Varnum vs Brien: the abridged version of the Iowa Supreme Court Opinion upholding gay marriage

What follows is an abridged version of the Iowa Supreme Court Opinion upholding gay marriage: KATHERINE VARNUM vs. TIMOTHY J. BRIEN, Polk County Recorder. Decision date: April 3, 2009. Who would have thought that the next state to recognize gay rights was going to be Iowa? Right out here in the heartland, neighbor of Missouri, where I live? Many these states in the Midwest have taken pains to amend their laws to forbid gay marriage. I am highly impressed by the Court’s ruling and opinion in the case of Varnum vs. Brien, the Iowa Supreme Court Opinion upholding gay marriage (here’s the full text of the opinion). Here’s Des Moines Register’s brief description of the holding. It is an extraordinary opinion, extremely well-written and well-reasoned. It is extraordinary for both the legal analysis and for the emotional and social insights expressed by the court. This Court really gets what is at stake in this case, and did hide from any of the arguments asserted by the County. It’s amazing what happens when you carefully lay out all of the arguments for the world to see, and I do believe that the Court covered all of the arguments expressed by those who are opposed to gay marriage, even a big argument that the anti-gay-marriage forces didn’t have the courage to raise in the courts (religious objections). Because the Court took the time to carefully lay out all of those anti-gay-marriage arguments, we can all see how empty and paranoid they sound in the abstract. When we see the anti-gay-marriage arguments calmly on paper, without the angry faces and the megaphones, we see them as the specious arguments they truly are. Today, I took the time to read the entire 70-page opinion by the Iowa Supreme Court. It occurred to me, though, that many people (especially non-lawyers) might not want to work their way through the entire opinion. Therefore, I have created this “abridged” version, preserving the significant points, but redacting the citations and technical points. This actual words of the Court’s opinion are truly worth your while. Don’t settle for the simplified news media stories on this decision. This court’s opinion is professional and inspirational. In it’s thoroughness and directness regarding a tumultuous subject, it reminds me of the Pennsylvania decision of Tammy Kitzmiller, et al. v. Dover Area School District, et al., (full decision of the Dover decision here). In this legal decision, the Iowa Supreme Court takes the long view of history, as you can see at page 16, where the Court points out that it prohibited slavery more than 15 years before the U.S. Supreme Court upheld the rights of slave-owners in the Dred Scott case. This discussion is on the mark, given that any legislation curtailing the rights of gays is based on bigotry. The Court has a long analysis ready for those who would argue that homosexuality is a choice, starting around page 41 in the “immutability” section. The also Court slams the concept of "civil union" as a second rate version of marriage (for example, see page 9). What was at stake in this case was Iowa Code section 595.2(1), which ostensibly provides:

“[o]nly a marriage between a male and a female is valid.”

The Court considered a mountain of evidence and reviewed dozens of amicus briefs (briefs from interested individuals and organizations who are not direct parties) before rendering its opinion.

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Iowa becomes the third state to allow gay marriage

Based on a unanimous ruling by the Iowa Supreme Court, Iowa has become the third state in the nation to allow gay marriage (joining Connecticut and Massachusetts). The following excerpt is from the Desmoine Register:

Iowa’s gay marriage ban “is unconstitutional, because the county has been unable to identify a constitutionally adequate justification for excluding plaintiffs from the institution of civil marriage,” Cady wrote in the 69-page opinion that seemed to dismiss the concept of civil unions as an option for gay couples.

“A new distinction based on sexual orientation would be equally suspect and difficult to square with the fundamental principles of equal protection embodied in our constitution,” Cady wrote.

The ruling, however, also addressed what it called the “religious undercurrent propelling the same-sex marriage debate,” and said judges must remain outside the fray. . .

“Our constitution does not permit any branch of government to resolve these types of religious debates and entrusts to courts the task of ensuring that government avoids them,” the opinion says.

The ruling explicitly does not affect “the freedom of a religious organization to define marriage it solemnizes as unions between a man and a woman,” the justices stressed.

Although I haven't yet read the opinion, it sounds like the Justices are pointing to a common-sense compromise to the gay marriage dispute: The civil ceremony applies to any two people and the state must not discriminate as to sex by requiring those two people to be of the opposite sex. The state-sanctioned marriage will endow all couples equally with all of the legal benefits of marriage. On the other hand, religions are free to define marriage as they would like. A conservative church would be free to reject an application to marry same sex couples. I think that this is the best way to approach the national divide. If your religion is really important to you, go ahead and let your religion (not your government) define marriage. In the meantime, don't try to deny government benefits to others based upon sex differences. When I read the opinion, I'm interested in knowing how the Court found discrimination. After all, the traditional government definition is not anti-woman or anti-man. In a sense, it's even-handed. From the perspective of any gay person seeking to be married, though, that definition trods on what I would agree to be fundamental liberties such as the right to associate. After I review the opinion, I'll add a comment.

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What should we do about all of the new people?

