Gay marriage in Iowa

As you might've already heard, the Iowa Supreme Court has legalized gay marriage. A good day for civil rights.

i was discussing this with a friend just a few mins ago. and i couldn't help cracking the joke that i wasn't convinced that they knew it was homosexual marriage. naturally they would scratch their heads at a ban on "happy marriages," thought the cynic in me...

don't get me wrong, ANY state that wants to admit that it's wrong and hurtful (and rediculous) to deny marriage rights to gay couples is ok in my book. it's just a bit unexpected from the midwest.

but, naturally, the cynic in me has a tendency to forget that Iowa is one of those most terrifying of things: a swing state! this isn't like my home state of Tennessee, where even when one of the candidates for president is FROM Tennessee, we can't vote democrat.

good on you, Iowa. now start spreading your influence!

Note of dissent. I agree with the result, but not the method.

Vermont is doing this the right way. The democratic process gives something like this legitimacy and long-term support. Having judges decide a major issue against popular opinion—62%/32% in a poll I just found—guarantees long-term acrimony and threatens to backfire.

That's how it went in California. Judicial action produced a backlash, and now what would have taken a simple-majority constitutional amendment now requires an *overwhelming-majority* constitutional amendment.

That's tactics, but I also think it applies on the level of ideas. The Constitution does not require every good thing, or forbid every bad. It means something definite, and that's a good thing. It's very odd to me to think that the Constitution, which virtually nobody thought would require gay-marriage for 200 years, now suddenly requires it. I want my Constitution to mean something fixed, or I don't want one at all. If you think the Constitution should change—apart from the ways it allows change—what's the prevent seven judges deciding the constitution now means I can be tortured, denied trial and thrown in jail for my opinions?

Someone should bring up slavery now, right? The difference is that we passed a constitutional amendment—a bunch of them—ending that terrible institution. You could argue that the constitution already prohibited it—some argued just that. Or take the right to vote. If courts had given women the vote, they might have gotten that right five years earlier—and be perpetually in fear of a change in court composition taking that right away.

I disagree, Tim.

If the judicial branch of the government in the US is good for anything, it's good for guarding minority rights against the tyranny of the majority. You set up a straw-man of "seven judges" deciding that you can be arbitrarily stripped of your rights, but for gay people the reality is that a majority of the people has decided we can be arbitrarily stripped of our rights, and only the judiciary is there to say "No, this document says you cannot do that." (It's not changing the constitution, it's interpreting it differently.)

I see your thirteenth amendment and raise you Brown vs. Board and Loving vs. Virginia. Neither of those involved constitutional amendments, and both were extremely unpopular at the time.

I think you can have a hybrid approach. The Civil Rights era shows that, I'd say. If Civil Rights had only been a bunch of court cases, I think things would not have gone as well at all. But they weren't—you had bill after bill supporting it on the other side. Where's the Johnson here, bullying and arguing the case, moving the country bit-by-bit? Obama is against gay marriage, and indeed, unlike his presidential rival, grounds that opposition in an explicitly religious context.

Where do you draw the line on interpretation? Seriously. Draw me the far edge, where it would slide into rewriting.

Also: You replied on right-and-wrong, which is fine, but what about tactics? The court-first-public-later strategy produced a California less likely to legalize gay marriage than almost any other state.

5>

I didn't respond tactically because that's a much more difficult question to answer. I think a lot of cases have been ill-chosen, but there's not a single overriding organization making these determinations -- while Lambda Legal can pick which ones to represent, they all start with people making a stand where they actually happen to live. Waiting to be popular is going to be a damn long wait. It may be right intellectually, but it's hard to tell that to someone who just wants to be able to marry while their parents are still alive.

And, as you probably know, California did try the legislative route first -- a bill legalizing same-sex marriage passed both houses of the state legislature, and was vetoed by the governor, who said "This should be a matter for the courts to decide". At that point, realistically, the judicial approach was the only one left. Personally I think the backlash issue (about which you're right) is mostly the fault of the reliance of the western states on initiatives and referenda. Massachusetts was a court ruling rather than a legislative approach, too, and marriage has stood there because amending the state constitution is harder than it is in California. (Iowa's system for amending the state constitution is more like Massachusetts' than California's -- by the time one could get to the public there's more time for people to get used to the idea. A big part of why Prop 8 passed in California is that there just wasn't enough time before the election for people to see that the sky wasn't going to fall.)

One note on MA, though. I think the latest polls show actual popular support. The court cased moved people to some degree. I think it can do that, just not a lot.

> timspalding

i think it's very difficult to even compare the civil rights movement to the gay marriage debate. the problem here is that there were physical ways in which popular opinion could be brought to show support for civil rights. for example, Rosa Parks sitting at the front of the bus, the Freedom Riders, sit-ins, what have you. the public had to actually confront those images and rationalize them one way or the other. when you saw black children and women being beaten because they used the white water fountain or refused to leave a whites-only restaurant, you had to make a decision whether that was ok or not.

those options are not available in the gay marriage debate. how exactly do you "act out" (non-violently of course) against the ban? you can't plant yourself in the court house and wait to get a marriage license. and for the most part (thank heaven), the anti-marriage crowd is much happier to just kind of ignore the movement altogether until they feel they are seriously threatened. i think the only public movement that could bring pressure on public opinion and therefore policy would be if every one of us that supported gay marriage refused to marry until the ban was lifted. i just don't see that happening.

too many people don't even see this as a civil rights issue. they see it as a religious right that happens to be regulated by the government (where's the seperation of church and state on that one?). therefore they will never be able to seperate the religious idea of marriage from the social institution, and public opinion will never be swayed.

but to touch on your mention of court cases, the best example i would put forward is Loving v. Virginia, which lorax mentioned. that is the ONLY case i can even think of that would be comparable. and it took that court decision to repeal the anti-miscegnation law that stopped interracial marriage. that was a prime example of the judicial system saying, "wait, this isn't right. it doesn't even make sense that it's an argument." and they stood by their decision. public opinion was NEVER able to over-turn that.

http://en.wikipedia.org/wiki/Loving_v._Virginia

#4, 6: It's important not to confuse the accepted role of the judiciary with any basis for effectiveness. In this system, while it is the supposed role of the judiciary to decide such matters, that doesn't mean it will go down well. True, the legislative option in California didn't work out. But the judicial path fared far worse. It even got to the point that blacks were being accused of having tipped the balance in favor of the heterosexual definition of marriage amendment. Gays and blacks would have no other reason to be at eachother's throats like that if it weren't for the fact that Americans, by and large, don't believe in the separation of marriage and state.

