Saturday, 20 November 2010

The legal case for gay marriage

The case for gay marriage has been well expressed by Americans, and in particular American lawmakers, so I am going to wax American for a while. Sorry about the length...

Equality

The case for same sex marriage or gay marriage is really very simple: to quote Jefferson: "All men are created equal." This fundamental notion of equality before the law is one of our society's most basic constructs. If we cannot have equality before the law, then the law falls into disrepute, the rule of law is not followed, and most significantly, discrimination occurs.

Last night it was put to me that gay and lesbian people don't need marriage. That somehow they're not ready for marriage, but if they're going to be granted the right to have their relationship recognised, then why not give them civil unions.

This argument misses the point. Many gay and lesbian people want to get married, or at the least have the choice of marriage. The power of being able to choose one's destiny- isn't that a fundamental concept of our society? How can that truly be given to people when they are not able to choose to marry?

As one of my gay friends put it: "When I was at my sister's wedding I cried. I cried because I realised that I, unlike my sister and her husband, did not have the choice of marriage. I cried because I realised that my government was treating me as a second class citizen."

Don't believe the phony legal arguments

All that is needed to include same sex marriage is getting a majority in Parliament to alter the definition in section 5 of the Marriage Act.
Yesterday  Madonna King on 612ABC Brisbane said to me that another lawyer had suggested that to legislate for same sex marriage would mean a constitutional change. In other words something that is almost impossible to achieve, so why bother. I told Madonna that I didn't see any substance in the argument.

Here's how the argument would go. The Marriage Act was enacted in 1961. It did not then say that marriage was only between a man and a woman. The Act adopted English caselaw as to what constituted marriage, and left silent the gender of those getting married, presumably because it was thought so obvious (and sex between men then was illegal throughout Australia) that it didn't need to be said.

Section 5 of the Marriage Act was amended by the Howard Government (with ALP support) to make explicit this definition, in case gay and lesbian couples sought to have their marriages recognised. The new definition says:

"marriage" means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life. 

The basis that the Commonwealth Parliament has to enact laws about marriage is contained in section 51 of the Commonwealth Constitution:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:...
                     
                   (xxi)  marriage;

There is no definition of "marriage" in the Constitution. The legal argument about why constitutional change is needed goes like this (the Model T argument):

  1. in 1901, at the time of contemplation of federation, the Founding Fathers knew only one type and contemplated one type of marriage ie that set out in the Marriage Act definition;
  2. therefore that is the only type of marriage that the Commonwealth can legislate about.
The problem for the proponents of this argument is that it has two fundamental errors:

  1. The High Court has long recognised about how things change, so it is unlikely that the High Court would adopt this approach; and
  2. If the High Court were to make perfectly clear that the Commonwealth could not make laws about same sex marriage, then each of the States could. This would mean that we could have potentially 9 systems of marriage for  people in Australia: if you're in a straight relationship- you're under the Marriage Act; if you're gay or lesbian - one for each State and Territory (as the Commonwealth could legislate for same sex marriage in the ACT, NT and Norfolk Island, relying on the territories power under the constitution).
The likely High Court approach

The High Court will likely legitimise an amendment to the Marriage Act to allow same sex marriage. The alternative is potential chaos- which is exactly what the Founding Fathers wished to avoid.

If the legal argument were to follow that because same sex marriage were not contemplated by the Founding Fathers, and therefore cannot be legislated by the Commonwealth Parliament, then the whole basis of the regulation of TV, radio and the internet would likely fail. Currently these are largely regulated by the Commonwealth. The Commonwealth Parliament's ability to legislate is largely reliant on this section of section 51 of the Commonwealth Constitution:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
                     
                     (v)  postal, telegraphic, telephonic, and other like services;

The High Court recognised with the birth of radio that this extended to radio (although it was not invented in 1901), and this provision has extended with technology since.

