Thursday, 30 April 2009
Wednesday, 29 April 2009
Monday, 27 April 2009
Sunday, 26 April 2009
Saturday, 25 April 2009
Altruistic Surrogacy to be decriminalised in Queensland
The Bligh Government will decriminalise altruistic surrogacy in Queensland, giving hundreds of women and couples the opportunity to have children.
Premier Anna Bligh said the decision of the government today would give Queenslanders who were unable to conceive a child fresh hope of starting a family.
"As a mother, I know the incredible joys parenthood can bring," Ms Bligh said.
"Today's decision means Queenslanders who are not able to conceive a child of their own will now have a legal avenue to do so.
"The decision follows the unanimous recommendation of a Joint Parliamentary Committee last year, to change the current Queensland law which makes all forms of surrogacy illegal.The committee recommended decriminalising the practice of altruistic surrogacy - where a woman agrees to bear a child for another person, for no financial gain or personal benefit.
"Cabinet has provided in principle support for the committee's recommendations, and we have agreed to take the necessary action to see the practice of altruistic surrogacy decriminalised.
"The reality is, for some people, surrogacy is their only chance of starting a family. It is not fair that their genuine efforts to do so could land them in jail, or see them face fines of up to $10,000.
"Queensland is currently the only state in Australia where altruistic surrogacy is considered a crime, punishable by jail.
"This government's decision will ensure Queenslanders now have the chance to consider this option, without fear of a prison sentence."
Attorney-General Cameron Dick said that the decriminalisation of altruistic surrogacy has a range of regulatory implications regarding parentage in Queensland.
"The Government will develop a mechanism to allow the transfer of legal parentage from the birth mother to the child's intending parents in altruistic surrogacy arrangements," Mr Dick said.
"This legal framework to support transfer of legal parentage is an issue that requires close consideration by governments at both the state and federal level."
Mr Dick said the national Standing Committee of Attorneys-General is set to discuss this issue at its next meeting in August this year.
"It is important that we achieve some level of cross-jurisdictional consistency, to ensure no child in Australia is disadvantaged."
He said the committee had also recommended the government conduct a review of the status of children being cared for by same-sex parents.
"This is a complex and sensitive issue that attracts strong and diverse views but the government is committing to undertake a review of the legal status of children being cared for by same-sex parents. "
At the end of the day, we want to ensure that all people who want to be parents have the opportunity to be - and most importantly, that all children are treated equally."
Ms Bligh said commercial surrogacy will remain illegal.
"We do not agree with the practice of people using surrogacy as a means of making money.
"Anyone involved in this practice will continue to face fines of up to $10,000 or a maximum of three years imprisonment.
"The legislative changes to decriminalise altruistic surrogacy will be in place by the end of the year.
Thursday, 23 April 2009
She also indicated that Labor MP's will not have the choice of a conscience vote: they will have to toe the party line, which is to allow this change through.
The Premier's approach is consistent with an all party committee, chaired by former Attorney-General Linda Lavarch, which recommended that altruistic surrogacy in Queensland be permitted..
Queensland currently has the most regressive laws in the country. All surrogacy is banned. Any Queenslander entering into a surrogacy arrangement, whether in Queensland or anywhere else int he world, commits an offence in Queensland.
Wednesday, 22 April 2009
Saturday, 18 April 2009
Thursday, 16 April 2009
Wednesday, 15 April 2009
Tuesday, 14 April 2009
The extraordinary issue about the whole kerfuffle was how quickly and widely the controversy spread on Twitter.
Monday, 13 April 2009
In the last 24 hours, the Twittersphere has exploded with a huge number of posts about #Amazonfail and now, in response to Amazon's claim that it was a "glitch" #glitchmyass .
Here is a blogpost about the anatomy of what went wrong. As a PR disaster, this move by Amazon is right up there.
Here is an article from the LA Times setting out Amazon's position, and the rejoinder.
The reality, just as the LA Times has identified, is that just because a book has a gay or lesbian theme does not mean that it is pornographic. To blanket ban social topics in this way may well amount to engaging in unlawful discrimination.
Sunday, 12 April 2009
For his article, click here.
Saturday, 11 April 2009
For more- see:
Fairfax report here
news.com.au report here
Friday, 10 April 2009
Michael Brown [email address] and Jennifer Groscup [email address], both of the City University of New York concluded:
Crisis centre staff help form the frontline in the fight against domestic violence. Therefore, it is important that we understand any biases they may have when addressing cases of same-sex domestic violence. In this study, 120 crisis center staff members were given a vignette depicting a domestic dispute and asked to complete a questionnaire about their perceptions of the incident and the parties involved. We manipulated the sex of the perpetrator and victim. All other aspects of the vignette remained consistent. Because gay and lesbian relationships are often perceived as less serious than heterosexual relationships, we hypothesized that participants would perceive same-sex domestic violence as such. Consistent with this hypothesis, participants rated same-sex domestic violence scenarios as less serious than opposite-sex domestic violence and as less likely to get worse over time.
For a link to the article, click here.
Monday, 6 April 2009
The Australian judiciary also came under fire in the report for making little reference to international human rights law, including the Covenant. Phil Lynch, director of the International Human Rights Law Resource Centre said this state of affairs was a reflection of the nation's wider shortfallings in the areas of human rights education and policy.