What should we do about all of the new people? What new people? Consider this information from the British Medical Journal:

The world’s population now exceeds 6700 million, and humankind’s consumption of fossil fuels, fresh water, crops, fish, and forests exceeds supply. These facts are connected. The annual increase in population of about 79 million means that every week an extra 1.5 million people need food and somewhere to live. This amounts to a huge new city each week, somewhere, which destroys wildlife habitats and augments world fossil fuel consumption.

What does the BMJ suggest as a solution? Nothing coercive. Rather, start by emphasizing that two children is the largest responsible number of children a family should have. Second, make sure that everyone has access to birth control, given that about 1/2 of the world's births are unplanned; that's right: one-half. This article asks, "isn’t contraception the medical profession’s prime contribution for all countries?" I would think so. It's time to stop being cowed by those who get shrill--even furious--when we merely raise the issue of overpopulation, as though discussing the carrying capacity of the Earth is automatically the precursor to instituting coercive techniques to stop only poor people from having children. It's time to discuss this issue of overpopulation firmly and responsibly, keeping in mind that each birth in a developed Western country uses 160 times the amount of resources as each baby born in the Third World.

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At It Again

Oh please, is there no respite from this sort of thing? Over on Pharyngula is this little bit on the Vatican's newest attempt to recruit an ideal priesthood, this time free of gays. Now, the Catholic Church has done screening for centuries. They actually work hard to dissuade people from attempting to be priests because they know how difficult the various vows are to keep. I don't doubt for a minute that some of this screening is responsible, in kind of an unfortunate "unintended consequences" way, with the number of child sexual abuse cases that seem rampant more in the Catholic Church than in any other. You screen for people who have "normal" sexual proclivities and eliminate the ones who probably won't be able to maintain celibacy, you end up with (probably) a higher percentage of those who exhibit a lower than average normal sex drive (however you decide to define that), but may have a higher, shall we say, alternative proclivity... Anyway, that's just my opinion. But apparently the Vatican has decided there's something to looking at alternative sexualities as a deal breaker, but for goodness sake the question still needs to be asked, just what is it they find so offensive and, we assume, dangerous about gays? By and large, the Catholic Church, for all its faults, possesses one of the more sophisticated philosophical approaches to life in all its manifestations among the various sects. As a philosophy teacher of mine said once, "they seem to have a handle on what life is all about." Despite the very public embarrassments that emerge from the high profile conservative and reactionary elements within it, the Catholic Church probably has the healthiest worldview of the lot. (I was a Lutheran in my childhood and believe me, in the matter of guilt the Catholics have nothing on Lutherans.) But they have been electing popes who seem bent on turning the clock back to a more intolerant and altogether less sophisticated age, as if the burden of dealing with humanity in its manifold variation is just too much for them. They pine for the days when priests could lay down the law and the parish would snap to. They do not want to deal with humanity in the abstract because it means abandoning certain absolutes---or the concrete---in lieu of a more gestalt understanding. It would be hard work. And they have an image problem. I mean, if you're going to let people be people, then what's the point of joining an elite group when there are no restrictions of the concept of what encompasses human? But really...this is just embarrassing.

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Charles Darwin’s exceedingly dangerous idea

In Darwin's dangerous Idea: Evolution and the Meanings of Life, Daniel Dennett describes Darwin's idea as the "best idea anyone has ever had."

In a single stroke, the idea of evolution by natural selection unifies the realm of life, meaning, and purpose with the realm of space and time, cause and effect, mechanism and a physical law. But it is not just a wonderful scientific idea. It is a dangerous idea.

What exactly was Darwin's dangerous idea? According to Dennett, it was "not the idea of evolution, but the idea of evolution by natural selection, an idea he himself could never formulate with sufficient rigor and detail to prove, though he presented a brilliant case for it." (42) Dennett considers Darwin's idea to be "dangerous" because it has so many fruitful applications in so many fields above and beyond biology. When Dennett was a schoolboy, he and some of his friends imagined that there was such a thing as "universal acid,"

a liquid "so corrosive that it will eat through anything! The problem is: what do you keep it in? It dissolves glass bottles and stainless steel canisters as readily as paper bags. What would happen if you somehow came upon or created a dollop of universal acid? With the whole planet eventually be destroyed? What would it leave in its wake? After everything had been transformed by its encounter with universal acid, what would the world look like? Little did I realize that in a few years I would encounter an idea-Darwin's idea-bearing an unmistakable likeness to universal acid: eats through just about every traditional concept, and leaves in its wake a revolutionized world-view, with most of the old landmarks are still recognizable, but transformed in fundamental ways.

(63) Darwin's idea is powerful, indeed. Many people see it as having the power to ruin the meaning of life.

People fear that once this universal acid has passed through the monuments we cherish, they will cease to exist, dissolved in an unrecognizable and unlovable puddle of scientific destruction.

Dennett characterizes this fear is unwarranted:

We might learn some surprising or even shocking things about these treasures, but unless our valuing these things was based all long on confusion or mistaken identity, how could increase understanding of them diminish their value in our eyes? (82)

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