The argument against civil unions

The argument was best put by the Connecticut Supreme Court. Connecticut was one of the first US States to legislate for civil unions. Gay and lesbians who wanted to marry challenged the law, saying that they wanted to marry, and that a civil unions denied them this fundamental right. The Supreme Court agreed with them. This is what it had to say:

The defendants’ motion for summary judgment, they asserted that the plaintiffs had failed to demonstrate that they have suffered any harm as a result of the statutory bar against same sex marriage because, under the civil union law, gay persons are entitled to all of the rights that married couples enjoy.
The defendants also maintained that this state’s ban on same sex marriage does not deprive the plaintiffs of a
fundamental right because, since ancient times, marriage has been understood to be the union of a man
and a woman, and only such rights that are ‘‘deeply rooted in this [n]ation’s history and tradition . . . and
implicit in the concept of ordered liberty’’ are deemed to be fundamental. .... The defendants contended that, in light of the universally understood definition of marriage as the union of a man and a woman, the right that the plaintiffs were asserting, namely, the right to marry ‘‘any person of one’s choosing,’’ is not a fundamental right.
The defendants also asserted that our statutory scheme does not discriminate on the basis of sex because, inter alia, it does not single out men or women  as a class for disparate treatment, the touchstone of
any sex discrimination claim. Those laws also do not discriminate on the basis of sexual orientation, the
defendants maintained, because gay persons are not prohibited from marrying. According to the defendants,
our laws are facially neutral because they treat homosexual and heterosexual persons alike by providing that
anyone who wishes to marry may do so with a person of the opposite sex....

The plaintiffs challenge the trial court’s conclusion
that the distinction between marriage and civil unions
is merely one of nomenclature. They contend that marriage
is not simply a term denominating a bundle of
legal rights. Rather, they contend that it is an institution
of unique and enduring importance in our society, one
that carries with it a special status. The plaintiffs therefore
contend that their claim of unequal treatment cannot
be dismissed solely because same sex couples who
enter into a civil union enjoy the same rights under
state law as married couples. The plaintiffs also claim
that we must consider the legislature’s decision to create
civil unions for same sex couples in the context of
the historical condemnation and discrimination that gay
persons have suffered.... We agree with the plaintiffs
that, despite the legislature’s recent establishment of
civil unions, the restriction of marriage to opposite sex
couples implicates the constitutional rights of gay persons
who wish to marry a person of the same sex....
A cognizable constitutional claim arises whenever
the government singles out a group for differential treatment.
The legislature has subjected gay persons to precisely
that kind of differential treatment by creating a
separate legal classification for same sex couples who,
like opposite sex couples, wish to have their relationship
recognized under the law. Put differently, the civil
union law entitles same sex couples to all of the same
rights as married couples except one, that is, the freedom
to marry, a right that ‘‘has long been recognized
as one of the vital personal rights essential to the orderly
pursuit of happiness by free men [and women]’’ and
‘‘fundamental to our very existence and survival.’’... Indeed, marriage has been characterized
as ‘‘intimate to the degree of being sacred’’; ... (‘‘many
religions recognize marriage as having spiritual significance’’);
and ‘‘an institution more basic in our civilization
than any other.’’ ... Marriage,
therefore, is not merely shorthand for a discrete set of
legal rights and responsibilities but is ‘‘one of the most
fundamental of human relationships . . . .’’ ... ‘‘Marriage
. . . bestows enormous private and social advantages
on those who choose to marry. Civil marriage is at once
a deeply personal commitment to another human being
and a highly public celebration of the ideals of mutuality,
companionship, intimacy, fidelity, and family. . . .
Because it fulfills yearnings for security, safe haven,
and connection that express our common humanity,
civil marriage is an esteemed institution . . . .’’ ...
Especially in light of the long and undisputed history
of invidious discrimination that gay persons have suffered;
...we cannot discount
the plaintiffs’ assertion that the legislature, in establishing
a statutory scheme consigning same sex couples to
civil unions, has relegated them to an inferior status,
in essence, declaring them to be unworthy of the institution
of marriage. In other words, ‘‘[b]y excluding samesex
couples from civil marriage, the [s]tate declares
that it is legitimate to differentiate between their commitments
and the commitments of heterosexual couples.
Ultimately, the message is that what same-sex
couples have is not as important or as significant as
‘real’ marriage, that such lesser relationships cannot
have the name of marriage
.’’...
(‘‘[t]he current statutes—by drawing a distinction
between the name assigned to the family relationship
available to opposite-sex couples and the name
assigned to the family relationship available to samesex
couples, and by reserving the historic and highly
respected designation of marriage exclusively to opposite-
sex couples while offering same-sex couples only
the new and unfamiliar designation of domestic partnership—
pose a serious risk of denying the official family
relationship of same-sex couples the equal dignity and
respect that is a core element of the constitutional right
to marry’’); ... (‘‘[t]he dissimilitude
between the terms ‘civil marriage’ and ‘civil union’
is not innocuous; it is a considered choice of language
that reflects a demonstrable assigning of same-sex,
largely homosexual, couples to second-class status’’).
Although the legislature has determined that same sex
couples are entitled to ‘‘all the same benefits, protections
and responsibilities . . . [that] are granted to
spouses in a marriage’’; ...
the legislature nonetheless created an entirely separate
and distinct legal entity for same sex couples even
though it readily could have made those same rights
available to same sex couples by permitting them to
marry. In view of the exalted status of marriage in
our society, it is hardly surprising that civil unions are
perceived to be inferior to marriage. We therefore agree
with the plaintiffs that ‘‘[m]aintaining a second-class
citizen status for same-sex couples by excluding them
from the institution of civil marriage is the constitutional
infirmity at issue.
’’...

