Some Different Thoughts on the Iowa Supreme Court Marriage Decision

I wanted to respond to Mr. Samis’s thoughtful post on the Iowa marriage case and thought it’d be easier to do so by a separate post than by a comment. It is hard to engage such a complicated and emotionally charged question within the confines of a blog. Although I have generally found both my allies and opponents on the question to be gracious and respectful, I am also aware that this is an issue that can degenerate into dueling allegations of bad faith — of, from one side, accusations of “hate” and “prejudice” and, from the other, charges of “licentiousness” and “irreligion.” I also know that to raise the conservative position in the academy is like launching an offensive deep behind enemy lines. You may soon find yourself surrounded.

But I am finishing (with Daniel Suhr ’08) a paper on interpretation of marriage amendments using Wisconsin as a case study, so the topic is much on my mind.

First, a disclosure. I was a public proponent of Wisconsin’s marriage amendment and based my case on wholly secular grounds without reference to the morality of same-sex relationships. While I appreciate that my church believes such relationships to be morally impermissible, I am not persuaded by that judgment.

Nor do I disagree with Mr. Samis that gay and lesbian relationships, just as heterosexual unions, may — hopefully, will — exhibit the loving and supportive characteristics that he observed between his friends. I have observed the same in my own circles.

But where proponents and opponents of genderless marriage part ways is on the question of whether this resolves the matter. The latter focus not on merely on what may be similar about same-sex and opposite-sex intimacy, but also on what is distinctive.

In my estimation, the most persuasive case against redefinition of civil marriage to include same-sex couples lies in marriage’s public meaning and purpose. Marriage certainly involves the union of people who love and are committed to one another. It certainly involves the provision of certain benefits and protections that facilitate and structure that relationship. But that alone is not what marriage is for.

To the contrary, opponents of same sex marriage adhere to the conjugal model of marriage. Its purpose is to channel relationships between men and women —  who often experience their sexuality in different ways — into a setting which is optimal for the support of the children that these relationships may — often unintentionally — create. It is intended not only to provide benefits and protections to loving and mutually supportive relationships (there are many such relationships that are outside the scope of marriage), but to encourage the channeling of potentially procreative relationships in a certain way.

If you buy this (and there are many who don’t, believing that the decoupling of sexual relationships from procreation and marriage is a good thing), then there is no reason to extend marriage to same-sex couples. Society simply does not have the same interest in channeling gay and lesbian relationships into the same setting.

This argument is not undercut by the fact that not all marriages produce children.  The conjugal model of marriage — and the normative judgment that it is the proper place for sexual relations between men and women — is a norm, not a rule. Those who adhere to the norm, even if they do not have or cannot have children, reinforce it.

This may resolve the equal protection argument, but it doesn’t resolve all questions. Most significantly, it doesn’t quite tell us what would be wrong with extending marriage to same-sex couples, some of whom will be raising children (mostly from previous heterosexual relationships, but sometimes through adoption or artificial reproduction). We still need to know why adherence to the marital norm by same-sex couples would not reinforce it.

It is there that opponents turn back to the public meaning of marriage. That meaning affects not only its legal incidents, but its norms and mores and the way in which people conduct themselves in relationship to it. The argument is that these mores and norms — the “rule of two,” the norm of exclusivity, the presumption of permanence, and the value of fathers qua fathers — are rooted in the particulars of potentially procreative relationships, the need to bridge the sexual divide between men and woman, and a normative judgment about a child’s right to know and be raised, if possible, by her biological parents. It seems unlikely, they argue, that society could change the relationships to which marriage applies and not change its public meanings and norms.

Same-sex marriage would constitute a pubic endorsement of the creation of fatherless or motherless families, not as the best alternative when a child cannot be raised by her own father and mother, but as an equally desirable form of family structure. It is unlikely that this would not further alter our notions about the importance of intact families consisting of a child’s biological parents. It would involve the incorporation into marriage of relationships for which the biological facts that have structured marriage’s norms are absent. It is not clear why this could not affect those norms.

As I said recently at Prawfs, this is an argument that appeals more to people whose intellectual tastes are more Burkean and who are cautious about the unintended consequences of rapid social change.

That would be me.

It apparently would not be the justices of the Iowa Supreme Court.