"It is, of course, partly a function of human rights not being a core aspect of legal training and education," said Lynch, "but also in part a function of not having comprehensive national human rights legislation in the way that comparative jurisdictions such as New Zealand, Canada and the United Kingdom do."
For the story, click here.
Sunday, 5 April 2009
Minority groups are often those who may be affected by discrimination- as clearly recognised by the decision of the Iowa Supreme Court last week recognising same sex marriage.
To be involved, click here.
Finally, talking of Iowa, it is expected that same sex marriages there will start from 24 April.
Saturday, 4 April 2009
Shannon Minter, legal director of the National Center for Lesbian Rights, who has led the legal challenge to prop 8 and was lead counsel in the California Marriage Case said:
Today’s historic decision from the heartland of our nation, affirming the
bedrock principle of equality for all, rightly puts a spotlight on the
California Supreme Court, which must rule on the validity of Proposition 8 in
the next 60 days.
The eyes of California and the world are now on the California Supreme
Court, which must determine whether equal protection means equal, and whether
Californians will continue to share that equality in the freedom to marry. We
hope the California Supreme Court will uphold the principle of equality, just as
the Iowa Supreme Court has done.
The Supreme Court of Iowa has struck down[PDF] a law preventing same sex couples from marrying, saying that it is discriminatory under its constitution. The ruling means that there are now 3 US states out of 50 that permit same sex marriage: Massachusetts, its neighbour Connecticut, and now Iowa.
Six same sex couples sought to get married in Polk County of the US midwest state. The county, which ran the marriage registry, refused to allow them, because of a law limiting marriage to between a man and a woman, ie the same limitation enacted in Australia in section 5 of the Marriage Act at the behest of the Howard government.
The six couples took the county to court. They were successful. The county appealed to the Supreme Court.
In the words of the Supreme Court:
As other Iowans have done in the past when faced with the enforcement of a law that prohibits them from engaging in an activity or achieving a status enjoyed by other Iowans, the twelve plaintiffs turned to the courts to challenge the statute. They seek to declare the marriage
statute unconstitutional so they can obtain the array of benefits of marriage enjoyed by heterosexual couples, protect themselves and their children, and demonstrate to one another and to society their mutual commitment.
In a devastating critique, the Iowa Supreme Court rejected all the usual arguments for why same sex marriage should not be allowed, and said in effect that civil unions would be discriminatory.
The case is an excellent snapshot of all the arguments for and against same sex marriages.
The county's arguments
The county came up with a variety of arguments as to why same sex marriages should not be included:
The County offered five primary interests of society in support of the legislature’s exclusive definition of marriage. The first three interests are broadly related to the advancement
of child rearing. Specifically, the objectives centered on promoting procreation, promoting child rearing by a mother and a father within a marriage, and promoting stability in an opposite-sex relationship to raise and nurture children. The fourth interest raised by the County addressed
the conservation of state resources, while the final reason concerned the governmental interest in promoting the concept and integrity of the traditional notion of marriage.
Much of the testimony presented by the County was in the form of opinions by various individuals that same-sex marriage would harm the institution of marriage and also harm children raised in same-sex marriages.
Two college professors testified that a heterosexual marriage is, overall, the optimal forum in which to raise children. A retired pediatrician challenged the accuracy of some of the medical research that concludes there is no significant difference between children raised by same-sex couples and opposite-sex couples.
A clinical psychologist testified sexual orientation is not as defined and stable as race and gender and can change over time. He acknowledged, however, it is difficult to change a person’s sexual orientation, and efforts to do so can be harmful to the person.
The plaintiffs produced evidence to demonstrate sexual orientation and gender have no effect on children raised by same-sex couples, and same-sex couples can raise children as well as opposite-sex couples. They also submitted evidence to show that most scientific research has repudiated the commonly assumed notion that children need opposite-sex parents or
biological parents to grow into well-adjusted adults. Many leading organizations, including the American Academy of Pediatrics, the American Psychiatric Association, the American Psychological Association, the National Association of Social Workers, and the Child Welfare League of America, weighed the available research and supported the conclusion that gay and
lesbian parents are as effective as heterosexual parents in raising children.
For example, the official policy of the American Psychological Association
declares, “There is no scientific evidence that parenting effectiveness is related to parental sexual orientation: Lesbian and gay parents are as likely as heterosexual parents to provide supportive and healthy environments for children.”
Almost every professional group that has studied the issue indicates children are not harmed when raised by same-sex couples, but to the contrary, benefit from them. In Iowa, agencies that license foster parents have found same-sex couples to be good and acceptable parents. It is
estimated that more than 5800 same-sex couples live throughout Iowa, and over one-third of these couples are raising children.
Our responsibility, however, is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time. The framers of the Iowa Constitution knew, as did the drafters of the United States Constitution, that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” and as our constitution “endures, persons in every generation can invoke its principles
in their own search for greater freedom” and equality.
We find that the plaintiffs are similarly situated compared to heterosexual persons. Plaintiffs are in committed and loving relationships, many raising families, just like heterosexual couples. Moreover, official recognition of their status provides an institutional basis for defining their
fundamental relational rights and responsibilities, just as it does for heterosexual couples.