>8 leahbird:

I think that's a very interesting point. What you can "do" is different. Even so, I don't think the Civil Rights movement was mostly about actions you could do so "directly" as bus-sitting. The major movers were marches, which of course can be done for almost anything. They differed to some degree in that some civil rights marches were met with force—which does make things starker. Still, however marches may stick in the collective mind (they have built-in images), the most significant movement on civil rights was the result of persuasion, legislation and court decisions. Sit-ins and such played a role, but so did speeches, sermons, electioneering and such. Still, your point is well taken. There are many ways in which they are different, and that's an interesting one.

Still, I'm not sure that the availability of direct protest should affect either the tactics or the rights-and-wrongs of a court case. I think pushing the legal side ahead of the popular/democratic side has clear tactical risks. I think California demonstrates that clearly. We will see whether Iowa voters are willing to follow their clear support for laws against gay marriage with a state-constitutional amendment too. I think we all need to learn more about that process, and its chance of success. (Unless someone here is already an expert?)

Beyond tactics, I think it's dangerous to everything in the Constitution when it can change meaning so radically—embracing a concept that would have been laughed out of court for 9/10 of the Constitution's history. I'm sorry, but that's just how it is. No matter how good the result, I don't want results that suggest such instability in the law. As said before, if Civil Rights rested mostly on court cases, it would not have gone as far and would have taken a long, long time to get digested politically. I think that's basically the problem with Roe v. Wade too. It's been a festering sore in American politics for decades now because it was lifted out of the political process entirely. You may like the result, but the precedent is bad. And if conservatives ever overturn it, you can be sure that the next step will be to convince judges it should be banned by law, not vote.

To the above, I don't think the primary purpose of the Constitution is to protect minorities, the defenseless, etc. The primary purpose is to protect what is written in it. In so many areas, that results in such a protection. But it's a result of the text, not a replacement for it. If you confuse the two, you run the risk of approving of a jurisprudence that can, with a change of judicial power, have very ill effects. I don't want my right to free expression, jury trial, assembly and such "interpreted" away. Protecting the defenseless is, after all, how we Federal rules on internet pornography, etc.

And, since I'm throwing bombs, why exactly is gay marriage required by the Constitution but polygamous marriage not? Equal protection in twos, but not threes?

> True, the legislative option in California didn't work out. But the judicial path fared far worse.

To add to your point, the legislative action can be done again and again until you win. The judicial path resulted in a backlash that made the judicial path virtually impossible.

A couple points:
The constitution of the USA – and, by extension, most if not all state constitutions – is meant to explain and regulate the relationship between the state and its people, not between the people themselves. (Robin Lakoff, here, explains it much more eloquently than I could.) So, in my understanding, it's a perfectly legitimate interpretation of the constitution's equal protection clause to rule that marriage laws should be applied to everyone equally, regardless of gender. To answer Tim's point, changing those laws to include more than two persons is no longer within the realm of equal protection, and by all rights should come under the legislative branch. It's not a constitutional issue.

The courts are in place to rule on the interpretation and constitutionality of laws. They, and not the population as a whole, are empowered to do that because what's right, or good for society as a whole, may not be what's in the personal best interest of a majority of voters. So, while the constitution is not exactly meant to protect the rights of minorities (as Tim points out), the courts very clearly are put in place as a safeguard against the tyranny of the majority (and in theory this includes majority-rule by proxy, i.e. through the democratically elected executive branch.)

It's certainly not a fail-safe system, but it sure beats having issues of constitutional interpretation and minority rights decided by a public vote. As Therese Stewart said in the case before the California Supreme Court, "a guarantee of equality that is subject to exceptions made by a majority is no guarantee at all."

So, for example, the right of free assembly is not the right to gather in groups, but the right for an individual to go someplace where a group might be?

What if a particular form of free expression requires thee people? Is the duet constitutionally protected, but the trio not?

Now, I'm NOT arguing this is the right thing to do. Maybe it's not. Maybe justice requires homosexuals who love each other to be validated by the state, inherit property and visit each other in hospitals when sick, but Mormons who love each other to be dissed by the state, unable to hold clear title to their property and sit in the waiting room while their wife dies. (Justice is a peculiar thing, and probably not friendly to rural, religious people who tend to vote for Republicans.) The issue is not what is right here, the issue is how one decides that the constitution so completely decides the issue that it compels a state to offer gay marriage, against state law, state feeling and federal law—but so completely nulls polygamous marriage that it is not even deserving of "civil union" status.*

As for the courts being in place to protect the minority, as said, there's rough truth to that. But again, it's just an analysis, not the actual mission. The courts are there to enforce justice, as codified in laws and similar instruments. One could express anything in the language of minority/majority. Putting criminals in prison is, after all, an attack on a "minority" that can't get its way though legislation—the minority of people who commit crimes!

Does anyone know how much of the decision rests on Iowa equal-protection concepts, and how much on Federal ones? To the extent it rests on the latter, it's open to higher review. To the extent it rests on the former, it's quite possible the text and historical development is quite different from the federal one.

*It isn't in the Constitution, but it is well known that Utah's admission was contingent on them passing an anti-polygamy provision into their constitution. How would you feel if the Congress forced anti-gay constitutional amendments on Puerto Rico or DC in order to become a state? Maybe the Congress can start withholding federal highway funds to pro-gay states.

Tim, in these posts you've made many arguments, and I confess to lacking the initiative to address them all. But a few thoughts:

Sure, I agree that it's better, when possible, to change by increments when there is broad consensus. Revolutionary change is rarely lasting or effective.

But let's not hyperventitlate here. This isn't revolution. I don't look forward to the acrimony that will arise surrounding this ruling, but it is not as radical, or as recent, as you seem to suggest. (Actually, one can make a case that it is consistent with an approach of incremental change.)

The first application for same sex marriage in Polk County (where this case originated) occurred in the 70s.

