So, in an effort to make sure I know the case, I’m going to spend my Friday night (which turned into Saturday and Sunday afternoons) perusing Varnum v. Brien and setting out what I would state the summary to be.
(A note before you begin, this ended up being 9 and a half pages in word. That's a lot longer than I thought it was going to be, but I still think it’s good. This is not meant to be a legal analysis, by any means, and is simply meant to put the ruling into a more concise and focused format. But I by no means think it was a poorly written opinion. On the contrary, I think it is pure poetry, (indeed, as you'll see, I started out not wanting to quote a lot, but many times the court said it better than I ever could, hence the reason they're the Supremes) whether you agree with the ruling or not. I also hope I’ve presented it in as balanced a voice as possible, even with my comments inserted.)
If you're not a law student and want a toned-down version, just ask.
So enjoy, comment, and if you want to repost, just ask permission.
Some background to begin with: I was too young and naïve to remember or care when this whole thing started back in 1998, but the legislature passed the Defense of Marriage act, which added to state code that “only a marriage between a male and a female is valid.” In time, six same-sex couples who were denied marriage licenses by the Polk County Recorder’s office brought this suit against the Polk County Recorder. (Des Moines, state capital of Iowa, is located in Polk County) The couples brought the suit in the form of a summary judgment motion, using many arguments which the court addresses in its opinion, and the Polk County District Court concluded the statute was unconstitutional under the due process and equal protection clauses in the Iowa Constitution.
What resulted was an uproar, in the fall of my senior year at Iowa State, in late October 2007. For something less than 27 hours, gay marriage was allowed in Iowa. Because of the large amount of paperwork required to obtain a marriage license, only one couple was legally married in that limited amount of time, Sean Fritz and Timothy McQuillan, two students also at Iowa State at the time. (The article which followed this event in the student newspaper can be found
here. An interesting quote from the article: “"The voters [need to decide] if they want Iowa to become the Massachusetts of the Midwest," McDowell said.”)
But the day after the ruling from the District Court handed down this ruling and ordered the recorder’s office to start processing same-sex marriage licenses, it stayed the order, pending the appeals process to the Iowa Supreme Court.
So comes this case. In the case, per our LRW classes, the court uses a basic outline form, which I shall follow.
II. Standard of Review
Pretty basic, the court will review the facts of the case under a summary judgment standard.
III. Constitutional Separation of Powers
The court goes into a declaration stating the Constitution is the upmost law of the state and when individuals seek an upholding of their rights, the separation of powers must be strictly observed. The constitution also creates certain rights, of which equal protection and due process are two, which the government cannot infringe upon.
At this point I have to point out that either the Supreme Court has been writing excellent opinions that I fail to read, or Justice Cady knew this opinion would have a nationwide and varied population reading Varnum, because he goes to great lengths to explain the history, notion, and process of the 3-tiered system of government. It also seems to know the outcome of this case may be unpopular to some, but must be decided this way, because it points out that “[a] statute inconsistent with the Iowa Constitution must be declared void, even though it may be supported by strong and deep-seated traditional beliefs and popular opinion,” (pg 13) and the point of the courts is to “to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts” (pg 14), and “[j]udges ought not to be partisans, and be influenced by partisan control. Their duty is to interpret and apply the law, to the end that the liberty, and the rights and property, of the people may be secured.” (pg 14)
IV. Equal Protection.
A. Background Principles
In both the separation of powers and this section the court recognized that the standards of the public changes as time progresses, so the fabric of society must be decided in the context of each generation, not sticking to outdated social norms. They use the progression of cases, such as race, where discrimination was once an accepted practice, but society has since seen that it is inherently contrary to the notion of equal protection.
In my favorite part of the opinion, the court goes into the history of cases in Iowa, and how progressive the state had been. A few examples include it struck down denying slaves equal protection and prohibiting women from being admitted to the bar, ironically, in both cases, prior to the US Supreme court upheld laws allowing these practices. It also “struck blows” at segregation as early as 1868, long before the US Supreme Court decided the Brown cases.
