Friday, April 03, 2009

Iowa Supreme Court Says Yes to Gay Marriage

Wow. I am surprised. Usually when a higher court is going to hear a case its members are thinking about overturning the verdict held by a lower court. My thoughts are, as usual, mixed. Progress on gay rights is always welcomed on this blog but I do wonder about the backlash. This decision was, after all, made through the judicial process and not by the public at large and as we have seen in California, such progress can be easily overturned and since this decision was made in the heartland and not in a coastal liberal state like California, we can expect the opposition to push for a constitutional amendment which bans not only gay marriages but also civil unions, domestic partnerships, the Court's employment of "heightened scrutiny" (which is what the Court used here) when considering sexual orientation-based discrimination and who knows, maybe even employment nondiscrimination laws at the state and local level. The nuclear option will be employed.

Amendment backers have two ways (see Article X) to change Iowa's Constitution. For starters, they could ask their state representatives to let the public vote amend the state's constitution. Before such an amendment can go to the people it would have to pass by a simple majority vote in both houses twice - once by the legislative majority in power and the second by the new legislative majority that is voted into power after the general elections held in November.

Governor Chet Culver's political statement leaves a lot to be desired. It was sufficiently vague enough to suggest he could let the matter rest or pressure members of his own party to back such an amendment, depending upon the public's reaction. Governor Culver is a Democrat but he will probably run for a second term in a state not known for a strong gay rights record.

In the alternative, they could appeal to the public and have them vote for a constitutional convention in 2010 (every ten years this option is offered). If a simple majority of Iowa voters vote for the constitutional amendment, the state assembly will "provide for the election of delegates" who would in turn vote for or against any proposed amendment. If they vote for any proposed amendment they would submit them to the public at large.

I of course believe we should have the same right to marry our straight counterparts take for granted. Almost everyone, gay or straight, hopes they will find that right person they will spend the rest of their lives with. To use the state's law to demean those of us whose sexual nature leads us to seek that kind of relationship with a member of the opposite sex is particularly cruel.

Reasonable people can and do of course, disagree, and that makes the Court's decision even more remarkable given that there were no dissents. This is a first. Gay unions do not lead to procreation; straight relationships do so a state's decision to value the latter over the former is to some limited extent, understandable but science has a way of promoting that task without the state interference.

Most men want to marry a woman and most women want to marry a man and when they do engage in sexual intercourse they will, in all likelihood, give birth. States need not encourage people to engage in activities they will in all likelihood engage in anyway, nor should states penalize those whose sexual orientation makes such procreative living arrangement expectations nearly impossible to live up to.

Prudence though, might have led the court's justices to rule as New Jersey's Supreme Court justices did, and let the legislature decide whether they will recognize civil marriages or, in the alternative, civil unions.

A summary of the court's opinion can be found here (warning - this is a PDF file)
and the full opinion here (again, PDF File).

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