Your statement in >3 timspalding:, "I want my Constitution to mean something fixed, or I don't want one at all", leaves me perplexed. Interpretation is inevitable for such a short document, and taking account the changes in history. It is not Holy Writ. I infer you know a thing or two about biblical hermeneutics--correct me if I'm wrong, but it almost sounds as if you're suggesting such a standard. And even believers in literal inspiration often disagree, despite sharing the same premise about how to approach text and interpretation.

The "bomb" about polygamy in >10 timspalding: is maybe less explosive than you suggest. Theoretically, sure, the day could come when that question is broached. There, I wrote it, and I'm still sitting here, and not even scorched like some Warner Brothers cartoon character. But our society is not at present likely to find the issue as politically urgent. Yes, that is a criterion--since we're not dealing with an unambiguous text in an unchanging culture. Culture changes. Sometimes for the better, sometimes for worse, sometimes we'll disagree about which is which. But fixity is a chimera.

As for your question in >13 timspalding:, about how much the decision rest on Iowa equal-protection concepts, or Federal, to my understanding, it is all about the Iowa constitution. The court decided the law didn't jibe with the Iowa text. I have read that it is similar to the U.S. constitution in this regard, but I haven't compared them side by side. But this means, I think, that recourse for those who are unhappy with this decision would be to amend the Iowa constitution. It's not a federal issue.

A footnote: the court was unanimous, and the judge who wrote up the ruling was appointed by a Republican governor.

It happens that I'm from Iowa, and I still vote there. It also happens that I'm straight and already married, but I feel heartened today that the reason I won't ask you to marry me, Tim, is because I'm an individual with civil freedoms who can make that choice on his own, and not because the state has told me to. And now you can say no. Before, you didn't have that choice. The fresh air of freedom!

#14 - *applauds*

I am more than thrilled to find someone writing such a coherent argument when I myself cannot seem to. Thank you, krolik!

edited for clarity - see, I'm not coherent...

Just to be clear: I like the result of the ruling. I think it is just and fair. I think it's a great step forward, one that is and should be justly celebrated by both gay and staight, Iowan and non-Iowan alike . It's just a step arrived at the wrong way. As I see it, ways matter. I think it would be a great step forward if immigration were made much easier. But if judges decided that it *must* be so, irrespective of the legislative process, it would be bad Constitutional law.

I think your point about urgency and the chimera of fixity is quite true, and quite telling. The "urgency" of any political issue will come and go. We have a constitution to counteract these sorts of sways. In this case, the argument from urgency isn't protecting a despised minority—which polygamists surely are—but a minority that has become increasingly acceptable to the American mainstream. I guess I am not as impressed by a jurisprudence that loudly proclaims justice for only large, palatable minorities.

so many interesting thoughts, i can't possibly do them all justice, so i'm only going to add my short ideas to a few.

>10 timspalding: i agree with you, tim, that there are some things that can, and have, been done to take this message to the streets. the largest stumbling block, however, is that so many people still don't understand that being gay is NOT a choice. as i said, i'm from tennessee, a state not known for its progressiveness, and i have seen/heard it a thousand times, even from members of my own family, that "they should stop making such a fuss and find a nice girl" (since they don't even want to admit lesbians exist). race is not a choice. that issue was, excuse the terminology, black & white. how do you make steps forward toward popular support of gay marriage when, in 40 odd years, you still haven't even convinced a LARGE portion of the public that this is something essential about who you are, and not just a fancy like getting a tattoo? is it fair to say that gays wait it out until the popular vote can ensure a more stable result? i don't think so.

>13 timspalding: again, i think that it is dangerous to make comparisons between gay marriage and other "minority issues" because it's convenient. these things AREN'T the same at all. i, probably more than most people who are suggesting it, think that polygamy should have some standing in the legal system (but i'm an anthropologist and know that polygamy has a longer history in the world than monogamy). there are many, many ways in which polygamy actually BENEFITS the society that practices it (when the unions are by free choice, of course). the problem in making the comparison, however, is that polygamists HAVE the ability to marry the person of their choosing. they even have the ability to marry ALL the people of their choosing, so long as they secure a divorce first. to those gays waiting to marry the one they love, mustn’t this seem like comparing someone who is dying of thirst and an alcoholic who is dying of liver failure and saying they are dying from the same thing?

there have been gay unions going on for a really long time, stop-gaps to seal a bond that the government won't recognize. the real difference, for me, between gay marriage and plural marriage is that gays WANT desperately to be recognized by their government, to be an active and vital part of this society and it's regulations. now, i don't know heaps and heaps of polygamists, but those that i do have always shared one important fact with me: it would be nice for them to not be persecuted by the government for their way of life, but they could care less whether their marriages were ever "recognized" by the country. they simply want to be left alone to live the lives that god has called them too. i think that answers your question of urgency.

(i'm really enjoying this debate, so if at some point i'm seeming harsh or accusatory, please don't take offense. sometimes i just get carried away in the love of the good ole back and forth!)

I feel that you shouldn't go down the route that polygamy or any other form of marriage "benefits the society." To heck with society. If you could prove with facts and figures that gay people have screwed up kids, or black-white marriages contribute less to charity—whatever—it would be beside the point. We don't prevent marriages between dumb people, and we don't gauge whether the state should allow white straight people to marry based on whether the marriage will benefit "society."

>18 timspalding: I agree that such formulations tend to lead to a dead end. Freedom is messy, but it's better than the alternative.

just to clarify... i think i gave the wrong impression in my last post. i wasn't trying to suggest that gay marriage DIDN'T benefit society. i wasn't trying to set plural marriage and gay marriage as opposites. i think they both benefit society in several important ways, which i won't get into here because most people are completely uninterested in the dynamics of kinship. i was simply trying to show that by saying you can't compare plural marriage to gay marriage, it wasn't because i thought plural marriage was invalid. and i think i ended up making it seem like the opposite.

No, I got you. I just don't think the benefits of a particular form of marriage should be the criterion. Logically, once you make that argument, then detrimental effects should be grounds for preventing marriage.

ok, i understand now. i thought i just wasn't being clear.

i didn't mean that those benefits should necessarily be the criteria for legalization or not. i was more or less just thinking from an anthropology stand-point.

i do, however, think that it's important to acknowledge that a lot of people WILL be thinking that way. the agressive conservative right doesn't even try to hide that they think allowing gay marriage will destroy this country. so you have to be prepared to counteract that thinking. not because it's WHY it should be allowed, but because it's always helpful to have those things in your arsenal.