Society benefits, for example, from providing samesex couples a stable framework within which to raise their children and the power to make health care and end-of-life decisions for loved ones, just as it does when that framework is provided for opposite-sex couples. In short, for purposes of Iowa’s marriage laws, which are designed to bring a sense of order to the legal relationships of committed couples and their families in myriad ways, plaintiffs are similarly situated in every important respect, but for their sexual orientation.
It is true the marriage statute does not expressly prohibit gay and lesbian persons from marrying; it does, however, require that if they marry, it must be to someone of the opposite sex. Viewed in the complete context of marriage, including intimacy, civil marriage with a person of the opposite sex is as unappealing to a gay or lesbian person as civil marriage with a person
of the same sex is to a heterosexual. Thus, the right of a gay or lesbian
person under the marriage statute to enter into a civil marriage only with a
person of the opposite sex is no right at all. Under such a law, gay or
lesbian individuals cannot simultaneously fulfill their deeply felt need for a
committed personal relationship, as influenced by their sexual orientation,
and gain the civil status and attendant benefits granted by the statute.
Instead, a gay or lesbian person can only gain the same rights under the
statute as a heterosexual person by negating the very trait that defines gay
and lesbian people as a class—their sexual orientation...
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.” Rather than bearing some relationship
to the burdened class’s ability to contribute to society, such classifications
often reflect irrelevant stereotypes. “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.
Instead of adopting a rigid formula to determine whether certain
legislative classifications warrant more demanding constitutional analysis,
the Supreme Court has looked to four factors....The Supreme Court has considered:
(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 seated prejudice rather than legislative rationality in pursuit of some legitimate objective. Legislation predicated on such prejudice is easily
recognized as incompatible with the constitutional understanding that each
person is to be judged individually and is entitled to equal justice under the
law. Classifications treated as suspect tend to be irrelevant to any proper
legislative goal. Finally, certain groups, indeed largely the same groups, have
historically been “relegated to such a position of political powerlessness as to
command extraordinary protection from the majoritarian political process.”
The experience of our Nation has shown that prejudice may manifest itself in
the treatment of some groups....
Guided by the established framework, we next consider each of the four traditional factors
and assess how each bears on the question of whether the constitution
demands a more searching scrutiny be applied to the sexual-orientationbased
classification in Iowa’s marriage statute.
1. History of discrimination against gay and lesbian people. The first
consideration is whether gay and lesbian people have suffered a history of
purposeful unequal treatment because of their sexual orientation. The
County does not, and could not in good faith, dispute the historical reality
that gay and lesbian people as a group have long been the victim of
purposeful and invidious discrimination because of their sexual orientation.
The long and painful history of discrimination against gay and lesbian
persons is epitomized by the criminalization of homosexual conduct in many
parts of this country until very recently. Additionally, only a few years ago persons
identified as homosexual were dismissed from military service regardless of
past dedication and demonstrated valor. Public employees identified as gay
or lesbian have been thought to pose security risks due to a perceived risk of
extortion resulting from a threat of public exposure. School-yard bullies
have psychologically ground children with apparently gay or lesbian sexual
orientation in the cruel mortar and pestle of school-yard prejudice. At the
same time, lesbian and gay people continue to be frequent victims of hate
The Iowa General Assembly has recognized the need to address
sexual-orientation-based discrimination by including sexual orientation as a
characteristic protected in the Iowa Civil Rights Act, by defining hate crimes
to include certain offenses committed because of the victim’s sexual
orientation, and by prohibiting “harassing or bullying” behavior in schools
based on sexual orientation. These statutory enactments demonstrate a
legislative recognition of the need to remedy historical sexual-orientation based
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.
2. Sexual orientation and the ability to contribute to society. A second
relevant consideration is whether the characteristic at issue—sexual
orientation—is related to the person’s ability to contribute to society.
Heightened scrutiny is applied when the classification bears no relationship
to a person’s ability to contribute to society. The existence of this factor
indicates the classification is likely based on irrelevant stereotypes and
prejudice. A classification unrelated to a person’s ability to perform or contribute to society typically reflects “prejudice and antipathy—a view that those in the burdened class are not as
worthy or deserving as others” or “reflect[s] outmoded notions of the relative
capabilities of persons with the characteristic.” Not surprisingly, none of the same-sex marriage decisions from other state courts around the nation have found a person’s sexual orientation to
be indicative of the person’s general ability to contribute to society.
The County references plaintiffs’ inability to procreate “naturally,” presumably
pointing out each couple’s inability to procreate without assistance. Plaintiffs’ inability to
contribute children to society by procreation through sexual intercourse with each other
does not dictate the outcome of our consideration under this factor. The inquiry into gay
and lesbian people’s ability to contribute to society is a general one, designed to signal
whether such classifications routinely risk elevating stereotype over ability. A person’s
ability to procreate is merely one of many ways in which the person can contribute to
society. While the narrower consideration of plaintiffs’ procreative abilities may be relevant
to whether section 595.2 ultimately passes judicial scrutiny, consideration of those abilities
is less helpful in determining which level of scrutiny to apply. That is, the inability of gay
and lesbian partners to contribute by procreation through sexual intercourse with each
other does not indicate whether legislative classifications based on sexual preference—which
can conceivably occur in any legislative subject matter area—will generally be based on
“stereotyped characteristics not truly indicative of their abilities.”
