Uphold marriage rights of gays and lesbians,Iowa Supreme Court's decision in Katherine Varnum et al. v. Timothy J. Brien

The Iowa Supreme Court's decision in Katherine Varnum et al. v. Timothy J. Brien is among only a handful of supreme court rulings nationwide that uphold marriage rights of gays and lesbians. It is clearly outside the mainstream of popular opinion, and likely the thinking of many other state and federal courts. But the Iowa Supreme Court has a history of reading the state constitution independently and being faithful to its words.Some notable examples: The Iowa Supreme Court, sitting as a territorial court two decades before the Civil War, ruled that a former Missouri slave living in Iowa was a freedman, not a white man's property. In an 1873 steamboat case and in an 1868 public-schools case, the Iowa court struck down the notion of "separate but equal" accommodations for blacks and whites eight decades before the U.S. Supreme Court ruling in Brown v. Board of Education. In 1949, 15 years before Congress passed the Civil Rights Act, a Des Moines druggist was successfully prosecuted for refusing counter service to blacks.
"In each of those instances," Justice Mark Cady wrote for a unanimous court in the Varnum case, "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.' "The court faced another fork in the road in the marriage case. The court could have easily avoided this decision, either by sending the case back to the trial court with instructions that would lead to a different result, using a looser standard to judge the legitimacy of the marriage law or inviting the Legislature to provide the legal benefits of marriage through same-sex civil unions.
Instead, the court addressed the constitutional question head-on, and could find no principled way to salvage the state's marriage restriction.Justice Cady's opinion for the court is a first-rate example of clear writing and thinking, the very antithesis of result-oriented jurisprudence. In a conversational tone, it lays out in painstaking detail how the court reached its decision.
At the heart of the issue is the Iowa Constitution's Bill of Rights, which, among other things, says "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 Iowa court has said before that persons "similarly situated" must be treated similarly, and in Varnum the court concluded that couples, homosexual or heterosexual, are similarly situated because both benefit in the same way from the legal rights and privileges of marriage.
Not every state law that treats classes of people differently is by definition unconstitutional, and the courts use varying standards to distinguish each. For example, when deciding cases involving rights of groups subjected to historical discrimination, such as African-Americans, courts apply the strictest scrutiny. Laws that apply to individuals in the majority get a lower standard of review. In Varnum, the court applied a middle-level test as it carefully examined each of the state's justifications for the gay-marriage ban. None met even the middle-level standard.Aware that it might be accused of "inventing" new rights, the court pointed out that the meaning of liberty is not limited to the understanding of men who wrote the state constitution in 1857, or to the current popular understanding of rights in our time. As the U.S. Supreme Court noted in 2003, "time can bind us to certain truths and later generations can see that laws once necessary and proper in fact serve only to oppress."The Iowa Supreme Court on Friday made some people happy. It made some people angry. That is irrelevant.
The job of the court is not to be popular but to say what the law is, and the court did that in splendid fashion.