No, good point.

I think there's a huge danger in assuming an equivalency between what legislatures do and what judiciaries. I can see the temptation: they are both bodies of people who make their decisions, at the end of the day, by voting.

Legislatures are more or less unthinking voting machines: for a law to pass, it doesn't have to be logical or make sense or be beneficial to the social good, just have a critical number of representatives vote for it. (If it's not these things, it's probably more likely to be struck down by judicial review, though.)

Judiciaries, on the other hand, have to defend their positions. The decision striking down the gay marriage ban in Iowa was many dozens of pages long; if all it was seven people just unilaterally deciding they wanted gay marriage in Iowa on a whim, it wouldn't take that many pages to say so. But instead, they were beholden to the Constitution.

Now, admittedly, there's no higher authority to point out if they've made a mistake, but that's still not the same as assuming they're acting out of caprice or nothing greater than their own moral intuition. Now, of course occasionaally bad decisions can and should get reversed, but there's such things as stare decisis, precedent, and case law which need to be wrestled with in the preparation of a decision. The notion of equal protection is at this point a well-established legal principle with a long enough history.

Perhaps when one looks at the Iowa constitution and sees "2" and then at the decision and sees "=4," confusion is inevitable. But when one looks at the precedents and case law and sees "+2," the whole thing begins to make more sense. Perhaps that's the Constitution changing, but if so the change truly is incremental, and most of it is already settled law. Activism it ain't.

And even the "+2" is supported using the language of the Constitution itself. At parts the logic may be stronger than others, and when we look at the whole it might seem rather like a house of cards. But how else could it be? Any attempt to make the Constitution applicable to our modern world, any approach which assumes the Constitution is applicable to things the Founders wouldn't have imagined like internet commerce or directional wiretaps, is going to require an impressive string of premises and conclusions. Perhaps the one we've inherited over the last two hundred years isn't the best one, isn't the purely correct one if some God-like being could interpret the Constitution with perfect neutrality and accuracy, but the process which created it didn't lack for checks and balances.

If one thinks their decision was wrongly decided given the case law and precedents in effect, the response isn't to whine about judicial activism--it's to make the reasoned argument that their logic is flawed in x, y, and z ways. (Obviously there are plenty of social conservatives across the 'net who are whining about judicial activism and critique the Iowa decision. I disagree with their logic, but I respect their engagement in the dialectic.)

Is there anything stopping the Supreme Court from deciding it doesn't need to care anymore about that stuff and can do whatever it wants? I guess not, and I agree that if that were to happen it would be a terrible thing. But I haven't seen a reasoned argument that that's what's happened in Iowa.

Now our courts in the present day haven't been as aggressive as I'd like in making clear the precedents necessary to insure that Tim will never be thrown in jail and tortured. This scares me, yes. But it isn't due to a failure of judicial activism; it's a problem that the courts haven't been active enough.

In a sane world, both pure influence-neutral textualist interpretation and "whim of the judge" activism would be dismissed as straw arguments. True judicial proceeding lies somewhere in the middle.

What a well explained and thoughtful post, Alixtii. Thanks!

On the side issue of how rapidly public opinions are changing, this was a very interesting article:

http://www.fivethirtyeight.com/2009/04/will-iowans-uphold-gay-marriage.html

(He predicts that in 2012 in Iowa it would be a toss-up, and in 2014 or later Iowans would uphold marriage equality). A vote can't happen before 2012 given how Iowa amends its state constitution.

What makes me sad about this is that had conservatives gone for civil unions, marriage wouldn't be under attack now.

I fervently pray each night before going to bed that conservatives will wake up to the damage they do by standing in people's way. Often the first solution to a problem is the most successful and least disruptive solution. By the time all forces marshal all their arguments, the losers fare much worse than had they gone along in the first place.

This movement did not start as a movement for the democritization of marriage, it started as a movement for a few basic rights for homosexuals that heterosexuals have. With little support, the movement was forced to change their tactics and go after marriage in the courts.

Conservatives are their own worst enemies.

marriage wouldn't be under attack now.

Just wanted to see that again, Gene.

>27 geneg:

Do you think? I'm not sure that's true. I think it was a stepping-stone thing, and wouldn't have stopped there. Maybe if you had done it twenty years ago, and put it in the Constitution. But short of that, movement tends to raise expectations.

I fervently pray each night before going to bed that conservatives will wake up to the damage they do by standing in people's way.

I am only a conservative on some issues—and not on this one. But I still think you need to denuclearize your prayers, or I'm going to pray people like you fall out of bed in the morning. Don't think I won't.

It may simply be a function of whom I've read recently, but I find it interesting that most of the socially conservative responses I've read this past weekend which think the Iowa decision was wrongly decided and give reasons for it recognize that they hold what is essentially a reactionary judicial philosohy--which is to say that they disagree with not only this decision (and the similar ones in California, Connecticut, and Massachusetts) but a huge amount of case law over the last few decades, pretty much with the entire notion of equal protection itself. Social conservatives do indeed want to take us back to the 1950's, judicially speaking: to the pre-Warren Court era.

For example, take Rod Dreher's claim here that the uber-conservative Roberts court, either as presently configured or in the near future, will declare gay marriage bans in all 50 states to be unconstitutional based on the federal Constitution:

It is increasingly obvious that the US Supreme Court is going to have to rule on this matter soon. It is an untenable situation for a same-sex couple to be married in Vermont and Massachusetts and Iowa, but not in Texas, Nevada and Montana. I believe SCOTUS will constitutionalize gay marriage, and that being the case, it might be better for my side if it gets done sooner rather than later. If done sooner, there might still be enough backlash left in the American people to get a constitutional amendment passed erecting a high barrier or protection around religious institutions.

>31 Alixtii:

I don't buy the idea that people who are against gay-marriage are 1950s "reactionaries." First, there's the little issue that over 90% of the US by population and land does not allow gay marriage, both parties are against it in their platforms and their leaders, and, I strongly suspect, a supermajority of state justices and federal judges as well, so I think it's a little premature to proclaim your opinion the unquestionable mainstream and your opponents so far outside it as to be 60 years out of date! In a word: Get real and understand that you—and I—are fighting for something that's moving toward the mainstream, but ain't there yet!

