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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Why Michelle Obama should never have touched the Queen of England.

Jon Stewart and John Oliver explain why it is that you should never touch the Queen of England (as Michelle Obama recently did).

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The Poisonous Queen
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Putting the bank “bailout” in perspective

Robert Sheer has crunched some big numbers and shared them at TruthDig:

The good news on the government’s “No Banker Left Behind” program is that, according to the special inspector general’s report on Tuesday, the total handout to date is still less than 3 trillion dollars. It’s only $2.98 trillion, to be precise, an amount six times greater than will be spent by federal, state and local governments this year on educating the 50 million American children in elementary and secondary schools. The bad news is that even greater amounts of money are to be thrown down what has to be the world record for rat holes...

Now Summers and the other finance gurus who move so easily from Wall Street to Pennsylvania Avenue assure us that those professionals who made the toxic swap deals are too big to fail and must be entrusted with 3 trillion of our dollars to save themselves from disaster. And thanks to the laws they wrote, the bankers are likely to be covered for their socially destructive behavior by a get-out-of-jail-free card.

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Chinks II: Food Stamps

Which reminds me: I was getting a pedicure. I know, so decadent (for a poverty lawyer, teehee), but I was, in this Vietnamese joint, tiny like a hallway lined with big massage chairs. A dangerously overweight, black woman walked in. No, she lumbered in with her handbag at her side, looking tired of lumbering. Titters from the nail-doers. Manicurists, I guess. They’d noticed her too: first the weight, then the skin color. Or perhaps I’m projecting. In any case, they beckoned her to a chair, malignant smiles aglow like jack-o-lanterns, and she quietly succumbed to the growing twitters, over-generous, nonsensical verbal massaging, and I cringed. I cringed visibly. I said nothing. They asked her if she exercised often. They asked if she had a job. For many years, she said. Yes. “Food stamps? Are you on food stamps?” they asked. No, she said quietly. She was not receiving food stamps, and had never, in her life, benefited from food stamps. By now, she'd noticed me staring. I was. I was staring at her - and with her- at us in these ridiculous chairs, prisoners of racists. I could tell the woman picking at my toenails to give it a rest, put my shoes on, pay the bill, tell them all off and leave. Or I could sit there quietly and smile sympathetically at this dangerously overweight black woman who knew, I hoped, that I knew that I was a coward. She smiled at me.

Continue ReadingChinks II: Food Stamps