Fair enough, but I would have appreciated more of an effort to address the arguments that opponents of same-sex marriage actually make. Most of the court’s analysis presumed a “close relationship” model of marriage, as if that model were somehow ordained by the Iowa Constitution. It failed to address — or even acknowledge — the defendants’ argument about the way in which the law of marriage operates, not only by legal fiat, but by the creation of norms. It concluded, in a dismissive footnote, that fathers as fathers do not matter to the well-being of children. What does, it said, is an involved “second parent,” basing its conclusion upon a body of social science evidence that has been subjected to withering criticism and which, at least as I read it, does not come close to “proving” what the Court said it does — much less precluding the state from concluding otherwise.

In an astonshing bit of circularity, it argued that one must engage in heightened scrutiny of laws restricting marriage to opposite sex couples because majorities keep insisting that is what marriage is. (This can, of course, constitute evidence of discrimination only if that insistence is somehow irrational.) In becoming one of the few courts to apply heightened scrutiny to classifications based on sexual orientation, it misstates traditional equal protection analysis regarding the determination of suspect or quasi-suspect classes by engaging in an acontextual analysis of whether sexual orientation is a trait that is unlikely to relate to any legitimate governmental purpose. It assumes, without evidence or prompting by the plaintiffs, that traditional marriage is nothing more than imposition of a religious view and, having assumed that it is, misstates the law regarding religious motivation of secular measures.

Beyond that, it seems to me that the very worst way to redefine marriage or to create an equivalent status for same sex-couples is by judicial fiat. Not only does doing so tax what I believe to be the outer boundaries of  judicial competence and require interpeting legal doctrine in a way that makes it radically indeterminate, it threatens to perpetuate social conflict that may have negotiated a truce through the political process. The suggestion that it could be otherwise recalls the naivete of the joint opinion in Casey v. Planned Parenthood, in which Justices Souter, Kennedy, and O’Connor somehow persuaded themselves that the Court  could call for the “the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.” Courts can, of course, call for anything. It’s quite another matter for it to expect that doing so will quell passionately held beliefs.

This Post Has One Comment

  1. Sean Samis


    Thank you for your thoughts on the recent Iowa Supreme Court’s marriage decision (Varnum et al. v. Brien). The topic is regaining some prominence in the news recently given this decision and the Vermont statute that was passed over a Governor’s veto.

    On another thread, Daniel Suhr has done an excellent job trying to demonstrate that the courts don’t have to permit same-sex marriage, though I don’t believe he’s closed the deal. What I have not seen someone show is how same-sex marriage harms anyone and therefore NEEDS to be banned. What I have not found is a reason that the rights of gays and lesbians must be sacrificed to some vital public need. If there is no harm, if there is no need, then banning same-sex marriage becomes as senseless as banning fire-arms ownership in odd-numbered zip codes.

    I had hoped to see from you the reasons that same-sex marriage should be banned, but alas it was not to be so, though not for lack of effort. I apologize for the length of this; “If I had more time, I’d have written a shorter comment.”

    You provided a well thought-out commentary on the primary purposes of marriage:
    * the union of people who love and are committed to one another
    * the provision of certain benefits and protections that facilitate and structure that relationship
    * channeling relationships between men and women into a setting which is optimal for the support of the children that these relationships may create

    Having laid out these purposes of marriage (none of which I take issue with) you wrote “If you buy this …, then there is no reason to extend marriage to same-sex couples.” Again, a policy argument against recognizing same-sex marriage, not a argument that we NEED to ban them.

    Your analysis of the purposes of marriage reminded me of our analysis in Con Law 2 of the many purposes of speech and how those purposes inform freedom of speech analysis. Speech can be regarded as an essential element of participatory and democratic political processes. There is a minority of legal theorists who’ve argued that freedom of speech is limited to this category of speech, and other categories are not presumptively protected. Speech serves other purposes also: promoting intellectual development and enabling individuals to achieve self-fulfillment to name two.

    Generally, as long as the speech in question legitimately fits into any acknowledged purpose (and avoids any harm under obscenity law) then the speech is generally protected. (Is that too general?) Speech is never required to satisfy ALL purposes to be protected, it need only have some legitimate purpose.

    My long-delayed point is that you have not given any reason why an intended marriage must potentially satisfy ALL the purposes of marriage to be legitimate. You already acknowledge that procreation is not required, and that sometimes it’s not even likely. Marriages between persons beyond their child-rearing ages are legal. Marriages between people medically unable to reproduce are legal.

    As like speech, so for religious rights, gun ownership rights, associational rights and so on. All serve several potential purposes, and to gain the protection of the law, all one needs show is that the right at issue satisfies some legitimate purpose and avoids significant harms.

    Except of course, for the right to marry. Why is this so?