Face facts. Marriage as a word and a concept has such a strong association with male-female relationships as to be essentially synonymous, again until virtually yesterday, in the life of history and US law. Whether you like it or not, gay marriage is an extremely new conception, and one that would have not even made it to a courtroom during most of the life of American law. There is something deeply weird about something that would have unquestioningly and flatly denied in every county of the United States for 90% of American history—involving a sexual act that actually drew the death penalty in many states when the Constitution was signed!—now suddenly being not only allowed, but actually Constitutionally mandated.

Again, I think gay marriage is the right thing to do, but to claim that it's deeply in the case law of America is absurd. It's only deep in the case law through a major semantic redefinition that would have been unthinkable until very recently. I don't want that kind of redefinition to be possible without other parts of our government involved.

Let's take "equal protection" seriously, and imagine it means what gay marriage requires it to mean. If gay marriage were not only justice and right but actually required by the constitution, where does it end? I think laws that deny polygamous marriages legal support are certainly in that bucket.

Or take the first civil unions law, in Vermont, allowed unions between people who weren't romantically linked—for example two elderly sisters, whose finances were completely intertwined and who ought to have rights like hospital visitation assured in law. There is something very appealing about that—about the idea that people should be able to assure the legal status of a relationship as strong and as important as marriage.

If I had the chance, I would vote for such a law. It is only fair and right that two people who've lived their lives together and in common, but don't have sex of any kind, should be able to take advantage of some of the legal protections afforded to two seventeen year-old fools who got drunk and drove to Vegas to get hitched for $100, photograph extra.

But even if I think this would be fair and right, and states may adopt such laws, there's clearly nothing in the Constitution to require it!

On the Roberts court, I don't think you'll see them going that way. Get a Republican in office for a while longer and someone might "discover" that the Constitution actually forbids states to recognize same-sex marriage. If that ever happens, there should be no crying from those applauding the Iowa decision--a constitution that can change can, after all, change in ways you don't like.

>32 timspalding:

Lots of assertions here. I'll question a few:

I think your 90% figure about the population sounds inflated;

Your question of "where does it end" is true enough, but it concedes, I think, the idea of a continuum. Once we start with the institution of marriage (say, for heteros...) then you're already going down that slope. It gets slippery. Let us heteros marry, and hey, other stuff happens, too.

And, as you say, the constitution can change in ways "you" don't like. Many of us have disagreements about procedures and legal interpretations and priorities. Thus it becomes less clear to me about who "you" is.

I guess we'll have to stay tuned. You is also you which means it is about us. As Americans, we're still figuring out about who "we" are.

No, I don't mean 90% of the population—it's something like 60/40 or 55/45 now, depending on how you ask it, right?—but 90% by population of state. Gay marriage is legal in MA, VT, CT and Iowa. I haven't done the math, but that's less than 10% isn't it?

I guess we'll have to stay tuned. You is also you which means it is about us. As Americans, we're still figuring out about who "we" are.

Right. It's about us. I'm not a judge. Are you? I feel like it's weird when other people figure it basic government parameters for us.

Put in your language, I "stay tuned" to something I don't control. I vote for something I do.

I haven't done the math, but that's less than 10% isn't it?

Well, so far - but it's early yet.

US population (2007): 301,610,000

CT 3,502,000
Iowa 2,988,000
Mass. 6,450,000
VT 621,000

total 13,561,000 = 4.49% of US population

Of course, on-the-brink California (at 36,553,000...) is 12.11% of the country all by itself. New York (19,298,000, 6.4%) is only a couple of State Senators away from marriage equality, too. Those two states would bring it up to 23% of the nation. New Hampshire is close, too.

DC too, apparently. If they pass it, that'll turn into a big deal, since the Congress has ultimate authority there.

>32 timspalding:: I don't buy the idea that people who are against gay-marriage are 1950s "reactionaries."

I never said they were. I said that people who think the Iowa decision was wrongly decided were holding a reactionary judicial philosophy. The difference is huge. You can be against gay marriage and still think the case was rightly decided or--as you are--for gay marriage and think it was wrongly decided. And one can hold a reactionary judicial policy without being a cultural reactionary.

Whether gay marriage is popular or not is 100% irrelevant to the issue the Iowa court looked at.

If gay marriage were not only justice and right but actually required by the constitution, where does it end? I think laws that deny polygamous marriages legal support are certainly in that bucket.

I have no doubt the judiciary will tackle that eventually.

On the Roberts court, I don't think you'll see them going that way.

Oh, I don't either; the Supreme Court has clearly moved rightward since the Warren court. But I was surprised that Rod Dreher thought they would. He's probably just being pessimistic; I'm not optimistic enough to agree with him.

There is something deeply weird about something that would have unquestioningly and flatly denied in every county of the United States for 90% of American history—involving a sexual act that actually drew the death penalty in many states when the Constitution was signed!—now suddenly being not only allowed, but actually Constitutionally mandated.

Why? That's like saying there's something deeply wierd about some highly advanced theorem of Euclidean mathematics worked out by a 20th century theoretical mathematician just because Euclid didn't work it out himself.

If that ever happens, there should be no crying from those applauding the Iowa decision--a constitution that can change can, after all, change in ways you don't like.

But you're the one assuming that the Constitution "changed"; I'm assuming that it didn't. If the Roberts court makes a decision that contradicts previous case law, then--well, I guess it depends on one's stance on stare decisis but I don't see why whining wouldn't be appropriate.

I'm not a legal relativist; I do think there are such things as rightly decided and wrongly decided decisions by an objective or quasi-objective standard. It just happens that I think the Iowa decision was rightly decided.

Whether gay marriage is popular or not is 100% irrelevant to the issue the Iowa court looked at.

Well, you get into a sort of meta-judicial issue. How far out can you get? To take the case very far, if by some stroke of luck you managed to get 5 Marxists or 5 Jains on a state supreme court, they might decide that "equal protection" requires the abolition of property and the protection of insects from being stepped on. In their understanding, that's what equal protection means.