More importantly, the Iowa legislature has recently declared as
the public policy of this state that sexual orientation is not relevant to a
person’s ability to contribute to a number of societal institutions other than
civil marriage. See Iowa Code § 216.6 (employment); id. § 216.7 (public
accommodations); id. § 216.8 (housing); id. § 216.9 (education); id. § 216.10
(credit practices). Significantly, we do not construe Iowa Code chapter 216
to allow marriage between persons of the same sex, a construction expressly
forbidden in the Iowa Code. The legislature has further indicated the irrelevancy of sexual orientation by mandating sex education in the state’s public schools be free of biases relating to sexual orientation, Iowa Code § 279.50, and by securing personal freedom from violence and
intimidation due to sexual orientation, id. § 729A.1. Likewise, numerous state
administrative regulations indicate sexual orientation is not relevant to a person’s ability to
contribute to society. See Iowa Admin. Code r. 191—48.9 (prohibiting discrimination in
making or solicitation of viatical settlement contracts on basis of sexual orientation); id. r.
281—12 (preamble) (ensuring access to education meeting child’s needs and abilities
regardless of sexual orientation); id. r. 281—12.1 (ordering equal opportunity in educational
programs regardless of sexual orientation); id. r. 281—12.3 (ordering school boards to
consider the potential disparate impact of student responsibility and discipline policies on
students because of students’ sexual orientation); id. r. 281—68.4 (prohibiting
discrimination in admission process to public charter schools based on sexual orientation);
id. r. 282—25.3 (labeling denial of participation in benefits of educational program based on
sexual orientation an “unethical practice”); id. r. 282—26.3 (prohibiting licensed educators
from discriminating based on sexual orientation); id. r. 641—131.7 (allowing public health
department to take numerous adverse actions against emergency medical care personnel
who “practice, condone, or facilitate” discrimination against a patient on the basis of sexual
orientation); id. r. 641—131.8 (allowing public health department to take numerous adverse
actions against training program or continuing education providers who “practice, condone,
or facilitate” discrimination against a patient on the basis of sexual orientation); id. r. 641—
132.10 (allowing denial, probation, revocation, and suspension of authorized emergency
medical service programs that discriminate on the basis of sexual orientation); id. r. 645—
282.2 (prohibiting licensed social workers from discriminating on the basis of sexual
orientation); id. r. 645—363.2 (providing that sexual-orientation-based discrimination by
sign language interpreters or transliterators is unethical); id. r. 657—3.28 (providing that
sexual-orientation–based discrimination by pharmacy technicians is unethical); id. r. 657—
8.11 (same for licensed pharmacies, licensed pharmacists, and registered pharmacistinterns);
id. r. 661—81.2 (prohibiting entrance of information regarding sexual orientation
into Iowa law enforcement intelligence network information system in most circumstances)...
Rather, we merely highlight the reality that chapter 216
and numerous other statutes and regulations demonstrate sexual
orientation is broadly recognized in Iowa to be irrelevant to a person’s ability
to contribute to society. Those statutes and regulations reflect at least
some measure of legislative and executive awareness that discrimination
based on sexual orientation is often predicated on prejudice and stereotype
and further express a desire to remove sexual orientation as an obstacle to
the ability of gay and lesbian people to achieve their full potential. Therefore,
we must scrutinize more closely those classifications that suggest a law may
be based on prejudice and stereotype because laws of that nature are
“incompatible with the constitutional understanding that each person is to
be judged individually and is entitled to equal justice under the law.”
Thus, although we do not interpret chapter 216 to allow same-sex marriage,
we rely on the legislative judgment underlying chapter 216 to determine the
appropriate level of scrutiny when sexual orientation is the basis for a
statutory classification. Based on Iowa statutes and regulations, it is clear
sexual orientation is no longer viewed in Iowa as an impediment to the
ability of a person to contribute to society.
3. Immutability of sexual orientation.
The parties, consistent with the same-sex-marriage scholarship, opinions, and jurisprudence, contest whether sexual orientation is immutable or unresponsive to attempted
The County seizes on this debate to argue the summary judgment
granted by the district court in this case was improper because plaintiffs
could not prove, as a matter of fact, that sexuality is immutable. This
argument, however, essentially limits the constitutional relevance of
mutability to those instances in which the trait defining the burdened class
is absolutely impervious to change.
To evaluate this argument, we must first
consider the rationale for using immutability as a factor.
