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Saturday, April 4, 2009

Day After Iowa Overturns Same-Sex Marriage Ban, My Wife and I Still Wearing Rings

Kudos to the Iowa Supreme Court, for recognizing the rights of all citizens to get married and raise a family. (Funny: I hear same-sex marriage will cause incalculable damage to children and families... but my wife and I slept—together—just fine last night. Madville Times Jr. also looks like her normal happy and healthy self this morning.)

The court's unanimous ruling is great reading. Here are some highlights all South Dakotans—who vandalized their Constitution with a same-sex marriage ban in 2006—should read:

On the homosexual plaintiffs... also known as neighbors and fellow citizens:

This lawsuit is a civil rights action by twelve individuals who reside in six communities across Iowa. Like most Iowans, they are responsible, caring, and productive individuals. They maintain important jobs, or are retired, and are contributing, benevolent members of their communities. They include a nurse, business manager, insurance analyst, bank agent, stay-at-home parent, church organist and piano teacher, museum director, federal employee, social worker, teacher, and two retired teachers. Like many Iowans, some have children and others hope to have children. Some are foster parents. Like all Iowans, they prize their liberties and live within the borders of this state with the expectation that their rights will be maintained and protected—a belief embraced by our state motto ["Our liberties we prize and our rights we will maintain"].

Despite the commonality shared with other Iowans, the twelve plaintiffs are different from most in one way. They are sexually and romantically attracted to members of their own sex. The twelve plaintiffs comprise six same-sex couples who live in committed relationships. Each maintains a hope of getting married one day, an aspiration shared by many throughout Iowa [p. 7].

What do same-sex couples want?

They seek to declare the marriage statute unconstitutional so they can obtain the array of benefits of marriage enjoyed by heterosexual couples, protect themselves and their children, and demonstrate to one another and to society their mutual commitment [p. 9].

Can't those darn homosexuals just keep their relationships private and not bother the state for a marriage license?

This [district court] record included an explanation by some of the plaintiffs of the disadvantages and fears they face each day due to the inability to obtain a civil marriage in Iowa. These disadvantages and problems include the legal inability to make many life and death decisions affecting their partner, including decisions related to health care, burial arrangements, autopsy, and disposition of remains following death. Various plaintiffs told of the inability to share in their partners’ state-provided health insurance, public employee pension benefits, and many private-employer-provided benefits and protections. They also explained how several tax benefits are denied. Adoption proceedings are also more cumbersome and expensive for unmarried partners. Other obstacles presented by the inability to enter into a civil marriage include numerous nongovernmental benefits of marriage that are so common in daily life they often go unnoticed, such as something so simple as spousal health club memberships. Yet, perhaps the ultimate disadvantage expressed in the testimony of the plaintiffs is the inability to obtain for themselves and for their children the personal and public affirmation that accompanies marriage [p. 9].

And what interests could the state, through Polk County, muster to justify such disadvantages?
  • promoting procreation
  • promoting child-rearing by a mother and father
  • promoting stability in an opposite-sex relationship
  • conserving state resources
  • promoting the concept and integrity of the traditional notion of marriage [p. 10]
Polk County also argued that denying same-sex couples marriage licenses doesn't violate equal protection because homosexuals cannot "procreate naturally" [p. 26]. I assume Polk County also denied marriage licenses to impotent men, barren women, and users of in vitro fertilization.

The Court declares bogus the arguments for a state interest in banning same-sex marriage:

Maintaining traditional marriage:

...A specific tradition sought to be maintained cannot be an important governmental objective for equal protection purposes, however, when the tradition is nothing more than the historical classification currently expressed in the statute being challenged. When a certain tradition is used as both the governmental objective and the classification to further that objective, the equal protection analysis is transformed into the circular question of whether the classification accomplishes the governmental objective, which objective is to maintain the classification. In other words, the equal protection clause is converted into a “ ‘barren form of words’ ” when “ ‘discrimination . . . is made an end in itself’ ” [p. 53].

Promotion of optimal environment to raise children:

...The civil marriage statute is under-inclusive because it does not exclude from marriage other groups of parents—such as child abusers, sexual predators, parents neglecting to provide child support, and violent felons—that are undeniably less than optimal parents [p. 56]....

...The ban on same-sex marriage is substantially over-inclusive because not all same-sex couples choose to raise children. Yet, the marriage statute denies civil marriage to all gay and lesbian people in order to discourage the limited number of same-sex couples who desire to raise children [p. 57]...

...Quite obviously, the statute does not prohibit same-sex couples from raising children. Same-sex couples currently raise children in Iowa, even while being excluded from civil marriage, and such couples will undoubtedly continue to do so. Recognition of this under-inclusion puts in perspective just how minimally the same-sex marriage ban actually advances the purported legislative goal [p. 57].