Although marriage and
civil unions do embody the same legal rights under
our law, they are by no means ‘‘equal.’’ As we have
explained, the former is an institution of transcendent
historical, cultural and social significance, whereas the
latter most surely is not. Even though the classifications
created under our statutory scheme result in a type of
differential treatment that generally may be characterized
as symbolic or intangible, this court correctly has
stated that such treatment nevertheless ‘‘is every bit as
restrictive as naked exclusions’’; ... because it is no less real than more
tangible forms of discrimination
, at least when, as in
the present case, the statute singles out a group that
historically has been the object of scorn, intolerance,
ridicule or worse.
We do not doubt that the civil union law was designed
to benefit same sex couples by providing them with
legal rights that they previously did not have. If, however,
the intended effect of a law is to treat politically
unpopular or historically disfavored minorities differently
from persons in the majority or favored class,
that law cannot evade constitutional review under the
separate but equal doctrine. ...In such circumstances, the very existence
of the classification gives credence to the perception
that separate treatment is warranted for the same
illegitimate reasons that gave rise to the past discrimination
in the first place.
Despite the truly laudable effort
of the legislature in equalizing the legal rights afforded
same sex and opposite sex couples, there is no doubt
that civil unions enjoy a lesser status in our society
than marriage.
All the other dodgy reasons why marriage is said to exclude same sex people

All the other arguments were debunked by the Iowa Supreme Court. In Iowa several gay and lesbian couples successfully challenged the law that prevented them from getting married. This is what the Iowa Supreme Court had to say:

Unlike opposite-sex couples in Iowa, same-sex couples are not
permitted to marry in Iowa. The Iowa legislature amended the marriage
statute in 1998 to define marriage as a union between only a man and a
woman.2 Despite this law, the six same-sex couples in this litigation asked
the Polk County recorder to issue marriage licenses to them. The recorder,
following the law, refused to issue the licenses, and the six couples have
been unable to be married in this state. Except for the statutory restriction
that defines marriage as a union between a man and a woman, the twelve
plaintiffs met the legal requirements to marry in Iowa....

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....
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. .... 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....
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
crimes. See Criminal Justice Information Servs. Div., FBI, Hate Crime
Statistics 2007, http://www.fbi.gov/ucr/hc2007/victims.htm (according to
FBI-collected data, the only hate crimes occurring more frequently than
sexual-orientation-motivated hate crimes are crimes based on race or
religious bias)....
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.”...
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.22 The
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....