A human trait that defines a group is “immutable” when the trait
exists “solely by the accident of birth,” or when the person with the trait has no ability to change
it. Immutability is a factor in determining the
appropriate level of scrutiny because the inability of a person to change a
characteristic that is used to justify different treatment makes the
discrimination violative of the rather “ ‘basic concept of our system that legal
burdens should bear some relationship to individual responsibility.’ ”
another way, when a characteristic is immutable, different treatment based
on this characteristic seems “all the more invidious and unfair.” Additionally, immutability can relate to the scope and permanency of the barrier imposed on the group. Temporary barriers tend to be less burdensome on a group and more likely to actually advance a
legitimate governmental interest. Consequently, such barriers normally do
not warrant heightened scrutiny. The permanency of the barrier also depends on the
ability of the individual to change the characteristic responsible for the
discrimination. This aspect of immutability may separate truly victimized
individuals from those who have invited discrimination by changing
themselves so as to be identified with the group. As implied by Justice
Ferren, in dissent, in Dean:
The degree to which an individual controls, or cannot
avoid, the acquisition of the defining trait, and the relative ease
or difficulty with which a trait can be changed, are relevant to
whether a classification is “suspect” or “quasi-suspect” because
this inquiry is one way of asking whether someone, rather than
being victimized, has voluntarily joined a persecuted group and
thereby invited the discrimination.
Importantly, this background reveals courts need not definitively
resolve the nature-versus-nurture debate currently raging over the origin of
sexual orientation in order to decide plaintiffs’ equal protection claims. The
constitutional relevance of the immutability factor is not reserved to those
instances in which the trait defining the burdened class is absolutely
impossible to change... Compare Sherman, 576 N.W.2d at 317 (suggesting
heightened scrutiny is applicable to gender classifications), with Iowa Code
§ 144.23 (providing legal procedure to obtain new birth certificate indicating
change in gender).
That is, we agree with those courts that have held 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].’ ”
(“Because a person’s sexual orientation is
so integral an aspect of one’s identity, it is not appropriate to require a
person to repudiate or change his or her sexual orientation in order to avoid
In this case, the County acknowledges sexual orientation is highly
resistant to change. Additionally, “sexual orientation ‘forms a significant
part of a person’s identity.’ ” Sexual orientation influences the
formation of personal relationships between all people—heterosexual, gay, or
lesbian—to fulfill each person’s fundamental needs for love and attachment.
Accordingly, because sexual orientation is central to personal identity and
“ ‘may be altered [if at all] only at the expense of significant damage to the
individual’s sense of self,’ ” classifications based on sexual orientation “are
no less entitled to consideration as a suspect or quasi-suspect class than
any other group that has been deemed to exhibit an immutable
Sexual orientation is not the type of human trait that allows courts to relax
their standard of review because the barrier is temporary or susceptible to
4. Political powerlessness of lesbian and gay people.
As observed, the
political power of the burdened class has been referenced repeatedly in
Supreme Court cases determining the level of scrutiny to be applied to a
given piece of legislation. Unfortunately, the Court has never defined what it
means to be politically powerless for purposes of this analysis, nor has it
quantified a maximum amount of political power a group may enjoy while
still receiving the protection from unfair discrimination accompanying
heightened scrutiny. The County points to the numerous legal protections
gay and lesbian people have secured against discrimination, and the County
argues those protections demonstrate gay and lesbian people are not a
politically powerless class. The County’s argument implies gay and lesbian
people must be characterized by a complete, or nearly complete, lack of
political power before courts should subject sexual-orientation-based
legislative burdens to a heightened scrutiny.
Notwithstanding the lack of a mathematical equation to guide the
analysis of this factor, a number of helpful general principles related to the
political power of suspect classes can be culled from the Supreme Court’s
cases. First, these cases show absolute political powerlessness is not
necessary to subject legislative burdens on a certain class to heightened
scrutiny. For example, females enjoyed at least some measure of political
power when the Supreme Court first heightened its scrutiny of gender
Second, Supreme Court jurisprudence establishes that a group’s
current political powerlessness is not a prerequisite to enhanced judicial
protection. “[I]f a group’s current political powerlessness [was] a prerequisite
to a characteristic’s being considered a constitutionally suspect basis for
differential treatment, it would be impossible to justify the numerous
decisions that continue to treat sex, race, and religion as suspect
classifications.” Race continues to
be a suspect classification, even though racial minorities
enjoy growing political power. Likewise, gender classifications receive
various forms of heightened scrutiny, even though women continue to gain
While a more in-depth discussion of the history of the political-power
factor is possible, we are satisfied, for the
purpose of analyzing the Iowa Constitution, the political powerlessness
factor of the level-of-scrutiny inquiry does not require a showing of absolute
political powerlessness. Rather, 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.”
It is also important to observe that the political power of gays and
lesbians, while responsible for greater acceptance and decreased
discrimination, has done little to remove barriers to civil marriage. Although
a small number of state legislatures have approved civil unions for gay and
lesbian people without judicial intervention, no legislature has secured the
right to civil marriage for gay and lesbian people without court order.
myriad statutes and regulatory protections against discrimination based on
sexual orientation in such areas as employment, housing, public
accommodations, and education have not only been absent in the area of
marriage, but legislative bodies have taken affirmative steps to shore up the
concept of traditional marriage by specifically excluding gays and lesbians.