What do you have to prevent that outcome? I think you have three things: (1) What did the authors and ratifiers of the Constitution think the phrase meant? (2) What do people today--as a body and as expressed through other government instutitions--think it means? (3) What does previous case law think it means? This definition being oddly circular, unless that rests on #1 or #2.

Frankly, I think your best best is to split "meaning" from "willingly to apply meaning." By this logic, although the founders did not intend certain effects, their meaning logically has that effect. For example, although the founders did not intend women to have full legal and political rights, the logic--and even the language--of their words go that direction.

That argument is not without attraction in this case. I do think that justice requires gay marriage--if there is to be state-sanctioned straight-marriage--but I am not convinced the logic of the Constitution's guarantee of due-process does.

First, recognizing the "end game" of individual liberty is not a new thing. Early readers of the Constitution (Rights of Man, etc.) saw that the words could and eventually would apply to slaves, women and non-property owners. It took a long time to work out, but the idea was there from the beginning—barking and nipping at the structure that didn't live up to its ideals. I'm sorry, but I don't think you can find any early or even not-so-early political thinker arguing that the end-game of the Constitution was gay marriage. That is, if you had proposed that the Constitution required women's suffrage to Jefferson or Adams they would have a complicated, somewhat sophistic answer why this wasn't so. If you had proposed gay marriage, I think they would have been more deeply stunned at the connection.

Second, previous movements of this nature were democratic before they were legal. Today we would say that the Constitution requires full legal and political equality. But the Supreme Court didn't weigh in on votes for poor people, votes for blacks, votes for women or property owning by women until long after the issue was essentially decided by the people. And in the important cases, it required an actual Constitutional amendment. The logic of the Constitution was full legal and political liberty. But the logic was worked out in and through the change-systems created by the Constitution--legislatures and amendments.

Let me ask therefore, do you think women's suffrage should have been constitutionally mandated before it was written into the Constitution? Seriously. I think you'd have to believe so, right?

Why? That's like saying there's something deeply wierd about some highly advanced theorem of Euclidean mathematics worked out by a 20th century theoretical mathematician just because Euclid didn't work it out himself.

Well, it's more than a order of magnitude more time, a different culture and a deeply dissimilar understanding of what mathematics is or does.

We do not live on a planet onto which the Constitution fell 2,000 years ago, without context or exterior referent, but in a country created from the text, and quite recently.

Again, some day Americans may become convinced that true justice requires we separate lions from wildebeast. Millions believe this today, unlike the gay-marriage situation in 1789. Just or not, it will nevertheless not be a "working out" of the Constition, but a weird rewriting of the Constitution if future Americans decide this is the inherent logic of the text.

I think you have three things: (1) What did the authors and ratifiers of the Constitution think the phrase meant? (2) What do people today--as a body and as expressed through other government instutitions--think it means? (3) What does previous case law think it means? This definition being oddly circular, unless that rests on #1 or #2.

I don't quite understand what your objection to #3 is. Yes, the very first court case decided in the United States under the newly ratified Constitution didn't have American federal case law to guide it. So? We do. Some things are just settled law, however much some might wish they weren't or find them unintuitive. (I don't want to make a too strong case for stare decisis--we should be able to back away from some decisions--but "guiding" I think is a reasonable metaphor. There was a lot decided in those early decisions--like the question of whether there are any limits to free speech--which really will never be up for grabs again.)

Let me ask therefore, do you think women's suffrage should have been constitutionally mandated before it was written into the Constitution?

I don't even know what "should have been mandated" means here. The real question is whether it would have been constitutionally mandated. (I think the question of whether it "should" have been is an obvious yes.) Now the case law concerning equal protection wasn't as clearly outlined at that point, pre-Warren court, as it is today, and I never argued American case law was without fumbles or leaps of logic (only that it wasn't the Iowa court who was guilty of this--if "change" has happened, then the Iowa decision was merely the cumulation of a lot of small, incremental changes).

But yes, even without the constitutional amendment I think equal protection principles mandate women's suffrage. I think if, in an alternate universe where the Warren court caselaw was all the same but the constitutional amendment was never passed, the issue came up before a contemporary court, that court would really have no choice but to mandate women's suffrage based on equal protection principles.

Just or not, it will nevertheless not be a "working out" of the Constition, but a weird rewriting of the Constitution if future Americans decide this is the inherent logic of the text.

Your choice of "decide" is odd here. Was the theorem discovered by the mathematician "decided" by her? (And it still isn't a decision even if it turns out she's using a theorem of a medieval mathematician which in actuality, unknown to her and her contemporaries, is flawed.)

The alternative universe I want you to consider is one where Warren disagreed with you--or where, following Warren, things went very much against you--where it was the Byron White court, guided by the White's argument that "the Judiciary, including this Court, is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution."

Imagine a ten year period of dismantling of Warren Court decisions, followed by Chief Justice Clarence Thomas, who dismantles New Deal decisions, followed by Chief Justice Harriet Miers, who reverses decades of judicial restraint to declare that equal protection requires school vouchers, creationism in schools and a ban on abortion, and that free speech does not apply to all the Arabs in the internment centers--centers created, of course, in strict compliance with the WWII Japanese-internment Constitutional decision as well as all the case law.

O the living Constitution! O the standards of every age applied on the eternal truths of our founders!

Would we be having the same conversation, where you asserted the abortion ban was already in the case law—indeed was a stare decisis issue—and I spoke of the absolute silence of the Constitution on the issue?

California does not require an "overwhelming majority" to amend its constitution. It takes a simple majority. That's how the constitution was amended by Proposition 8 last November.

>41 johnlilburnfreemason:

California distinguishes between "amendments" and "revisions," the latter requiring 2/3 votes. The terms are quite simply not explained in the text itself. Much depends if "revision" means "very large change" or "change to something that's already in the constitution." By the latter interpretation, you can add something to the constitution by 50% vote, but changing something requires 2/3 vote.

Actually, this is one of those issues that people look at situationally. People opposed to Prop 8 initially asked that it be thrown out on the grounds that the right of gays to marry, while not explicitly in the constitutional text per se, was reasoned from the text by the Supreme Court and therefore its removal was a revision, not an amendment. (Initial efforts to do that failed—courts don't like to rule on Constitutional challenges to laws that don't yet exist! Appeals continue.)