[The County's arguments against same sex marriage debunked]:

a. Maintaining traditional marriage. First, the County argues the
same-sex marriage ban promotes the “integrity of traditional marriage” by
“maintaining the historical and traditional marriage norm ([as] one between
a man and a woman).” This argument is straightforward and has superficial
appeal. A specific tradition sought to be maintained cannot be an important
governmental objective for equal protection purposes, however, when the
tradition is nothing more than the historical classification currently
expressed in the statute being challenged. When a certain tradition is used
as both the governmental objective and the classification to further that
objective, the equal protection analysis is transformed into the circular
question of whether the classification accomplishes the governmental
objective, which objective is to maintain the classification. In other words,
the equal protection clause is converted into a “ ‘barren form of words’ ”
when “ ‘discrimination . . . is made an end in itself.’ ” Tussman & tenBroek,
37 Cal. L. Rev. at 357 (quoting Truax v. Raich, 239 U.S. 33, 41, 36 S. Ct. 7,
10, 60 L. Ed. 131, 135 (1915)).
This precise situation is presented by the County’s claim that the
statute in this case exists to preserve the traditional understanding of
marriage. The governmental objective identified by the County—to maintain
the traditional understanding of marriage—is simply another way of saying
the governmental objective is to limit civil marriage to opposite-sex couples.
Opposite-sex marriage, however, is the classification made under the
statute, and this classification must comply with our principles of equal
protection. Thus, the use of traditional marriage as both the governmental
objective and the classification of the statute transforms the equal protection
analysis into the question of whether restricting marriage to opposite-sex
couples accomplishes the governmental objective of maintaining opposite-sex
marriage.
This approach is, of course, an empty analysis. It permits a
classification to be maintained “ ‘for its own sake.’ ” Kerrigan, 957 A.2d at
478 (quoting Romer, 517 U.S. at 635, 116 S. Ct. at 1629, 134 L. Ed. 2d at
868). Moreover, 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. Consequently, equal
protection demands that “ ‘the classification ([that is], the exclusion of gay
[persons] from civil marriage) must advance a state interest that is separate
from the classification itself.’ ” Id. (quoting Hernandez v. Robles, 855 N.E.2d
1, 33 (N.Y. 2006) (Kaye, C.J., dissenting)); see also Romer, 517 U.S. at 635,
116 S. Ct. at 1629, 134 L. Ed. 2d at 868 (rejecting “classification of persons
undertaken for its own sake”).
“[W]hen tradition is offered to justify preserving a statutory scheme
that has been challenged on equal protection grounds, we must determine
whether the reasons underlying that tradition are sufficient to satisfy
constitutional requirements.” Kerrigan, 957 A.2d at 478–79 (emphasis
added). Thus, we must analyze the legislature’s objective in maintaining the
traditional classification being challenged.
The reasons underlying traditional marriage may include the other
objectives asserted by the County, objectives we will separately address in
this decision. However, some underlying reason other than the preservation
of tradition must be identified. Because the County offers no particular
governmental reason underlying the tradition of limiting civil marriage to
heterosexual couples, we press forward to consider other plausible reasons
for the legislative classification.