Promotion of procreation:

...[T]he sole conceivable avenue by which exclusion of gay and lesbian people from civil marriage could promote more procreation is if the unavailability of civil marriage for same-sex partners caused homosexual individuals to “become” heterosexual in order to procreate within the present traditional institution of civil marriage. The briefs, the record, our research, and common sense do not suggest such an outcome [p.59].

Promoting stability in opposite-sex relationships:

We must evaluate whether excluding gay and lesbian people from civil marriage encourages stability in opposite-sex relationships. The County offers no reasons that it does, and we can find none [p. 61].

Conservation of resources:

Excluding any group from civil marriage—African-Americans, illegitimates, aliens, even red-haired individuals—would conserve state resources in an equally “rational” way. Yet, such classifications so obviously offend our society’s collective sense of equality that courts have not hesitated to provide added protections against such inequalities [p. 61].... Indeed, under the County’s logic, more state resources would be conserved by excluding groups more numerous than Iowa’s estimated 5800 same-sex couples (for example, persons marrying for a second or subsequent time) [p. 62].

The Court even takes a couple pages to discuss an issue the County was smart enough not to mention—religious opposition to same-sex marriage (this is really important; bold emphases are mine):

Whether expressly or impliedly, much of society rejects same-sex marriage due to sincere, deeply ingrained—even fundamental—religious belief.

Yet, such views are not the only religious views of marriage. As demonstrated by amicus groups, other equally sincere groups and people in Iowa and around the nation have strong religious views that yield the opposite conclusion.

This contrast of opinions in our society largely explains the absence of any religion-based rationale to test the constitutionality of Iowa’s same-sex marriage ban. Our constitution does not permit any branch of government to resolve these types of religious debates and entrusts to courts the task of ensuring government avoids them.... The statute at issue in this case does not prescribe a definition of marriage for religious institutions. Instead, the statute declares, “Marriage is a civil contract” and then regulates that civil contract.... Thus, in pursuing our task in this case, we proceed as civil judges, far removed from the theological debate of religious clerics, and focus only on the concept of civil marriage and the state licensing system that identifies a limited class of persons entitled to secular rights and benefits associated with civil marriage [pp. 64–65].

...As a result, civil marriage must be judged under our constitutional standards of equal protection and not under religious doctrines or the religious views of individuals. This approach does not disrespect or denigrate the religious views of many Iowans who may strongly believe in marriage as a dual-gender union, but considers, as we must, only the constitutional rights of all people, as expressed by the promise of equal protection for all. We are not permitted to do less and would damage our constitution immeasurably by trying to do more.

In the final analysis, we give respect to the views of all Iowans on the issue of same-sex marriage—religious or otherwise—by giving respect to our constitutional principles. These principles require that the state recognize both opposite-sex and same-sex civil marriage. [p. 66].

You're going to hear arguments (some might say pernicious lies) to the contrary, but the Iowa Supreme Court is making clear that they are defending religious liberty. And to that, religionists of all stripes should say Hallelujah and Amen.

By the way, anyone thinking the Iowa Supreme Court would uphold unequal protection under the law should have considered the Court's history:

In the first reported case of the Supreme Court of the Territory of Iowa... we refused to treat a human being as property to enforce a contract for slavery and held our laws must extend equal protection to persons of all races and conditions. This decision was seventeen years before the United States Supreme Court infamously decided Dred Scott v. Sandford, which upheld the rights of a slave owner to treat a person as property. Similarly...[in 1868 and 1873] we struck blows to the concept of segregation long before the United States Supreme Court’s decision in Brown v. Board of Education. Iowa was also the first state in the nation to admit a woman to the practice of law, doing so in 1869. Her admission occurred three years before the United States Supreme Court affirmed the State of Illinois’ decision to deny women admission to the practice of law..., and twenty-five years before the United States Supreme Court affirmed the refusal of the Commonwealth of Virginia to admit women into the practice of law.... In each of those instances, our state approached a fork in the road toward fulfillment of our constitution’s ideals and reaffirmed the “absolute equality of all” persons before the law as “the very foundation principle of our government” [pp. 17–18].


  1. The traditional view of marriage is one man, one woman, and all the liberal jabbering aside, that is still the definition of a marriage.

    If homosexuals want a civil union, I have no problem. This should give them all the rights they claim they don't have. But they insist on making an issue of actual marriage, which two people of the same sex do not constitute.

    Don't bother debating me back. You won't change my mind. And that does not make me homophobic either before you try to hang that on me. I simply believe in the traditional view of marriage.

  2. Anon@2:19. Is your definition of marriage because that's what you say it is? It's not important that you change your mind. You can live in whatever self-imposed Taliban-like existence that you choose. But what you cannot do is impose your Taliban-like existence on your neighbors or the rest of us.