B. Legal Tests to Gauge Equal Protection
According to the court, in quoting precedent in Iowa, the equal protection clause in the Iowa Constitution is similar to that of the US Constitution in that it ‘is essentially a direction that all persons similarly situated should be treated alike.’ (pg 19) But in looking at the actions of the legislative branch of government, in keeping with the separation of powers, the judiciary “must give respect to the legislative process and presume its enactments are constitutional.” (pg 19-20) But the level of deference paid to the legislature is determined by the level of scrutiny used to determine equal protection cases.
Cady then goes into a very explicit explanation of the levels of scrutiny. When I said that I learned more about equal protection and levels of scrutiny from Varnum than from a semester of Con Law, this is where it started.
Under the rational basis test, the courts are highly deferential to the legislature, and it requires “only a plausible policy justification, mere rationality of the facts underlying the decision and, again, a merely rational relationship between the classification and the policy justification.” (pg 21)
However, “courts apply a heightened level of scrutiny under equal protection analysis when reasons exist to suspect “prejudice against discrete and insular minorities . . . which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.” (pg 21-22, citing Carolene Prods.) “Under this approach, classifications based on race, alienage, or national origin and those affecting fundamental rights are evaluated according to a standard known as “strict scrutiny.” Classifications subject to strict scrutiny are presumptively invalid and must be narrowly tailored to serve a compelling governmental interest.” (pg 22, citations omitted)
[NESL classmates: I should note, however, in contrast to what Prof Garza was saying on Friday, Cady specifically says in note 8 on page 22 that “References to “heightened” scrutiny in this opinion are meant to be general; heightened scrutiny includes any judicial inquiry more searching than the rational basis test. References to “intermediate” scrutiny discuss a specific level of scrutiny between the rational basis test and strict scrutiny.” As I will point out later, the court specifically uses intermediate scrutiny to determine this case, they don’t try to create some vague new level located somewhere between intermediate and strict.]
The intermediate tier has been “applied to statutes classifying on the basis of gender or illegitimacy and requires the party seeking to uphold the statute to demonstrate the challenged classification is substantially related to the achievement of an important governmental objective. … To survive intermediate scrutiny, the law must not only further an important governmental interest and be substantially related to that interest, but the justification for the classification must be genuine and must not depend on broad generalizations.” (pg 22)
C. Determination of Constitutional Facts
I’ll admit, this section is one which I made no effort to understand the first time around, and I’m not sure it makes much difference in the grand scheme of things. But, it appears to me that because of the status of some of the testimony, the district court excluded it, and the County brings it up in this appeal.
Adjudicative facts, it seems, are the facts specific to a particular case and the outcome of the case hinges simply on applying existing rules to the facts presented. Legislative (or constitutional) facts, on the other hand, are facts about society as a whole and the idea leads to adapting laws or rulings on laws based on societal trends, and while there are set rules regulating the admission and presentation, of adjudicative facts, legislative facts can be presented either formally or informally, and can in fact be judge-obtained. The court looks at the “actual truth content” of the legislative facts, and should rely only on the most compelling data. However, the court says the error of the trial court in dis-allowing such evidence is not relevant in its current de-novo review.
D. Similarly Situated People
The County advanced the argument that the plaintiffs were not “similarly” situated to heterosexuals because they could not “procreate naturally” (pg 26) and therefore the laws did not have to be applied uniformly to them, banking on the assertion that equal protection demands that laws treat alike all people who are “‘similarly situated with respect to the legitimate purposes of the law.’” (pg 25) But, the court declares, “‘[S]imilarly situated’ cannot mean simply ‘similar in the possession of the classifying trait.’” In other words, “No two people or groups of people are the same in every way, and nearly every equal protection claim could be run aground onto the shoals of a threshold analysis if the two groups needed to be a mirror image of one another.” (pg 27) So “to truly ensure equality before the law, the equal protection guarantee requires that laws treat all those who are similarly situated with respect to the purposes of the law alike.” (27) The court explains the history of marriage laws in the state, saying that they were to allow individuals in a relationship to combine their financial resources and efforts and energies together. They also serve to “recognize the status of the parties’ committed relationship,” (28) and to change their legal and social status.