Like Iowa, over forty other states have passed statutes or constitutional
amendments to ban same-sex marriages. Thus, 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
We are convinced gay and lesbian people are not so politically powerful
as to overcome the unfair and severe prejudice that history suggests
produces discrimination based on sexual orientation. Gays and lesbians
certainly possess no more political power than women enjoyed four decades
ago when the Supreme Court began subjecting gender-based legislation to
closer scrutiny. Additionally, gay and lesbian people are, as a class,
currently no more powerful than women or members of some racial
minorities. These facts demonstrate, at the least, the political-power factor
does not weigh against heightened judicial scrutiny of sexual-orientationbased
5. Classifications based on sexual orientation demand closer scrutiny.
In summarizing the rationale supporting heightened scrutiny of legislation
classifying on the basis of sexual orientation, it would be difficult to improve
upon the words of the Supreme Court of Connecticut:
Gay persons have been subjected to and stigmatized by a long
history of purposeful and invidious discrimination that
continues to manifest itself in society. The characteristic that
defines the members of this group—attraction to persons of the
same sex—bears no logical relationship to their ability to
perform in society, either in familial relations or otherwise as
productive citizens. Because sexual orientation is such an
essential component of personhood, even if there is some
possibility that a person’s sexual preference can be altered, it
would be wholly unacceptable for the state to require anyone to
do so. Gay persons also represent a distinct minority of the
population. It is true, of course, that gay persons recently have
made significant advances in obtaining equal treatment under
the law. 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.... We
agree with the observations of the Connecticut Supreme Court. The factors
established to guide our determination of the level of scrutiny to utilize in
our examination of the equal protection claim in this case all point to an
elevated level of scrutiny. Accordingly, we hold that legislative classifications
based on sexual orientation must be examined under a heightened level of
scrutiny under the Iowa Constitution.
This approach is, of course, an empty analysis. It permits a
classification to be maintained “ ‘for its own sake.’ ” Moreeover, it can allow discrimination to become acceptable as
tradition and helps to explain how discrimination can exist for such a long
time. If a simple showing that discrimination is traditional satisfies equal
protection, previous successful equal protection challenges of invidious
racial and gender classifications would have failed.
Plaintiffs presented an abundance of evidence and research, confirmed
by our independent research, supporting the proposition that the interests of
children are served equally by same-sex parents and opposite-sex parents.
On the other hand, we acknowledge the existence of reasoned opinions that
dual-gender parenting is the optimal environment for children. These
opinions, while thoughtful and sincere, were largely unsupported by reliable
We begin with the County’s argument that the goal of the same-sex
marriage ban is to ensure children will be raised only in the optimal milieu.
In pursuit of this objective, the statutory exclusion of gay and lesbian people
is both under-inclusive and over-inclusive. The civil marriage statute is
under-inclusive because it does not exclude from marriage other groups of
parents—such as child abusers, sexual predators, parents neglecting to
provide child support, and violent felons—that are undeniably less than
optimal parents. Such under-inclusion tends to demonstrate that the
sexual-orientation-based classification is grounded in prejudice or
“overbroad generalizations about the different talents, capacities, or
preferences” of gay and lesbian people, rather than having a substantial
relationship to some important objective...
(I)t could be argued the same-sex marriage ban
is just one legislative step toward ensuring the optimal environment for
raising children. Under this argument, the governmental objective is slightly
more modest. It seeks to reduce the number of same-sex parent households,
nudging our state a step closer to providing the asserted optimal milieu for
children. Even evaluated in light of this narrower objective, however, the
ban on same-sex marriage is flawed.
The ban on same-sex marriage is substantially over-inclusive because
not all same-sex couples choose to raise children. Yet, the marriage statute
denies civil marriage to all gay and lesbian people in order to discourage the
limited number of same-sex couples who desire to raise children. In doing
so, the legislature includes a consequential number of “individuals within
the statute’s purview who are not afflicted with the evil the statute seeks to
(T)he 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.
If the statute was truly about the best interest of children, some
benefit to children derived from the ban on same-sex civil marriages would
be observable. Yet, the germane analysis does not show how the best
interests of children of gay and lesbian parents, who are denied an
environment supported by the benefits of marriage under the statute, are
served by the ban. Likewise, the exclusion of gays and lesbians from
marriage does not benefit the interests of those children of heterosexual
parents, who are able to enjoy the environment supported by marriage with
or without the inclusion of same-sex couples.
The ban on same-sex civil marriage can only logically be justified as a
means to ensure the asserted optimal environment for raising children if
fewer children will be raised within same-sex relationships or more
children will be raised in dual-gender marriages.
Yet, the same-sex-marriage
ban will accomplish these outcomes only when people in same-sex
relationships choose not to raise children without the benefit of marriage or
when children are adopted by dual-gender couples who would have been
adopted by same-sex couples but for the same-sex civil marriage ban. We
discern no substantial support for this proposition.
These outcomes, at
best, are minimally advanced by the classification. Consequently, a
classification that limits civil marriage to opposite-sex couples is simply not
substantially related to the objective of promoting the optimal environment
The County does not specifically contend the goal of Iowa’s marriage statute is to
deter gay and lesbian couples from having children. Such a claim would raise serious due
process concerns. ... This conclusion suggests stereotype and prejudice, or
some other unarticulated reason, could be present to explain the real
objectives of the statute.
