Brown
Penultimate Amazing
- Joined
- Aug 3, 2001
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Just a reminder: The decision can be found here.
The Iowa Constitution provides: "(N)o person shall be deprived of life, liberty, or property without due process of law." In addition to a Due Process Provision, the Iowa Constitution has an Equal Protection provision. Although these provisions parallel the U.S. Consititution, Iowa is not obligated to follow U.S. Consititutional jurisprudence when deciding questions under its own constitution. Iowa can (and does) look to federal cases for guidance, however.
In both Iowa and Federal law, a key inquiry is whether a law affects a "fundamental right." If the right is "fundamental," the law affecting it must be viewed with the elevated degrees of scrutiny. Freedom of expression is a fundamental right. Voting is a fundamental right.
And the right to marry is a fundamental right.
By Iowa law, it is a right allowed to some, but denied to others.
Laws have to be supported by reasons. When the law impinges upon a fundamental right, the reason has to be a damn good one. But in light of the facts set forth earlier in the ruling, where is the reason? Personal opinion won't cut it, nor will conclusory assertions that aren't backed up with empirical studies. If the state is going to grant certain rights to one group but deny those same rights to another group that is similarly situated, the state must have a compelling reason for this discrimination.
The County Recorder listed five reasons to ban gay marriage (p. 50). Judge Hanson not only found the reasons uncompelling, he found them so lame that they wouldn't support the marriage ban even if there were no fundamental right at stake. One of the supposed governmental interests, that of promoting traditional marriage for its own sake, was not deemed to be a legitimate governmental interest at all.
To the extent that the proffered reasons were legitimate on their face, they were insufficient to justify the discrimination, in Judge Hanson's view, because they were unsupported by evidence. In this thread and this thread, I discuss the concept of "legislative factfinding," a process in which the legislature can "find" as fact things that are clearly at odds with the weight of the evidence. If the judge were "legislating," he could engage in the same shady and often dishonest practice. But because he's acting as a judge, he has to base his decision on evidence. And in this case, the evidence was not only overwhelming, it was basically one-sided. (This is perhaps a credit to the Assistant Polk County Attorney, who apparently argued the case zealously but who refused to go "into the gutter" by branding all homosexuals as evil people per se, unfit parents or sick deviants.)
One of the proposed governmental interests behind keeping gays from marrying is what Judge Hanson called "responsible procreation." Yet there was no record supporting any conclusion that homosexuals as a group were irresponsible. On the contrary, the undisputed facts were that homosexuals could be good parents. Moreover, heterosexuals were allowed to marry even if they didn't (or couldn't) procreate.
The other principal governmental interest is "conserving state and private resources." Judge Hanson gives this argument short shrift, but on a surprisingly technical basis. The issue could be swiftly handled on its merits, but Judge Hanson rules that the Defendant has failed to meet an evidentiary standard (which may indeed be the case, as this ground has far less appeal than the "responsible procreation" grounds).
In the end, Judge Hanson determined that both the Due Process and Equal Protection provisions of the Iowa Constitution were violated.
Now, will this opinion hold up on appeal?
First, consider the composition of the seven-member Iowa Supreme Court. The Court has long resisted meaningless labels as a "liberal" or "conservative" court, but one who knows the justices can easily find more than four justices who would be inclined to consider the striking down the statute, and all of them would give the issue serious consideration. In addition, all of them would be impressed by the work that Judge Hanson put into his ruling.
Second, there is a weakness in Judge Hanson's ruling, namely, he decided the issue on summary judgment. It can be difficult to defend summary judgments on appeal because any dispute as to any material fact is supposed to preclude summary judgment. If there's a dispute as to any material fact, then the issue has to go to trial for resolution. The Iowa Supreme Court could, and perhaps would, vacate the ruling on technical grounds, saying that there was a disputed issue of material fact. This wouldn't be the same as saying that Judge Hanson was wrong, but it would postpone the effective date of the ruling for perhaps a year or two.