    If I read you correctly, your reply would be with “the public meaning of marriage” which refers to “not only its legal incidents, but its norms and mores and the way in which people conduct themselves in relationship to it.” “[T]hese mores and norms [include] the ‘rule of two,’ the norm of exclusivity, the presumption of permanence, and the value of fathers qua fathers.” These norms are “rooted in the particulars of potentially procreative relationships, the need to bridge the sexual divide between men and [women].”

    Since we are aware that not all marriages are even capable of producing children, norms regarding procreation cannot be controlling. Same-sex marriage comports with the remaining norms just as well as “traditional” marriage, so it comports with the “public meaning of marriage.”

    You also wrote, “Same-sex marriage would constitute a [public] endorsement of the creation of fatherless or motherless families, not as the best alternative when a child cannot be raised by her own father and mother, but as an equally desirable form of family structure.”

    This is wrong on several levels. First, what is best for the child may not be available. The question must always be “what is best for the child under the circumstances.”

    Second, we already have a public process that endorses the creation of motherless or fatherless families: it’s called divorce. Divorces that result in the estrangement of children from a parent are quite common. To this you might reply that the divorce process does not endorse these outcomes, but merely acknowledges and regulates their occurrence.

    Likewise, legalizing same-sex marriage is not the same as publicly endorsing it. It is legal to be a Communist, but I doubt many people think of this legality as an endorsement of Communism. It is endorsement of the right to choose Communism. Legalizing same-sex marriage likewise does not endorse the relationship, but merely acknowledges its legitimacy.

    Referring back to those marital “norms” you wrote, “It is not clear why [same-sex marriage] could not affect those norms.” Perhaps. Nor is clear why same-sex marriage would adversely affect those norms. Legalizing marriage between races did not adversely affect them, as inter-faith marriages didn’t.

    More particularly, the quickie-marriage/quickie-divorce cycle does challenge those norms, and there is no effort afoot to prevent those. They are another example of social processes which are legal but not endorsed.

    I do understand your concerns about rapid social change, but I am also concerned about governmental effort to regulate the speed of social change. I am also concerned about our willingness to impose on others the costs of our concerns about rapid social change. What rights would YOU give up if society were to say, “We’re just not ready for this yet?”

    Apparently the justices of the Iowa Supreme Court could not find a reason to make gays and lesbians wait while others come to grips with amorphous and indistinct concerns; hence the court’s ruling in Varnum.

    You wrote that in Varnum the Iowa Court treated the “close relationship model” as if it were “ordained by the Iowa Constitution” and dismissing the “norms” based model in a footnote. As I hope I have demonstrated above, a “norms” based model does not change the outcome, and divorce and family law seems to have long ago arrived at the conclusion that “fathers as fathers do not matter to the well-being of children.” And I write this as the father of two. We might not agree with that odious conclusion, but isn’t the court supposed to follow the law and the facts and not personal agenda? And that odious conclusion is irrelevant when justifying same-sex marriage.

    The circularity of levels of scrutiny long antedates Varnum. The court’s choice was within its discretion. Further, minimum rational review, when challenged, is usually justified by recourse to heightened scrutiny. Logically (if not legally) this would indicate that heightened review should be regarded as the default. Given the Ninth Amendment’s commanding language, review of laws affecting individual rights should arguably always be subject to heightened (if not strict) scrutiny.

    I hope I have made another point clear: discrimination against gays and lesbians IS IRRATIONAL. Some might say there is a rational purpose, but those purposes have been subject to their own “withering criticism.” What legitimate governmental purpose is served by discrimination on the basis of sexual orientation? What evidence is there that, apart from the imposition of religious views, there is any legitimate purpose in banning same-sex marriage? I ask again the question I see no answer to: what IS the harm?

    It would be better if marriage laws in Iowa were changed the way they recently were in Vermont. Peaceful, democratic changes are always better, but sometimes courts are presented questions in which the mandates of Constitutional texts runs counter to popular mood. Would it have been legal for Congress to, ex post facto, confiscate the AIG bonuses even though they were included in binding, legitimate contracts? If the citizens, through their elected representatives decided to ban hand-guns, should the court ignore the Second or Ninth Amendments instead of vacating the democratically enacted restrictions by judicial fiat? I think we both know the answer to those.

    The Equal Protection clause does not exclude marital law from its reach. In Varnum, the Iowa Court, through a correct if imperfect analysis, reached a correct application of Iowa’s Equal Protection clause and a just holding. The court are to be commended. I am optimistic that someday Americans will look back at this debate and wonder what the fuss was about.

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