Now that prop. 8 is in the Constitution, however, anti-Prop. 8 advocates have largely changed their mind about what a revision is, and believe it to only mean an "overhaul" of the Constitution, not changing small pieces of it. If this were the case, it could be overthrown by another majority vote.

I'm not attacking Prop8 people specifically here. Constitutional and legal arguments are always like this. Advocates for positions care more for their goal than about the process. They'll use the process, and make process-arguments, but fundamentally they'll shift their process opinions when it suits them. No doubt pro-8 opponents are similarly dancing around on the issue. That is, I think, why we have Constitutions—to have some rule of law above and beyond advocacy.

I have no real opinion on the substance of the issue, except to say that the California Constitution should have clarified what it meant. There are good reasons to require super-majority votes on ALL constitutional issues. I wish they had gone that way. The way they went is confusing to say the least.

>40 timspalding:

Well, I certainly couldn't deny it was in the case law at that point. I could argue that it was wrongly decided--which is to say, there's nothing wrong with holding a reactionary philosophy--but I'd have to work with the meat of the case law, refuting things point by point, not just complain about "judicial activism."

But mostly, it just makes me glad the judiciary didn't mess. I never denied the point that theoretically there's nothing stopping them from messing up, but I seem to have more confidence in judges being able to understand what the Constitution requires than you do. It's not a relativistic process.

Well, I don't think we have much to argue about. I think your position must either be relativistic or Panglossian. But I know where you're coming from.

What do you think about the California amendment/revision issue? I admit simple ignorance here—of the case law and of what people think will happen.

Incidentally, as I understand it the Massachusetts ruling laid out a fall-back position—indicating the court would defend it on federal-constitutional grounds if the state-constitutional ones were overtaken. Obviously that would open it up to Federal review. What's the case in CA?

And now the state of Maine. ("As Maine goes, so goes the nation.")

Adding 1,315,000 to the numbers up at #35, = 14,861,000 people = 4.93% of the American population.

(Also: New Hampshire is now surrounded.)

D.C. also (agrees to honor marriages from states that allow it), though that kicks it to congress.

What do you think about the California amendment/revision issue? I admit simple ignorance here—of the case law and of what people think will happen.

Most of the discussion in the papers seems to indicate that it will be decided as an amendment.

I'm really proud to be a Mainer today, I have to say.

I think we did it exactly right--legislative action, not court action. I would not have believed it could have moved this quickly—Maine is no Vermont—and court action in Iowa and elsewhere were surely a factor, but I think the purely democratic nature of the move will help its legitimacy and survival against challenges.

And now the state of New Hampshire. ("Live free or die.")

Adding another 1,315,809 to the numbers up at #35, = 16,177,000 people = 5.36% of the American population.

Yeah, but they're New Hampshire people. They don't count.

What was the hangup? I know the first try contained religious conscience language (or I think it did), requiring people with religious issues against gay marriage such as church's, hospitals, etc. to accept the legality of the marriage before the law, but not having to participate by conducting gay marriages or otherwise supporting gay marriage. For instance, state sponsored adoptions would be required to consider gay couples while religious adoption agencies would not be required to.

Does the law contain that language or not?

I gather it got some of the language, but not all some wanted. The piece I read said something about no language allowing florists not to participate, etc.

Which raises the question, can you force a florist? Can't a florist refuse to help out at a marriage they disagree with for any number of reasons? Seriously. Do I have a positive right to compel a florist under law?

I don't see why gay marriage needs to be bring up any ancillary discrimination issues. I would assume you can refuse to decorate for a couple—or rent them a venue, take wedding photos—whoever they are. Am I wrong? If am I, I think the problem is that law, not gay marriage. There are all sorts of marriages that an individual conscience would not want to support. An orthodox lyre player may not want to play for a wedding involving a Jew marrying a non-Jew, etc. etc.

51>

I don't know whether New Hampshire has an existing non-discrimination law that applies to gay people; presumably a florist couldn't refuse to sell flowers to black people, for instance, so it's not completely ridiculous that a non-discrimination law could conflict with this; so the law in NH might now be "well, you have to sell flowers to gay people in general, but if it's for their wedding you can refuse."

I think the musical performer is a different case than the florist -- the musician is being asked to actually participate in the ceremony, not just sell flowers. I don't think a Catholic florist can refuse to sell flowers that will be used for non-Catholic weddings, can they?

Oh Please. It has nothing to do with florists, or musicians.

The first time the governor wanted language to prevent religious institutions from having to participate, ie: to be able refuse to rent out their halls, they are already could refuse to conduct the ceremony or let them use their sanctuaries on religious grounds.

So they added the Gov's language and re-sent the Bill.

Then a house member in favor of gay marriage refused to accept the Governor's wording saying it was codifying discrimination. It died by one vote.

Then it went on to another Bill. Don't know if the hold out caved, or they found other supporters.

The last hold up was the wording for the exemption that said Religious and Educational and the Gov wanted Religious or Educational.

They changed it, sent a new Bill and he signed it. I doubt it will survive a court challenge though because it does codify discrimination.

It isn't just about not using the space of a religious institution, it supposedly says the religious institution doesn't have to give benefits to a gay person's partner (since they don't recognize the marriage). Can't see that will fly, especially since there was a previous Civil Unions law (not sure what it said about the matter).

In any event NH has almost no laws about anything. We were just listed as the most free state in the nation. No work laws, no motorcycle helmets, no seat belts, no vehicle insurance, no sales tax, no income tax.

Most of the suits here on a lot of those issues take place in Federal Court because there is nothing in state law to sue under.

#53: I doubt it will survive a court challenge though because it does codify discrimination.

That doesn't make sense. Discrimination is only unconstitutional when the government does it. This idea that the government should be in the role interefering in private individual choices is a patent violation of the freedom of association, if not the contract clause.

54>

In absence of other laws, yes, the constitutional guarantees against discrimination would apply only to governmental actions. However, other laws -- which have repeatedly been upheld as constitutional -- prevent private parties from discriminating on the basis of race, sex, religion, and, in some states, sexual orientation or gender identity. My employer cannot fire me simply because I'm female, or an atheist, or queer, and they cannot fire the guy one cubicle down for being Chinese -- nor, for that matter, can they fire the other guy for being a straight white Christian man.

