Tuesday, December 9th, 2008, the Iowa Supreme Court will hear oral
arguments in the case of Varnum vs. Brien. In August of 2007 Polk
County District Judge Robert Hanson ruled in that case in favor of
gay couples seeking to marry. He determined that the statute that
prevents them from marrying, Iowa 535.2, which states in part:
"Only a marriage between a male and female is valid."
violates the Iowa State Constitution.
Hanson then issued stay of execution of his order, but not before one
couple had legally obtained a marriage license and gotten married.
Continue on as I try to explain what might happen if the Supreme Court
upholds Hanson's decision, his logic contained in the ruling, and give
some interesting exerpts from the ruling itself.
If the Iowa Supreme Court upholds Polk's decision, then, possibly
depending on exactly how it is upheld, Iowa lawmakers would have to
decide whether to attempt to pass a constitutional amendment banning
same-sex marriage. If lawmakers do decide on an amendment, it would
take years: unlike California, proposed constitutional amendments have
to be approved twice by both houses of the Legislature during
consecutive years and only then put to voters for final ratification.
Judge Hanson's decision, all 63 pages of it, can be found here:
Polk's ruling, as best I, a non-lawyer, can interpret it, goes
something like this:
— The constitutionality of the statute (Iowa 595.2) that restricts
marriage solely to between a man and a woman must be analyzed using
strict scrutiny, because marriage is a fundamental right protected by
the Iowa Constitution. Any statute diminishing a fundamental right
must serve a compelling state interest. The statute does no such
thing, and therefore it is unconstitutional because it denies a
— And even if what is claimed above is not valid, the
constitutionality of the statute would then be analyzed under what is
known as intermediate scrutiny, because it discriminates on the basis
of gender. Any statute which discriminates on this basis must at
least serve an important (as opposed to compelling) state interest.
But Hanson concludes that the ban on same-sex marriage is not related
to any important state interest and is therefore unconstitutional
because of its discriminatory nature.
— And even if it should not be analyzed using intermediate
scrutiny, then the constitutionality of the statue can be still be
challenged using 'rational basis' (i.e., does it serves some kind of
legitimate and rational purpose?). Hanson concludes that even using
this kind of analysis the Defendent has failed to show that the law
makes any sense at all.
That's some pretty strong stuff!!
Below are some fairly extensive excerpts from the ruling, with
commentary, elaborating on my above summary.
Hanson first cites 120 'Undisputed Facts' related to the case.
Two of the most interesting are
On the effects of marriage or lack thereof
33. Plaintiffs and their families are harmed in numerous tangible and
intangible (including dignitary) respects by their exclusion fiom the
right to marry in Iowa.
On the concept of traditional marriage
99. American marriage law has vastly changed in its treatment of men
and women. When Iowa's first marriage law was passed, the
centuries-old doctrine of coverture, in which the woman's separate
legal identity disappeared into the man's upon marriage, reigned in
Iowa as elsewhere. Married women were essentially chattel; they were
not considered legal "persons" who could exercise rights, hold
property, earn money, or deny their husbands access to their bodies.
In other words, anyone who is claiming that they are defending or
upholding the definition or concept of traditional marriage is full
of, shall we say, animal excrement…
The Defendant's argument in support of the existing statute
Hanson then lays out the Defendant's case
by enumerating the Defendants reasons for claiming that the law serves
legitimate State purposes, to wit:
1) promoting procreation;
2) promoting child rearing by a father and a mother in a marriage
3) promoting stability in opposite-sex relationships where children
may be born;
4) conserving state and private resources; and
5) promoting the concept of fundamental marriage or the integrity of
Hanson'S Analysis Of The Statute's Constitutionality, in Three
First, as I note above, he claims the statute is invalid because of
Due Process and Strict Scrutiny
The Plaintiffs argue that Iowa Code $595.2(1) violates their
fundamental right to marry under the Due Process Clause of the Iowa
"… [N]o person shall be deprived of life, liberty, or property
without due process of law."