The plaintiffs are similarly situated to heterosexual couples, according to the court, because the purpose of the laws was to promote committed relationships and to provide “an institutional basis for defining their fundamental relational rights and responsibilities.” (28)
E. Classification Undertaken in Iowa Code Section 595.2
This section determines whether the statute limiting marriage to one between a man and a woman is classification on the basis of gender or sexual orientation. The district court held it was classification on gender, but the Supreme Court hold it classifies on basis of sexual orientation. “The benefit denied by the marriage statute—the status of civil marriage for same-sex couples—is so “closely correlated with being homosexual” as to make it apparent the law is targeted at gay and lesbian people as a class.”” By requiring that the person you are marrying be of the opposite gender, “purposefully placing civil marriage outside the realistic reach of gay and lesbian individuals”, the statute effectively discriminates on the basis of sexual orientation, not gender.(31)
F. Framework for Determining Appropriate Level of Judicial Scrutiny
Obviously, neither the Iowa or the Supreme Court has determined the level of scrutiny appropriate for a sexual orientation classification, however past cases can provide a way to determine the proper level.
“Classifications based on factors like race, alienage, national origin, sex, or illegitimacy are “so seldom relevant to achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy…” “For these reasons and because such discrimination is unlikely to be soon rectified by legislative means,” laws based on these types of classifications must withstand more intense judicial scrutiny than other types of classifications. ” (33)
But to determine the levels in other cases, the Supreme Court has looked at four factors: “(1) the history of invidious discrimination against the class burdened by the legislation; (2) whether the characteristics that distinguish the class indicate a typical class member’s ability to contribute to society; (3) whether the distinguishing characteristic is “immutable” or beyond the class members’ control; and (4) the political power of the subject class.” (34-35) This is not a solid test, and the court assesses “how each bears on the question of whether the Iowa Constitution requires a more searching scrutiny be applied to the specific classification at issue.” (36) They do conclude that the first two factors have always been present when heightened scrutiny is applied and are considered pre-requisites. The final two are looked at to supplement the determination for heightened scrutiny
G. Determination of Appropriate Level of Scrutiny
1. History of discrimination against gay and lesbian people
The county does not argue that gays and lesbians have been targets of “purposeful and invidious discrimination” (37) because of their sexual orientation, and the court points to several instances of discrimination throughout and up to recent history, such as gays being dismissed from the military, hate crimes, and others. The state legislature has felt the need to remedy these and other past wrongs by including the definition of hate crimes to include those committed against an individual or group because of their sexual orientation and prohibit bullying or harassment in schools based on sexual orientation. These enactments “demonstrate a legislative recognition of the need to remedy historical sexual-orientation based discrimination.” (38)
“In sum, this history of discrimination suggests any legislative burdens placed on lesbian and gay people as a class “are more likely than others to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective.” This observation favors an elevated scrutiny to uncover any such prejudice.” (38-39, citations omitted)
2. Sexual orientation and the ability to contribute to society
First off, the court asserts that when the classification bears no relationship to a person’s ability to contribute to society, heightened scrutiny should be applied. A classification without that relationship is presumed to be based on prejudice and outmoded notions of society. (39) “More importantly, the Iowa legislature has recently declared as the public policy of this state that sexual orientation” has been “recognized in Iowa to be irrelevant to a person’s ability to contribute to society.” (pg 39-40, citing chpt 216 of the Iowa Code)
3. Immutability of sexual orientation
The County advanced this argument fiercely because they contest that the plaintiffs could not prove that sexuality was immutable. “A human trait that defines a group is “immutable” when the trait exists “solely by the accident of birth.”” (42) “Put another way, when a characteristic is immutable, different treatment based on this characteristic seems “all the more invidious and unfair.”” The Iowa Supreme Court said that the courts do not require the class to prove that the trait is absolutely impossible to change. Instead, they say the “immutability “prong of the suspectness inquiry surely is satisfied when . . . the identifying trait is ‘so central to a person’s identity that it would be abhorrent for government to penalize a person for refusing to change [it].’ ”” (44) The court here said that because the orientation “‘may be altered [if at all] only at the expense of significant damage to the individual’s sense of self,’” (44) sexual orientation can properly be deemed an immutable characteristic.