b. Promotion of optimal environment to raise children. Another
governmental objective proffered by the County is the promotion of “child
rearing by a father and a mother in a marital relationship which social
scientists say with confidence is the optimal milieu for child rearing.” This
objective implicates the broader governmental interest to promote the best
interests of children.
The “best interests of children” is, undeniably, an
important governmental objective. Yet, we first examine the underlying
premise proffered by the County that the optimal environment for children is
to be raised within a marriage of both a mother and a father.
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
scientific studies.
Even assuming there may be a rational basis at this time to believe the
legislative classification advances a legitimate government interest, this
assumed fact would not be sufficient to survive the equal protection analysis
applicable in this case. In order to ensure this classification based on sexual
orientation is not borne of prejudice and stereotype, intermediate scrutiny
demands a closer relationship between the legislative classification and the
purpose of the classification than mere rationality. Under intermediate
scrutiny, the relationship between the government’s goal and the
classification employed to further that goal must be “substantial.” Clark,
486 U.S. at 461, 108 S. Ct. at 1914, 100 L. Ed. 2d at 472. In order to
evaluate that relationship, it is helpful to consider whether the legislation is
over-inclusive or under-inclusive. See RACI II, 675 N.W.2d at 10
(considering under-inclusion and over-inclusion even in the rational basis
context)....
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. See Virginia, 518 U.S. at 533, 116
S. Ct. at 2275, 135 L. Ed. 2d at 751 (rejecting use of overbroad
generalizations to classify). If the marriage statute was truly focused on
optimal parenting, many classifications of people would be excluded, not
merely gay and lesbian people.
Of course, “[r]eform may take one step at a time, addressing itself to
the phase of the problem which seems most acute to the legislative mind.”
Knepper v. Monticello State Bank, 450 N.W.2d 833, 837 (Iowa 1990) (citing
Williamson v. Lee Optical of Okla., 348 U.S. 483, 489, 75 S. Ct. 461, 465, 99
L. Ed. 563, 573 (1955)). Thus, “[t]he legislature may select one phase of one
field and apply a remedy there, neglecting the others.” Williamson, 348 U.S.
at 489, 75 S. Ct. at 465, 99 L. Ed. at 573. While a statute does not
automatically violate equal protection merely by being under-inclusive, the
degree of under-inclusion nonetheless indicates the substantiality of the
relationship between the legislative means and end.
As applied to this case, it 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
remedy.” Conaway, 932 A.2d at 649 (Raker, J., concurring in part and
dissenting).
At the same time, the exclusion of gay and lesbian people from
marriage is under-inclusive, even in relation to the narrower goal of
improving child rearing by limiting same-sex parenting. Quite obviously, the
statute does not prohibit same-sex couples from raising children. Same-sex
couples currently raise children in Iowa, even while being excluded from civil
marriage, and such couples will undoubtedly continue to do so.
Recognition
of this under-inclusion puts in perspective just how minimally the same-sex
marriage ban actually advances the purported legislative goal. A law so
simultaneously over-inclusive and under-inclusive is not substantially
related to the government’s objective. In the end, a careful analysis of the over- and under-inclusiveness of the 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
to raise children. This conclusion suggests stereotype and prejudice, or
some other unarticulated reason, could be present to explain the real
objectives of the statute.
c. Promotion of procreation. 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
procreate.
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
legislative purpose.
d. 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 opposite sex
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.
e. 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
marry. 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.28 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
such inequalities.... 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
resource usage.
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.
Such over-inclusion and under-inclusion demonstrates the trait of
sexual orientation is a poor proxy for regulating aspiring spouses’ usage of
state resources. This tenuous relationship between the classification and its
purpose demonstrates many people who are similarly situated with respect
to the purpose of the law are treated differently. As a result, the sexualorientation-
based classification does not substantially further the suggested
governmental interest, as required by intermediate scrutiny.
4. Conclusion. Having examined each proffered governmental
objective through the appropriate lens of intermediate scrutiny, we conclude
the sexual-orientation-based classification under the marriage statute does
not substantially further any of the objectives. While the objectives asserted
may be important (and many undoubtedly are important), none are
furthered in a substantial way by the exclusion of same-sex couples from
civil marriage. Our equal protection clause requires more than has been
offered to justify the continued existence of the same-sex marriage ban
under the statute.
I. Religious Opposition to Same-Sex Marriage. Now that we have
addressed and rejected each specific interest advanced by the County to
justify the classification drawn under the statute, we consider the reason for
the exclusion of gay and lesbian couples from civil marriage left unspoken by
the County: religious opposition to same-sex marriage.
The County’s silence
reflects, we believe, its understanding this reason cannot, under our Iowa
Constitution, be used to justify a ban on same-sex 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
marriage statute.
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
interpretation. 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
opposite conclusion.
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. ...
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
marriage.

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