Both the Iowa Supreme Court and the United States Supreme Court have
recognized that the right to marry is a fundamental right.
Though not all laws that affect marriage are subject to strict
scrutiny review, state law that "significantly interferes" with the
right to marry is subject to strict scrutiny review.
The Defendant has cited no evidence that precluding gay and lesbian
individuals fiom marrying other gay and lesbian individuals will
promote procreation, will encourage child rearing by mothers and
fathers, will promote stability for opposite sex marriages, will
conserve resources or will promote heterosexual marriage.
Iowa Code §595.2(1) manages to be both over and under-inclusive while
effectuating none of its purported rationales. The law is extremely
overinclusive in its attempt to strengthen heterosexual marriage and
procreation by preventing an entirely distinct group of individuals –
homosexuals – from marrying.
The law is also extremely underinclusive by failing to regulate at all
how heterosexuals enter into marriage and procreative relationships,
despite the narrow focus of the legislation's goals on that group of
The Defendant fails to sustain his burden of proof that §595.2(1) is
narrowly tailored to effectuate the achievement of a compelling state
interest. Consequently, this Court concludes that §595.2(1) violates
Plaintiffs' Due Process rights guaranteed by Article I, $9 of the Iowa
Next, he analyzes the Plaintiffs claims under the Iowa Equal
Protection Clause, and concludes that no important state interest is
served by denying Equal Protection:
Equal Protection and Intermediate Scrutiny
The Plaintiffs also argue that Iowa Code $595.2 violates their Equal
Protection rights under the Iowa Constitution by prohibiting an
individual from marrying another individual of the same sex:
"All laws of a general nature shall have a uniform operation; the
General Assembly shall not grant to any citizen, or class of citizens,
privileges or immunities, which, upon the same terms shall not equally
belong to all citizens."
The Equal Protection Clause "is essentially a direction that all
persons similarly situated should be treated alike."
A statute which classifies individuals based upon their sex or gender
"is subject to intermediate scrutiny and will only be upheld if it is
substantially related to an important state interest."
This Court concludes that the sex-based classification promulgated
by Iowa Code $595.2(1) is not substantially related to an important
state interest. First, the Defendant has not sustained his burden
of proof that any of the five rationales articulated above are
important state interests…
And then, Hanson moves on to 'rational basis' and one by one he
analyzes each 'legitimate purpose' (listed above) the Defendant claims
the statute might serve, discrediting each in turn and concluding
A statute is unconstitutional if legislative goals are achieved in a
manner which is wholly arbitrary or which amounts to invidious
and since the statute does not, in his opinion, serve any of the stated purposes or does so in an arbitrary or indvidious way
that Iowa Code $595.2 violates the Due Process and Equal
Protection provisions in that it is not rationally related to a
legitimate government interest.
Finally, we reach his ultimate conclusion:
Hanson's Overall Conclusion
Because $595.2(1) violates Plaintiffs' due process and equal
protection rights for the aforementioned reasons including, but not
limited to, the absence of a rational relationship to the
achievement of any legitimate governmental interest, the Court
concludes it is unconstitutional and invalid.
Will the Iowa Supreme Court uphold Hanson's ruling, and if so, on
what basis, and if not, on what basis?
If they invalidate, will they claim the the statute does not restrict
a fundamental right, and that it does not constitute gender
discrimination, and that it in fact does serve some legitimate
purpose, despite Hanson's argument that it does not?
If they uphold, will it be on the basis of Due Process, or Equal
Protection, or simply that the law as written is not serving and
legitimate purpose? If the latter, could the law be rewritten by the
Iowa Legislature to satisfy the courts, and thereby avoid having to
pass a Constitutional Amendment? And if that were to happen, what
would be the fate of all the same-sex couples who got married in the
All we know now is that the answer may come as late as a year after
the arguments are heard tomorrow.