4. Political powerlessness of lesbian and gay people
The County tried to assert this prong of the test was not present because of the numerous legal protections the gay and lesbian people have secured for themselves against discrimination and argues that the group must have nearly a complete lack of political power before the courts elevate the level of scrutiny. However, the court says that complete lack of political power is not a pre-requisite for protection, citing the case that women had some political power when scrutiny was heightened for gender classifications, and the current political power is also not a pre-requisite for judicial protection, as then courts would unlikely be able heightened scrutiny on any current suspect classifications.
Rather, Cady cites, “the touchstone of the analysis should be “whether the group lacks sufficient political strength to bring a prompt end to the prejudice and discrimination through traditional political means.”” (46-47) And, “although equal rights for gays and lesbians have been increasingly recognized in the political arena, the right to civil marriage is a notable exception to this trend. Consequently, the specific right sought in this case has largely lacked any extensive political support and has actually experienced an affirmative backlash.” So it’s concluded that gays and lesbians as a class are no more politically powerful than other groups currently protected and this prong should not count against them in the current test.
5. Classifications based on sexual orientation demand closer scrutiny
In citing the Connecticut case of Kerrington, the court says, “Nonetheless, we conclude that, as a minority group that continues to suffer the enduring effects of centuries of legally sanctioned discrimination, laws singling them out for disparate treatment are subject to heightened judicial scrutiny to ensure that those laws are not the product of such historical prejudice and stereotyping.” (48-49) Therefore, classifications based on sexual orientation must be examined under a heightened level of scrutiny under the Iowa constitution
H. Application of Heightened Scrutiny
Although the Plaintiffs argue for the case to be subjected to the “most searching scrutiny,” the court holds that because the statute cannot survive intermediate scrutiny, the court does not need to and does not determine whether classification on sexual orientation should be subject to strict scrutiny. (49)
1. Intermediate scrutiny standard
As we should have learned from Con Law, (whether we actually have or not is questionable, I realize) ““To withstand intermediate scrutiny, a statutory classification must be substantially related to an important governmental objective.” In applying an intermediate standard to review gender-based classifications, the Supreme Court has stated: “Focusing on the differential treatment or denial of opportunity for which relief is sought, the reviewing court must determine whether the proffered justification is ‘exceedingly persuasive.’ ” …whether the proffered governmental objectives are important and whether the statutory classification is “‘substantially related to the achievement of those objectives.’ ”” (50, citations omitted)
2. Statutory classification: exclusion of gay and lesbian people from civil marriage.
“To identify the statutory classification, [the court must] focus on the “differential treatment or denial of opportunity for which relief is sought.” “Because the relevant focal point is the opportunity sought by the plaintiffs, the issue presented by this lawsuit is whether the state has “exceedingly persuasive” reasons for denying civil marriage to same-sex couples, not whether state sanctioned, heterosexual marriage is constitutional. Thus, the question we must answer is whether excluding gay and lesbian people from civil marriage is substantially related to any important governmental objective.” (51, citations omitted)
3. Governmental objectives
Here the court must determine whether the objectives offered by the County can be deemed important. If they are sufficiently weighty to be deemed important, the next question is whether the objective is fairly advanced by the classification. The five sections following are the County’s main arguments for the classification.
a. Maintaining traditional marriage
The court starts right off by saying this objective has “superficial” appeal. However, “[w]hen a certain tradition is used as both the governmental objective and the classification to further that objective,” the argument becomes circular in that it becomes a question of “whether the classification accomplishes the governmental objective, which objective is to maintain the classification.” (52) After a slightly confusing though explanatory example of this, the court says that in that approach it allows a classification to be maintained for its own sake. It also says that this is not a governmental interest being asserted, just a preservation of tradition argument.
b. Promotion of optimal environment to raise children
With both sides offering up support for their arguments that either “the interests of children are served equally by same-sex parents and opposite-sex parents” or that opposite-sex households are the optimal environment for children, and even though the court admits that the “best interests of the child” is a legitimate governmental interest which the statute may reasonably advance that interest, in this case intermediate scrutiny is used, and under that analysis the government’s goal must be substantial. The court then asks whether the classification is over- or under- inclusive.