I see you seem to be a libertarian, so I won't engage further; I will only say it must be nice to be in a position where you can never possibly conceive of government acting as a force to uphold your rights.

>54 Lunar:

I am not sure what there is to understand.

If as an employer, you provide benefits to your workers, you aren't allowed to pick who gets them based on non-work reasons (female, gay, pregnant, non-white).

You can say, only this type of worker gets benefits (part time vs full time, job title, maybe even length of service), or no one gets them, but to say I am going to deny benefits that all others get because I don't want to recognize your legal marriage (because I don't approve), will most likely not fly.

If the law sanctions it, it would probably be considered unconstitutional I would assume under Federal laws about job discrimination, or Equal Protection. I think the rest is less of a problem sliding it by on the grounds of Religious Freedom.

#56: If as an employer, you provide benefits to your workers, you aren't allowed to pick who gets them based on non-work reasons (female, gay, pregnant, non-white).

Yes, I'm sure there are plenty of unconstitutional laws that say that. But... it's still the employer's money. And in the case of the exceptions the governor asked for in the bill, it sought to prevent yet a possible further unconstitutional encroachment of exerting control over what customers you choose to do business with.

Now, granted that we may disagree over whether the government should treat everyone like kindergartners learning to play nice and "share" indiscriminately. But is the "problem" really so grave that you can only solve it by putting business people under the chill of possible litigation for victimless actions?

On another note, you mentioned the lack of seat belt laws in NH and it's just interesting to note that the most recent attempt to pass seat belt legislation was successfully stopped by a narrow margin. Apparently, the Feds have been trying to bribe the NH politicians to pass it with the proposed unfreezing of federal Dept. of Transportation funds. As a Free State Project member who expects to move to NH in the next year or so, regardless of the wordings of some laws here and there, I daresay your state has a very bright future ahead of it.

>57 Lunar:

I'm with you Lunar. But it's more than just the standard discrimination issue, which we agree on and virtually nobody else.

If I refuse to sell a burger to a black person because I'm a racist, I'm discriminating against the person. If I refuse to sell a knife to a butcher, because I'm a vegan, something else is going on—I am not discriminating against the person, but the action he is doing.

I think assisting in a wedding you don't approve of—be it a gay wedding, a legally-meaningless Mormon wedding, an arranged marriage, or whatever else—is different. (What, after all, if I was a militant atheist, and was only willing to sing at weddings in which there was no prayer? Should I be forced to sing for anyone—is that what discrimination ultimately means?)

I'm not sure where to draw the line. Clearly, if you're going to have laws against discrimination, you shouldn't be able to avoid selling a stick of gum to a gay person who is getting married later that day. But actions that directly support the action seem different to me. Obviously, a rabbi should not be compelled to marry a couple he doesn't want to marry. But I also think lyre players, wedding flower arrangers*, the guy who carves the ice swans and the like should be able to bow out. They seem more like not selling the knife to the butcher—petty and obnoxious, for sure, but also the sort of thing free people should be able to choose.

*If you think flower arranging is a small deal, I want my money back.

But Tim all those people can refuse to participate as a simple matter of business. No business is required to accept every offer made to it. For every business that declines there are others that will accept.

If there is a business that routinely refuses certain customers then that may become a discrimination issue down the road. Specifically some banks refuse to lend to minorities and have a demonstrated pattern of refusal when all other factors are even. Its called Redlining and the government will get involved because it stops being about individual choice and is about denying whole groups the same services or goods that are available to others.I believe the government has a compelling interest when there are no other options for the goods and services, or when all who are in the business are acting the same way.

The idea that the law for gay marriage needs to protect florists and musicians and others is silly, because there are those existing business that will fill the niche, just to make money, and new ones that will start up and be gay friendly. The gays will be served, those who do so will make money, and those who don't want to participate will go their own way. No need for a new law or an extension of the one just passed. Minimalism, its the NH way.

The only thing they wanted it to cover was the business side of the religious institutions, like renting out their halls. They already can refuse to officiate and have their churches/temples used under religious freedom. The law just says that they can use their religious principles, rather than the business model to determine who they will allow in on the periphery. I think its a reasonable compromise.

What I don't think is reasonable is the denial of benefits. And I don't even know if thats real, or just hyperbole used to frighten people into acting a certain way.

It doesn't matter that its the employer's money. If the employer is providing benefits to all, they can't refuse certain people for non-work reasons. That way lies economic slavery/feudalism , where you need to run your life to please your employer.

>59 FicusFan:

Well, strictly speaking business cannot refuse to sell to blacks because they're black. Certainly you can often get away with it by citing some business reason, but if that is not your reason, you are engaging in discrimination, and legally punishable. Now, if you're going to have that sort of law—at which point I'll put away my minority, libertarian argument that shouldn't have it—then it should also protect gays. That logic is how people like me come to the gay marriage issue too. Ideally I'd rather the state didn't get involved at all, but if the state is going to have marriage laws, and those laws are non-discriminatory, they should be so with regard to gays as well.

On the employee issue, I do think that churches should be able to pick whom they employ. There is something unjust about forcing Jains to hire someone whose religious belief involves squishing insects, abortion centers to hire secretaries who volunteer with Operation Rescue on the weekends, or orthodox Jews to hire gay activists. But again, employment discrimination law is what it is, so perhaps this is a case where, if you're going to have it, it should cover everything.

The benefits issue does beg the question of what a gay person would be doing working for a non-tolerant religious institution. And the request for benefits could bring the gayness to light and get the gay employee fired, never mind getting benefits.

But the employment issue is a whole 'nother kettle of fish. I can imagine you need to be a specific religion to be a priest/minister, and perhaps religious counselor, but do you need to be, to be the church secretary ? Is it enough to just behave in a way that doesn't bring the religion and institution ill-repute ? Is it possible to fire someone because they are doing something legal (gay marriage) but not supported by the church ? I imagine in the years to come we will find out.

But once hired people need to be treated the same, for the same job.

Yes it may be illegal for a business to refuse to serve someone because they are black, or gay, but for most business transactions no reasons are required. You either make the transaction, say no (with reason or without), or just ignore the request.