Marriage After Iowa (Joe)

Yesterday the Iowa Supreme Court issued a unanimous opinion in Varnum v. Brien, holding that the equal protection provision of the Iowa Constitution requires the availability of same-sex civil marriage. 

This is starting to look like a strong, and increasing, trend in favor of state recognition of same-sex marriage.  Iowa joins the high courts of Massachusetts and Connecticut in mandating full marriage equality.  (California, of course, had also done that, but its decision was overturned by Prop 8.  Unlike California, Iowa's constitution is not absurdly easy to amend, so there is little chance of a similar amendment in this case.) 

One thing I did not realize until just now is that we may soon see legislation (which was not mandated by courts) creating same-sex marriages.  According to the San Francisco Chronicle, legislation is pending in Vermont, New Hampshire, and New Jersey.  In Vermont it has passed through both houses, although the governor has threatened to veto it.  In New Hampshire it has passed a house vote and is awaiting a vote by the senate.  In New Jersey a bill has been introduced in the legislature; the governor has vowed to sign it.  Legislative success would refute the complaints about judicial activism and a lack of democratic legitimacy.  It would also further embolden courts to make constitutional decisions in favor of marriage equality.

The speed at which these decisions are now rolling out is also significant.  The California Supreme Court decided its case less than a year ago; Connecticut decided its less than six months ago.  With each case it becomes easier for the next state to cite it and follow in its stead.  The fact that Iowa is widely regarded as the purple, mainstreamish leader of the heartland only strengthens the case.  No one has ever accused Iowa of being full of pot-smoking hippies, or liberal, coastal elitists. 

I wouldn't be surprised to see Minnesota follow, leaning heavily on its well-regarded neighbor of a supreme court.  And what then?  Wisconsin?  No, sadly -- we run into a problem at that point.  Wisconsin is one of 29 states with a state constitutional amendment banning same-sex marriage; this group is comprised mainly of conservative states, but in addition to Wisconsin also includes Colorado, Michigan, Ohio, and Oregon. 

So let's say Vermont, New Hampshire, and New Jersey pass their legislation.  The Minnesota judiciary follows Iowa.  At least some out of a group including Rhode Island, New York, Maine, Washington, and Pennsylvania could be expected to follow, as well as possibly a surprise like New Mexico.  Asking for all of that would be too much, but within a few years it's realistic to expect CT, MA, IA, NJ, NH, as well as, say, MN, RI, NY, and WA to have same-sex marriage.  That's 9 states, 7 of them on the basis of judicial decisions.  The figure could not go higher than 21 on state grounds, which is where the next interesting step comes into play: federal constitutional law.  What happens then is harder to guess at -- it's plausible that federal or state judges will want to be the ones to kick off a U.S. Constitution-based right to marriage equality, but if it happens too soon, the U.S. Supreme Court will kill it (unless Justice Kennedy is convinced by the growing state trend and wants to be the one to really top it off -- he would obviously get that opinion).

In any event, this is great news out of Iowa.  It's an important step toward legal equality for gay people in this country, and for now there is reason for optimism.

Comments

[Dean C. Rowan]

Opinion here. I've only glanced at it, but it appears remarkably temperate in rhetorical tone. Right at the top, for instance:

Despite the commonality shared with other Iowans, the twelve plaintiffs are different from most in one way. They are sexually and romantically attracted to members of their own sex. The twelve plaintiffs comprise six same-sex couples who live in committed relationships. Each maintains a hope of getting married one day, an aspiration shared by many throughout Iowa.

But I have a legal question. In Part III of the opinion, the part dealing with constitutional separation of powers, the court writes, "A statute inconsistent with the Iowa Constitution must be declared void, even though it may be supported by strong and deep-seated traditional beliefs and popular opinion," then cites to the Iowa Constitution. Fair enough. But then the court quotes CJ Marshall from Marbury v. Madison to the effect that "It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it...." Have I mistakenly assumed that when we speak about constitutional law in the USA, we are usually referring to the federal Constitution and its ramifications, and not to constitutions generally? Yes, the federal Constitution is among the legal instruments comprising the supreme law of the land, but how does Marshall's pronouncement of the superiority of the federal constitution to federal and state ("any") legal acts have any bearing on the relationship of Iowa's Constitution to Iowa legislation?

[Joe]

I think you're right to suggest that Marbury is not controlling precedent on a question of state-constitution constitutional law, but it does articulate principles common to probably all state constitutional law systems. Given that it's venerable, why not quote it if you like how it says what it says? (Note also that the entire discussion is probably technically unnecessary -- surely judicial review is established in Iowa to the point where the parties didn't even argue it. But this discussion was apparently aimed at an audience broader than the typical legal audience.)

[Dean C. Rowan]

I get your point, Joe, and I'm sure you're right about Marbury and the opinion's intended audience. But isn't it ironic that the court relies on a venerated, at best indirectly applicable opinion to support its ruling challenging the sway held by "strong and deep-seated traditional beliefs and popular opinion"? I've always found disturbing, by the way, remarks like CJ Marshall's quoted by the Iowa court, if only because there are so few propositions "too plain to be contested." In a charged atmosphere like a court dispute over the extent of constitutional powers, there are far fewer, proportionately speaking, than in, say, ordinary discourse of newspapers, blogs, and coffee shop conversations.

[Joe]

I haven't read the opinion carefully, but my impression is that it's too strong to say that the court "relies" on Marbury. The Iowa Constitution itself expressly provides that a contrary act "shall be void." It seems as if CJ Marshall's statement was just a throw-in (of the "see also" or "accord" variety). Something about it does feel odd, though -- and because it didn't need to be there and adds only rhetorical flourish, I think this comes back to the intended audience and the implicit claim, "We're not judicial activists."