  3. Yeah, bring out the Taliban comparison. Rally intelligent. Is your name really T. Johnson?

  4. Anon@3:20, I'm just saying that if the burka of your mind fits . . .

    And that you obviously do not believe in or support the constitution . . . equal protection under the law, et.al.

  5. According to the bible, marriage is between a man and a woman.

    According to the US Constitution, there is a SEPERATION BETWEEN CHURCH AND STATE.

    How is it of any concern to me that two homosexuals can be married or not?

    As a christian and a human being, I love everyone in the world and wish them the best.

    As an American, I respect their right to life, liberty and the pursuit of happiness.

    I commend the Iowa court for applying good commen sense in their ruling. By taking the emotion out of this argument and focusing on the consitutional facts, they made a good ruling.

  6. I agree with 2:19 with this twist: All unions should be civil unions (wasn't that Cory's argument and also Iowa's view except for the continued use of the word marriage). Simply let the marriage portion be defined by a couple's faith. If the Lutheran Church calls marriage only between man and wife, so be it. Each person searches out their own church. The SD marriage ban is homophobic and we are a backwards thinking state in so many ways. That eagle should go to Iowa where it is more appreciated.

  7. Anon 2:19: That's *a* definition of what a marriage is. That's by no means the only valid definition, and I'm thrilled that each and every member of the Iowa Supreme Court understands that.

    You'll notice in the language of the ruling that they talk about the "traditional" marriage argument, and essentially said that there's got to be a point in maintaining "tradition" (read: excluding some people from getting married), other than for the sake of maintaining said "tradition."

    If we applied your "tradition" logic to other social movements, Barack Obama wouldn't be president (let alone be able to drink from the water fountain of his choice), and I wouldn't be able to vote.

    I hope you see where your "logic" falls apart.

  8. Sorry, I don't. There is a huge difference between the traditional view of marriage and racial discrimination.

    Marriage as between a man and woman is the traditional view of marriage of all the world's major religions and always has been.

    All the states that put a "marriage is between a man and woman" on the ballot have passed it when put to a vote of the people, 38 in total I believe. And BTW, Obama has said that he agrees too, which should be the final authority for many of the lib posters here!

    I stand by my view that the standard view of marriage for the last 5,000 or more years is the standard I will go by.

    If gays want civil unions, that's fine. That should grant them all the same rights as a marriage.

  9. I'm not saying that racial injustice is the exact same as injustice against gay and lesbian Americans. I'm simply saying that this "tradition for the sake of tradition" argument fell apart when women were trying to get suffrage, when people of color were fighting segregation, and it falls apart in this instance as well.

    Your blanket comment about all the world's major religions doesn't hold water, either. I'll again cite the language from the Iowa ruling, as it's a bit more eloquent than I can muster at the moment, but it essentially says that a great number of people *support* marriage equality on religious grounds, just as earnestly as those who oppose it. Are you implying that some people's religious views are more valid than others?

    With your Obama mention, it seems to me that you're more interested in regurgitating talking points than having a real discussion. I think Obama is doing a great job, but the President and I do disagree on the issue of full marriage equality, and I think it's not helpful to a discussion to assume someone's position, or to put words in their mouths.

    Finally, I think you're pretty misguided in thinking that gay and lesbian couples need to call their unions something different from what straight couples call their unions. As long as the government gives a "marriage license" to straight couples, there is no reason why they can't give the exact same thing to gay couples. I'm not talking about a religious ceremony, I'm talking about the state treating everyone the same.

  10. "I stand by my view that the standard view of marriage for the last 5,000 or more years is the standard I will go by."

    That's fine. The Iowa Supreme Court is defending your right to do so. They're just saying you can't ask the government to establish that essentially religious definition above other religious definitions for you.

  11. A gay, homosexual, married 62 year old man played a marvelous solo concert this Wednesday in Rapid City. On Thursday morning, life as we know it, continued.

  12. ROFLOL @ Anon who thinks our current view of marriage is "traditional".

    Taken from the wiki on "marriage":

    "For most of European history, marriage was more or less a business agreement between two families who arranged the marriages of their children. Romantic love, and even simple affection, were not considered essential.[10] Historically, the perceived necessity of marriage has been stressed.[11]

    In Ancient Greece, no specific civil ceremony was required for the creation of a marriage - only mutual agreement and the fact that the couple must regard each other as husband and wife accordingly.[12] Men usually married when they were in their 20s or 30s [13] and expected their wives to be in their early teens. It has been suggested that these ages made sense for the Greek because men were generally done with military service by age 30, and marrying a young girl ensured her virginity.[14] Married Greek women had few rights in ancient Greek society and were expected to take care of the house and children.[15] Time was an important factor in Greek marriage. For example there were superstitions that being married during a full moon was good luck and, according to Robert Flacelière, Greeks married in the winter.[14]