The County also proposes that
government endorsement of traditional civil marriage will result in more
procreation. It points out that procreation is important to the continuation
of the human race, and opposite-sex couples accomplish this objective
because procreation occurs naturally within this group. In contrast, the
County points out, same-sex couples can procreate only through assisted
reproductive techniques, and some same-sex couples may choose not to
While heterosexual marriage does lead to procreation, the
argument by the County fails to address the real issue in our required
analysis of the objective: whether exclusion of gay and lesbian individuals
from the institution of civil marriage will result in more procreation? If
procreation is the true objective, then the proffered classification must work
to achieve that objective.
Conceptually, the promotion of procreation as an objective of marriage
is compatible with the inclusion of gays and lesbians within the definition of
marriage. Gay and lesbian persons are capable of procreation. Thus, the
sole conceivable avenue by which exclusion of gay and lesbian people from
civil marriage could promote more procreation is if the unavailability of civil
marriage for same-sex partners caused homosexual individuals to “become”
heterosexual in order to procreate within the present traditional institution
of civil marriage.
The briefs, the record, our research, and common sense do
not suggest such an outcome. Even if possibly true, the link between
exclusion of gay and lesbian people from marriage and increased procreation
is far too tenuous to withstand heightened scrutiny. Specifically, the statute
is significantly under-inclusive with respect to the objective of increasing
procreation because it does not include a variety of groups that do not
procreate for reasons such as age, physical disability, or choice. In other
words, the classification is not substantially related to the asserted
Promoting stability in opposite-sex relationships. A fourth suggested
rationale supporting the marriage statute is “promoting stability in opposite
sex relationships.” While the institution of civil marriage likely encourages
stability in opposite-sex relationships, we must evaluate whether excluding
gay and lesbian people from civil marriage encourages stability in oppositesex
relationships. The County offers no reasons that it does, and we can
find none. 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.
Conservation of resources. The conservation of state resources is
another objective arguably furthered by excluding gay and lesbian persons
from civil marriage. The argument is based on a simple premise: 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
In the common sense of the word, then, it is “rational” for the
legislature to seek to conserve state resources by limiting the number of
couples allowed to form civil marriages. By way of example, the County
hypothesizes that, due to our laws granting tax benefits to married couples,
the State of Iowa would reap less tax revenue if individual taxpaying gay and
lesbian people were allowed to obtain a civil marriage. Certainly, Iowa’s
marriage statute causes numerous government benefits, including tax
benefits, to be withheld from plaintiffs.
Thus, the ban on same-sex
marriages may conserve some state resources. Excluding any group from
civil marriage—African-Americans, illegitimates, aliens, even red-haired
individuals—would conserve state resources in an equally “rational” way.
Yet, such classifications so obviously offend our society’s collective sense of
equality that courts have not hesitated to provide added protections against
Exclusion of all same-sex couples is an extremely blunt
instrument for conserving state resources through limiting access to civil
marriage. In other words, the exclusion of same-sex couples is overinclusive
because many same-sex couples, if allowed to marry, would not
use more state resources than they currently consume as unmarried
couples. To reference the County’s example, while many heterosexual
couples who have obtained a civil marriage do not file joint tax returns—or
experience any other tax benefit from marital status—many same-sex
couples may not file a joint tax return either. The two classes created by the
statute—opposite-sex couples and same-sex couples—may use the same
amount of state resources. Thus, the two classes are similarly situated for
the purpose of conserving state resources, yet the classes are treated
differently by the law. In this way, sexual orientation is a flawed indicator of
Just as exclusion of same-sex couples from marriage is a blunt
instrument, however, it is also significantly undersized if the true goal is to
conserve state resources. That is to say, the classification is underinclusive.
The goal of conservation of state resources would be equally
served by excluding any similar-sized group from civil marriage. Indeed,
under the County’s logic, more state resources would be conserved by
excluding groups more numerous than Iowa’s estimated 5800 same-sex
couples (for example, persons marrying for a second or subsequent time).
Importantly, there is also no suggestion same-sex couples would use more
state resources if allowed to obtain a civil marriage than heterosexual
couples who obtain a civil marriage.
While unexpressed, religious sentiment most likely motivates many, if
not most, opponents of same-sex civil marriage and perhaps even shapes the
views of those people who may accept gay and lesbian unions but find the
notion of same-sex marriage unsettling.
Consequently, we address the
religious undercurrent propelling the same-sex marriage debate as a means
to fully explain our rationale for rejecting the dual-gender requirement of the
It is quite understandable that religiously motivated opposition to
same-sex civil marriage shapes the basis for legal opposition to same-sex
marriage, even if only indirectly. Religious objections to same-sex marriage
are supported by thousands of years of tradition and biblical
The belief that the “sanctity of marriage” would be
undermined by the inclusion of gay and lesbian couples bears a striking
conceptual resemblance to the expressed secular rationale for maintaining
the tradition of marriage as a union between dual-gender couples, but better
identifies the source of the opposition. Whether expressly or impliedly,
much of society rejects same-sex marriage due to sincere, deeply ingrained—
even fundamental—religious belief.
