesbians to marry. The vote was 23-5 to override in the state Senate and 100-49 to override in the House. Under Vermont law, two-thirds of each chamber had to vote for override.
The vote came nine years after Vermont adopted its first-in-the-nation civil unions law.
It’s now the fourth state to permit same-sex marriage. Massachusetts, Connecticut and Iowa are the others. Their approval of gay marriage came from the courts.
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The legislation is for a localized merger of nonmarriage with marriage.
This was prompted first by the judiciary’s order to the legislature to enact such a merger under the rubric of “civil union”.
The Vermont legislature has just discredited the notion of a “civil union” compromise.
It also has discredited the notion that state marraige amendments are unnecessary to prevent such a merger.
It also demonstrates that those pro-marriage Senators and House Representatives who did not vote in favor of a federal marriage amendment were mistaken to believe that clear marriage statutes (state versions of DOMA) and local marriage amendments were sufficient to restrain the judiciary.
The poor reasoning of the pro-SSM forces is as weak in the Vermont legislature as it was in that state’s judicial system. Its force, such as it is, rests entirely in the corruptive influence of identity politics and not in sound social policy and sound jurisprudence.
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But Jeff, are you dodging yet again by bringing this up here?
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Um, Chairm? Jeff? After three back-and-forths, it’s stale.
Just sayin’.
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The Iowa Court’s opinion provided no valid connection established between Jeff’s 5 items and the marriage statute — much less the state constitution.
But those items made an appearance anyway.
That Jeff refuses to engage the substantive problem this presents, well, yeh, it does quickly get stale going back and forth.
I’ll leave off, David.
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Sorry for neglecting this space but life has been extremely intrusive this week.
Just for the record, the observation that the back and forth was getting stale was from David B and not me (the guy who blogs here). David B obviously didn’t follow your last exchange and has no idea what you guys are really capable of.
I admit I can’t keep up and don’t appreciate the periodic accusations of bad faith but I’m happy to host any discussions here as long as you guys feel like it.
Most interesting to me from what I heard of the Iowa decision is this claim:
“[E]qual protection can only be defined by the standards of each generation.â€
That strikes me as pretty brazen. So “Equal Protection” only means whatever we feel like it. Whatever it means today, it can be different from yesterday and we have no idea what tomorrow will bring. In other words, its nothing more than an empty vessel to justify what we feel like doing today.
Iowa just passed its DOMA legislation in 1998. Are its definition of marriage and other “standards” already due for redefinition by a new generation?
Vermont’s legislation is at least more palatable procedurally although it sounds like the veto override was enabled by a very spiteful legislator who actually opposed same-sex marriage.
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