“An under-inclusive statute means all people included in the statutory classification have the trait that is relevant to the aim of the statute, but other people with the trait are not included in the classification.…. An over-inclusive statute “imposes a burden upon a wider range of individuals than are included in the class of those” with the trait relevant to the aim of the law.”(55, only 15 more pages left!)
The statute is under-inclusive because it does not include others who would also provide a less-than-optimal parents, such as “child abusers, sexual predators, parents neglecting to provide child support, and violent felons” (56) and thus tends to show that the classification is based in prejudice or overbroad generalizations. “If the marriage statute was truly focused on optimal parenting, many classifications of people would be excluded, not merely gay and lesbian people.” (56) The statute in fact also does not prohibit unmarried same-sex couples from raising children. The court does entertain the notion that this statute is a step towards providing the optimal environment for children, with other remedies to follow, however it ultimately dismisses it as well.
The statute is also over-inclusive because it includes those same-sex couples who do not wish to and will not choose to raise children.
A statute which is at the same time both over- and under-broad statute reveals it is “less about using marriage to achieve an optimal environment for children and more about merely precluding gay and lesbian people from civil marriage,” (58) and therefore only minimally advances the government’s asserted interest, not clearing the hurdle of intermediate scrutiny.
c. Promotion of procreation
The court dismisses this claim quite quickly, mainly because the County failed to answer the question required under the analysis: “whether exclusion of gay and lesbian individuals from the institution of civil marriage will result in more procreation.” (59) While heterosexual marriage does indeed lead to procreation, the County failed to show that with same-sex marriage prohibited, opposite-sex couples would be more likely to have children. (As a chick who doesn’t want kids herself, I have to whole-heartedly agree with this analysis. It’s really quite ridiculous)
d. Promoting stability in opposite-sex relationships
Apparently the County didn’t even provide evidence to support this objective, and the court could find no relationship either. “The stability of opposite-sex relationships is an important governmental interest, but the exclusion of same-sex couples from marriage is not substantially related to that objective.” (60)
e. Conservation of resources
The County’s argument is simple: “couples who are married enjoy numerous governmental benefits, so the state’s fiscal burden associated with civil marriage is reduced if less people are allowed to marry.” (60) However, under this argument, any group of people (African-Americans, illegitimates, aliens, even red-haired individuals) could be restricted from marrying in an equally rational way. (61)
The statute is also shown to be once again over- and under-inclusive with regards to this particular objective (see page 62) and the court holds it does not substantially further this objective.
4. Conclusion
“[T]he sexual-orientation-based classification under the marriage statute does not substantially further any of the objectives.” (63)
I. Religious Opposition to Same-Sex Marriage
The County does not advance this argument (the court rationalizes this silence saying it believes the County understands religion cannot be used to justify a ban on same-sex marriage), though the court brings it up as an argument on its own.
The court recognizes that much of the opposition to same-sex marriage comes from religious groups, seeking to preserve the sanctity and tradition of marriage. Because the Constitution does not permit any branch of government to resolve religious debates, lawyers, judges and courts have specifically avoided making these arguments. This aside, however, the court seeks to calm those opposed to same-sex marriage by asserting that this permitting of civil same-sex marriage does not require a church to change their doctrine. “A religious denomination can still define marriage as a union between a man and a woman, and a marriage ceremony performed by a minister, priest, rabbi, or other person ordained or designated as a leader of the person’s religious faith does not lose its meaning as a sacrament or other religious institution.”(66)
J. Constitutional Infirmity
There are no genuine facts which can support the upholding of the statute under the equal protection clause of the Iowa Constitution.
V. Remedy
“[T]he language in Iowa Code section 595.2 limiting civil marriage to a man and a woman must be stricken from the statute, and the remaining statutory language must be interpreted and applied in a manner allowing gay and lesbian people full access to the institution of civil marriage.” (68)
VI. Conclusion
“The district court properly granted summary judgment to plaintiffs. Iowa Code section 595.2 violates the equal protection provision of the Iowa Constitution. [The] decision becomes effective upon issuance of procedendo.” (69) (“[p]rocedendo shall issue twenty-one days after the opinion is filed unless a petition for rehearing is filed”)
Phew! On to my crim law outline!
~C