Yet, such views are not the only religious views of marriage. As
demonstrated by amicus groups, other equally sincere groups and people in
Iowa and around the nation have strong religious views that yield the
This contrast of opinions in our society largely explains the absence of
any religion-based rationale to test the constitutionality of Iowa’s same-sex
marriage ban. Our constitution does not permit any branch of government
to resolve these types of religious debates and entrusts to courts the task of
ensuring government avoids them. ...The statute at issue in this case does not prescribe a definition of marriage
for religious institutions. Instead, the statute declares, “Marriage is a civil
contract” and then regulates that civil contract. Iowa Code § 595A.1. Thus,
in pursuing our task in this case, we proceed as civil judges, far removed
from the theological debate of religious clerics, and focus only on the concept
of civil marriage and the state licensing system that identifies a limited class
of persons entitled to secular rights and benefits associated with civil
We, of course, have a constitutional mandate to protect the free
exercise of religion in Iowa, which includes the freedom of a religious
organization to define marriages it solemnizes as unions between a man and
a woman. This mission to
protect religious freedom is consistent with our task to prevent government
from endorsing any religious view. State government can have no religious
views, either directly or indirectly, expressed through its legislation.
proposition is the essence of the separation of church and state.
As a result, civil marriage must be judged under our constitutional
standards of equal protection and not under religious doctrines or the
religious views of individuals. This approach does not disrespect or
denigrate the religious views of many Iowans who may strongly believe in
marriage as a dual-gender union, but considers, as we must, only the
constitutional rights of all people, as expressed by the promise of equal
protection for all. We are not permitted to do less and would damage our
constitution immeasurably by trying to do more.
These principles require that the state recognize
both opposite-sex and same-sex civil marriage. Religious doctrine and views
contrary to this principle of law are unaffected, and people can continue to
associate with the religion that best reflects their views. 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.
The sanctity of all religious marriages celebrated in the future will have the
same meaning as those celebrated in the past. The only difference is civil
marriage will now take on a new meaning that reflects a more complete
understanding of equal protection of the law. This result is what our
We are firmly convinced the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective. The legislature
has excluded a historically disfavored class of persons from a supremely
important civil institution without a constitutionally sufficient justification.
There is no material fact, genuinely in dispute, that can affect this
We have a constitutional duty to ensure equal protection of the law.
Faithfulness to that duty requires us to hold Iowa’s marriage statute violates the Iowa Constitution. To decide otherwise
would be an abdication of our constitutional duty. If gay and lesbian people
must submit to different treatment without an exceedingly persuasive
justification, they are deprived of the benefits of the principle of equal
protection upon which the rule of law is founded. Iowa Code section 595.2
denies gay and lesbian people the equal protection of the law promised by
the Iowa Constitution.
Because our civil marriage statute fails to provide equal protection of
the law under the Iowa Constitution, we must decide how to best remedy the
Our decision that the statute violates the equal protection clause of the Iowa
[Rejection of Civil Unions]
Iowa Code section 595.2 is unconstitutional because the County has
been unable to identify a constitutionally adequate justification for excluding
plaintiffs from the institution of civil marriage. A new distinction based on
sexual orientation would be equally suspect and difficult to square with the
fundamental principles of equal protection embodied in our constitution.
This record, our independent research, and the appropriate equal protection
analysis do not suggest the existence of a justification for such a legislative
classification that substantially furthers any governmental objective.
Consequently, the 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
View Larger Map
Thursday, 2 April 2009
Sweden is now "doing a Connecticut". Sweden has had civil unions, but is now moving to same sex marriage. In Connecticut, one of the first US states to adopt civil unions, gay rights advocates argued in the state's Supreme Court that civil unions were discriminatory. The Supreme Court agreed.
For more, click here.
Wednesday, 1 April 2009
[Paul Martin is a Brisbane psychologist who underwent "reparative therapy". Now he speaks out about it, and was named by samesame.com.au as one of Australia's leading 25 gays and lesbians for 2008. Paul is commenting on the recent post that 1 in 6 surveyed psychiatrists and pyschologists in the UK have attenpted to assist their clients to change their orientation from gay to straight.]
It is very sad to hear that psychologists and psychiatrists in the UK have attempted to use therapeutic interventions to assist their clients to change from a heterosexual to homosexual orientation. This suggests the possibility that some Australian therapists may also be doing the same.
My personal experience in the past and research regarding ‘reparative therapy’ demonstrates little, if no evidence that people can change their orientation. In fact I witnessed many people who became emotionally tormented and some to the point of suicidality when trying to achieve that which is inherently not possible. I now consider it to be the same as a going to counselling to change your skin colour from white to black.
I understand the conflicts that many therapists must feel when a client is clearly distressed about their homosexuality and seek to change their sexual orientation. There is a natural desire to work with that person so they are relieved of their conflicts, enabling them to live a life of fulfilment. However, to embark on a therapeutic intervention that is widely considered to be ineffective if not damaging is deeply disturbing.
The reasons for a skilled professional to work in this way knowing that the outcome is likely to result in further distress for the client is not clear. One hypothesis could include that there may be some underlying unidentified homophobia within the therapist leading them to believe that re-orientation may be preferred. Evidence strongly suggests that a large proportion of heterosexual and homosexuals harbour some level of homophobia which is reinforced by both communities.
It is my great hope that research like this and GLBTI educational programs for therapists such as ones conducted by Centre for Human Potential may go some way to promote discussion about this topic and prevent unhelpful therapeutic interventions in the future.
*Paul Martin Principal Psychologist Centre for Human Potential