Varnum v. Brien is a recent Iowa District Court decision
that rules that Iowa's law that limits marriage to a man and a woman violates the equal protection clause of the Iowa Constitution. The argument is one that you have heard before--that because the law prohibits two men from marrying, or two women from marrying, it discriminates based on sex.
Much of the beginning of the decision is an attempt by plaintiffs and defendants to exclude expert testimony about the consequences (positive or negative) of same-sex marriage. What should concern Americans, even if they aren't hostile to same-sex marriage, is that the judge was deciding which experts weren't expert enough to testify because he was going to use their opinions and statements as part of the process of deciding whether same-sex marriage was constitutionally allowed or not. Ordinarily, weighing the merits of a particular law is a job for the legislature
--not a judge. A judge is supposed to be deciding points of law, not, "Is this a good idea or not?"
Something of the judge's pretense at objectivity can be deduced from how one of the expert witnesses for the defendants (those arguing that the Iowa law should be allowed to stand):
The Defendant also submits the statements of purported economist Dr. Steven Rhoads. Dr. Rhoads possesses a Ph.D. in government and an M.P.A. in Economic Analysis and Public Policy.
Hmmm. A Masters' Public Administration with that specialty certainly doesn't sound like a purported
One of the claims for why Iowa should allow same-sex marriage is:
36. Because their parents cannot marry, Minor Plaintiffs are subjected to the historical stigma of "illegitimacy" or "bastardy" which, though of diminished social and legal force, is still a status widely considered undesirable.
Unlike, of course, the stigma of having two lesbians raising them. That wouldn't be stigmatizing at all!
Some of the other claims are real head-scratchers in terms of, "What constitutional right is that?"
37. Without access to the institution, familar language and legal label of marriage, Plaintiffs are unable instantly or adequately to communicate the depth and permanence of their commitment to others, or to obtain respect for that commitment, as others do simply by invoking their married status.
What part of the U.S. or Iowa Constitution guarantees this right to "adequately" "communicate the depth and permanence of their commitment"? And I also scratch my head when I wonder what they are talking about. My wife and I have been married 27 years, but when we lived in California--and even here in Idaho--that makes us pretty darn weird. Marriage, unfortunately, is only slightly more permanent than a car loan to many Americans now. A state recognized marriage is actually less of a commitment than a car loan; just try to get your bank to walk away from your car loan without payment in full.
38. Plaintiffs' inability to marry their chosen partners is a painful frustration of their life goals and dreams, their personal happiness and their self-determination.
Having to work five days a week at a job that I don't enjoy "is a painful frustration of [my] life goals and dreams, [my] personal happiness and [my] self-determination." But I know better than to claim that I have some right to force the government to solve that problem for me.
Some of this language reminds me of something that an idealistic, not very bright teenager might write, with no awareness that the courts are supposed to be tied at least lightly to reality:
41. Plaintiffs are harmed in an infinite number of daily transactions as a result of being denied the right to marry, including transactions with employers, hospital, courts, preschools, insurance companies, businesses such as health clubs, and public agencies including taxing bodies.
number of daily transactions? Well, maybe countless
(in the sense of, "too many for us to immediately figure out"). But infinite
--someone needs to go look up the meaning of that word.
Some of these claims are completely laughable, not because they are wrong on all counts, but because they are wrong on the single count that matters in this case: same-sex:
96. Marriage has evolved over time, in legislatures and courts, to meet the changing needs of American society and to embody fuller notions of consent and personal choice.
It certainly has evolved and changed. But there is one aspect of marriage that has been constant for at least three thousand years, and across (as near as I can tell) every culture, everywhere: it involves opposite sex. There have been polygamous marriage forms (one man, multiple women). Far less frequently, polyandrous marriages (one woman, multiple men). But two or more people of the same sex? Never before in history that I know of--and that is one of the most constant aspects of marriage in all human societies.
The history of this decision is hopelessly wrong. Claim 99 starts out okay:
When Iowa's first marriage law was passed, the centuries-old doctrine of coverture, in which the woman's separate legal identity disappeared into the man's upon marriage, reigned in Iowa as elsewhere.
This is true, as far as it goes. In fact, a number of states had (and may still have) statements that a married couple are legally one person. I believe that this is why a married person may not be legally compelled to testify against his or her spouse. The next sentence however, is what happens when "women's studies" replaces real academic disciplines:
Married women were essentially chattel; they were not considered "persons" who could exercise rights, hold property, earn money, or deny their husbands access to their bodies.
Chattel means personal property, other than real estate. You know--something that you can buy and sell, like a slave. This is flat out false. And while the rest of the sentence is essentially correct about the limited economic independence of a married woman, the idea that a married woman could not "exercise rights" (such as the right to free speech) is quite bizarre, and as far as I can determine, completely false. Many chose not to do so because they "knew their place" in society, or because they preferred not to have conflicts with social norms, but this is a bit different from having no rights.
This historical claim also appears to be incorrect:
The vast majority of States had laws prohibiting certain marriages based on racial and ethnic classifications; most of these laws survived long after Emancipation.
As I pointed out last year
in my statement to the Idaho legislative committee considering a marriage amendment:
Such laws were never universal in the United States. In 1910, at the heights of Social Darwinism (which put enormous emphasis on racial difference), only 28 out of the 46 states had such laws.[Gabriel J. Chin and Hrishi Karthikeyan, "Preserving Racial Identity: Population Patterns and the Application of Anti-Miscegenation Statutes to Asian Americans, 1910-1950," Berkeley Asian Law Journal, 9:1 , 14.]
There were certainly laws based on race
--in some states, prohibiting whites from marrying non-whites; in others, prohibiting whites from marrying Asians. But ethnic classifications? I would like to see some examples.
I really don't know enough about the Iowa Constitution's equal protection clause to know if this decision is wrong about this--but I do know that the appropriate way to understand its intent is to look at when it was added, and how it was understood at the time. Art. I, sec. 6
All laws of a general nature shall have a uniform operation; 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.
Here is the 1857 Constitution
, where this clause first appears. If Iowa's voters intended this as a ban on discrimination against homosexuals in 1857, my, what a progressive state they were!