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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JREF Censored on YouTube via DMCA

YouTube has suspended the James Randi Education Foundation channel, The FriendlySkeptic. JREF hopes to get it back soon. From the video information:

To complain to YouTube follow this link Scroll to the very bottom and click on "new issue" Select "suspended account" from the options and express your opinion. Download the video above from MediaFire The DMCA is a wonderful 1990's Act of Congress that lets printer manufacturers file a copyright to block third party ink refills in the name of protecting children from pornography. Clause after clause of this act are getting struck down by the Supremes, but still it limps along frustrating mostly legitimate users who run into it. Anyway, DCMA forces YouTube to suspend an account if anyone makes a claim that something uploaded violates a copyright held by another. Then, after cautious investigation, the account may be reinstated. Technically the filer of a false claim is liable to criminal charges. But this has apparently never been executed. The closest case I know of was Thunderf00t vs. VenomfangX, where a Creationist made a false claim of infringement on the author of the "Why People Laugh At Creationists" series. Meanwhile another prominent bastion of proper skepticism has been banned from YouTube.

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Jim Webb’s heroic speech on the need for prison reform

In reading Glenn Greenwald's column at Salon, I learned the extent to which Senator Jim Webb has heroically spoken out on the need for prison reform. Webb certainly hits the nail on the head. Our current prison system is dehumanizing and it drains the public treasury. We can do much much better. Here are Webb's words:

Let's start with a premise that I don't think a lot of Americans are aware of. We have 5% of the world's population; we have 25% of the world's known prison population. We have an incarceration rate in the United States, the world's greatest democracy, that is five times as high as the average incarceration rate of the rest of the world. There are only two possibilities here: either we have the most evil people on earth living in the United States; or we are doing something dramatically wrong in terms of how we approach the issue of criminal justice. . . .

The elephant in the bedroom in many discussions on the criminal justice system is the sharp increase in drug incarceration over the past three decades. In 1980, we had 41,000 drug offenders in prison; today we have more than 500,000, an increase of 1,200%. The blue disks represent the numbers in 1980; the red disks represent the numbers in 2007 and a significant percentage of those incarcerated are for possession or nonviolent offenses stemming from drug addiction and those sorts of related behavioral issues. . . .

In many cases these issues involve people’s ability to have proper counsel and other issues, but there are stunning statistics with respect to drugs that we all must come to terms with. African-Americans are about 12% of our population; contrary to a lot of thought and rhetoric, their drug use rate in terms of frequent drug use rate is about the same as all other elements of our society, about 14%. But they end up being 37% of those arrested on drug charges, 59% of those convicted, and 74% of those sentenced to prison by the numbers that have been provided by us. . . .

Another piece of this issue that I hope we will address with this National Criminal Justice Commission is what happens inside our prisons. . . . We also have a situation in this country with respect to prison violence and sexual victimization that is off the charts and we must get our arms around this problem. We also have many people in our prisons who are among what are called the criminally ill, many suffering from hepatitis and HIV who are not getting the sorts of treatment they deserve.

Importantly, what are we going to do about drug policy - the whole area of drug policy in this country?

And how does that affect sentencing procedures and other alternatives that we might look at?

Greenwald picks up where Webb's quote (above) stops. This is a critical issue that needs immediate attention, for all of our good. We can do a lot better than arguing to lock up all the "bad" guys but then defining the "bad" guys simplistically and then making it all worse with the way we treat those "bad" guys.

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As If We Didn’t Know

Politics dictated FDA policy? Say it isn't so! According to this NY Times piece, the Bush Administration (they get the blame because, after all, he was the Decider) bade the FDA to meddle with contraception when it suited a certain agenda. What I find so delightful about this, as with the Dover PA decision on Intelligent Design in the classroom, is that a Republican judge, this time a Reagan appointee, made the call. The thing is, contraception and all that it implies really ought to be a conservative issue. I mean, really---it has all the hallmarks of the last 60 years of conservative philosophy built on the rights of the individual, the freedom from interference being chief among them. You would think conservatives would have leapt on this a long time ago, staking it out as exemplary of the idea of American Individualism and the freedom to act as a moral agent, dictating one's own destiny and making determinations about how one will live one's life free from government meddling. Handing both men and women the tools---provided by the free market, to boot---to manage their own lives in accordance with their formulation as individuals of the American Dream should have been a slam dunk for conservatives. They should have been cheering for it since the days of Margaret Sanger. What is more, given the attitude of the communist states, which dismissed Sanger and the entire notion of family planning as a bourgeois, capitalist plot to undermine the growth of the collective, this should have been part and parcel of rearing a generation of people cumulatively opposed to Soviet style socialism and collectivism. Everything about the Choice movement smacks of good ol' fashion American Values! It is the perversity of the debate that is ironic, that it should be those who are castigated as liberal soldiers in the march to socialism and its destruction of all things individualist and true blue American who are the champions of the idea that people ought to have full say in the when and if of having children. How did this happen?

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