    Like with the Greeks, Roman marriage and divorce required no specific government or religious approval.[11] Both marriage and divorce could happen by simple mutual agreement.[11] There were several types of marriages in Roman society. The traditional ("conventional") form called conventio in manum required a ceremony with witnesses and was also dissolved with a ceremony.[11] In this type of marriage, a woman lost her family rights of inheritance of her old family and gained them with her new one. She now was subject to the authority of her husband.[16] There was the free marriage known as sine manu. In this arrangement, the wife remained a member of her original family; she stayed under the authority of her father, kept her family rights of inheritance with her old family and did not gain any with the new family.[16] A law in the Theodosian Code (C. Th. 9.7.3) issued in 342 CE prohibited same-sex marriage, but the exact intent of the law and its relation to social practice is unclear, as only a few examples of same-sex marriage in ancient Rome exist.[17]"

    Totally makes sense to me! Let's follow the historical view of marriage rather than viewing marriage as an institution that has changed throughout the ages to meet the needs of the times...

  13. At least all those cases of legal marriage you cited, Tony, involved one man and one woman, right??

  14. Christine Nelson4/05/2009 12:33 PM

    So since marriage isn't about gender or the ability to make babies, but love and all the civil stuff, can I get another one husband? I mean mine's gone a LOT for military service, and isn't the whole idea of a marriage being limited to two people some "traditional" or "religious" idea. When can I get husband number 2?

    Christine Nelson

  15. The Taliban would still like to live that way with arranged marriage. Submissive women. Important point that tradition has changed an incredible amount over time. Gay people should have their accepted place.

  16. Christine, I'm more inclined to just bring the troops home before sanctioning polygamy.

    Polygamy is a different question, and I do feel my logic get a bit shaky. In an earlier post, I suggested that polygamy may be more problematic in that it's often ties up with power/submission issues. But I'm open to your effort to make the case that the state has no compelling interest in denying you multiple licenses. (And it would help you keep the kids outnumbered. ;-) )

  17. I want to marry my goat! Anyone object 2 that?

    PS - this is freeky. My "word verification" to make this post is "holypet".....

  18. Anon@4:22
    There is no separation of church and state in the constitution.

    I believe supporting the 'traditional' marriage is in the interests of the state. Heterosexual marriages have provided the basis for society to grow and the human race to continue for generations upon generations. They are good things. They should be encouraged by the state. They should be rewarded.

    When you recognize homosexual marriages, you support homosexuality. This is not in the interest of society. What has homosexuality ever contributed to society? Nothing. (Maybe the rapid spread of HIV/AIDS?) What if everybody in society was homosexual? Where would society be today? Nonexistent, that's where.

    Heterosexual marriages should be recognized and encouraged. Homosexual marriages should not.

  19. Am laughing my butt off about "holypet". But I too want another husband, my husband is an attorney and works 70hours a week. Also I may want to marry my sister, she thinks like me and we love each other plus she doesn't leave the toilet lid up.

  20. I just heard a good one liner. Why do condoms have ribs. Because, there good in the mud. Why are humans the only species who have decided to have sex with their own sex? Thank goodness bulls don't. Me don't want to be a vegetarian.

  21. 1:47, you are wrong. Many species exhibit homosexual behavior, not just humans. Penguins, sheep, horses, flies, and on and on.

  22. In fact homosexual behavior is widespread among animal species. My mom used to joke more people should be gay to help control overpopulation. There may come a day we will encourage it!

  23. ...and don't forget those frogs getting freaky on Nature last night. (Of course, they're all sprouting male and female sex organs due to all of our pollution, so extrapolate there at your own peril.)

  24. Well there you go. My point exactly. Penguins, sheep, horses, flies, and frogs. I'm a little concerned to throw humans in with that group, but whatever. That appears to explain the level of intelligence. It also appears to explain Brokeback Mountain. They were up there on that mountain watching all of those sheep and decided, what the hell that looks good.

  25. Cory believes Love is a choice. I believe Love comes from the heart versus the head. I can't help it if I love somebody or something. Therefore, given Cory's argument, People make the choice to Love another person of the same sex. This is what it is. I'm not judging. I just don't understand why one would make a choice that is so counter-intuitive? The deviant sex must be really good.

  26. Being gay is not a choice. Possibly for some but everyone I know say they knew by age seven. Statistically gay people in Madison must be in the closet or leave for greener pastures. Iowa perhaps.

  27. The heart does some strange things, but lifelong commitment is a choice, renewed every day.

  28. But when love goes from your head to your heart, it becomes real.


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