The Iowa Constitution provides: "(N)o person shall be deprived of life, liberty, or property without due process of law." In addition to a Due Process Provision, the Iowa Constitution has an Equal Protection provision. Although these provisions parallel the U.S. Consititution, Iowa is not obligated to follow U.S. Consititutional jurisprudence when deciding questions under its own constitution. Iowa can (and does) look to federal cases for guidance, however.
In both Iowa and Federal law, a key inquiry is whether a law affects a "fundamental right." If the right is "fundamental," the law affecting it must be viewed with the elevated degrees of scrutiny. Freedom of expression is a fundamental right. Voting is a fundamental right.
And the right to marry is a fundamental right.
By Iowa law, it is a right allowed to some, but denied to others.
Laws have to be supported by reasons. When the law impinges upon a fundamental right, the reason has to be a damn good one. But in light of the facts set forth earlier in the ruling, where is the reason? Personal opinion won't cut it, nor will conclusory assertions that aren't backed up with empirical studies. If the state is going to grant certain rights to one group but deny those same rights to another group that is similarly situated, the state must have a compelling reason for this discrimination.
The County Recorder listed five reasons to ban gay marriage (p. 50). Judge Hanson not only found the reasons uncompelling, he found them so lame that they wouldn't support the marriage ban even if there were no fundamental right at stake. One of the supposed governmental interests, that of promoting traditional marriage for its own sake, was not deemed to be a legitimate governmental interest at all.
To the extent that the proffered reasons were legitimate on their face, they were insufficient to justify the discrimination, in Judge Hanson's view, because they were unsupported by evidence. In this thread and this thread, I discuss the concept of "legislative factfinding," a process in which the legislature can "find" as fact things that are clearly at odds with the weight of the evidence. If the judge were "legislating," he could engage in the same shady and often dishonest practice. But because he's acting as a judge, he has to base his decision on evidence. And in this case, the evidence was not only overwhelming, it was basically one-sided. (This is perhaps a credit to the Assistant Polk County Attorney, who apparently argued the case zealously but who refused to go "into the gutter" by branding all homosexuals as evil people per se, unfit parents or sick deviants.)
One of the proposed governmental interests behind keeping gays from marrying is what Judge Hanson called "responsible procreation." Yet there was no record supporting any conclusion that homosexuals as a group were irresponsible. On the contrary, the undisputed facts were that homosexuals could be good parents. Moreover, heterosexuals were allowed to marry even if they didn't (or couldn't) procreate.
The other principal governmental interest is "conserving state and private resources." Judge Hanson gives this argument short shrift, but on a surprisingly technical basis. The issue could be swiftly handled on its merits, but Judge Hanson rules that the Defendant has failed to meet an evidentiary standard (which may indeed be the case, as this ground has far less appeal than the "responsible procreation" grounds).
In the end, Judge Hanson determined that both the Due Process and Equal Protection provisions of the Iowa Constitution were violated.
Now, will this opinion hold up on appeal?
First, consider the composition of the seven-member Iowa Supreme Court. The Court has long resisted meaningless labels as a "liberal" or "conservative" court, but one who knows the justices can easily find more than four justices who would be inclined to consider the striking down the statute, and all of them would give the issue serious consideration. In addition, all of them would be impressed by the work that Judge Hanson put into his ruling.
Second, there is a weakness in Judge Hanson's ruling, namely, he decided the issue on summary judgment. It can be difficult to defend summary judgments on appeal because any dispute as to any material fact is supposed to preclude summary judgment. If there's a dispute as to any material fact, then the issue has to go to trial for resolution. The Iowa Supreme Court could, and perhaps would, vacate the ruling on technical grounds, saying that there was a disputed issue of material fact. This wouldn't be the same as saying that Judge Hanson was wrong, but it would postpone the effective date of the ruling for perhaps a year or two.
