THE PLANK APRIL 3, 2009
A few quick reactions to today's excellent news from Iowa:
1. Obviously, the shadow of Prop 8 hovers over this decision. Many observers will question the wisdom of another state supreme court enacting gay marriage, given the rebuke voters delivered to the California Supreme Court in November. But one of the reasons gay marriage didn't stick in California was because it is so easy to pass a constitutional amendment in that state (all that is required is a simple majority of voters). In Massachusetts and Connecticut, by contrast, where it is relatively difficult to amend the constitution, gay marriage has survived. And in this respect Iowa--where proposed constitutional amendments need to be passed by back-to-back sessions of the legislature before they can be put before the public--is much more analogous to Massachusetts and Connecticut than it is to California. (Plus, both the Iowa Assembly and the Iowa Senate are currently dominated by Democrats.) This doesn't mean there won't be an effort to amend the constitution. But the more time people have to get used to gay marriage, the less likely it is to be overturned. In Massachusetts, if gay marriage had been put to a Prop-8-style vote in the immediate wake of the court's decision, it's not clear it would have survived; polling at the time showed a slight majority opposing it. But in 2007, gay marriage received the imprimatur of the most directly democratic branch of state government when the legislature voted 151 to 45 against amending the state constitution. And today, it's pretty clear that gay marriage is going to remain a fact of life in Massachusetts. It seems reasonable to hope that events in Iowa could follow a similar pattern. At the very least, this is not going to be a sequel to Prop 8.
2. I haven't read the full decision yet, just the summary posted on the Iowa Supreme Court's website. But, like the California and Connecticut decisions from last year, this opinion is fundamentally rooted in the idea that gays and lesbians as a group--like racial minorities or women--are entitled to some form of heightened judicial protection. That this idea is gradually seeping into the law seems significant. People often accuse courts of pushing social change forward ahead of public opinion; and, in the case of gay marriage, that has certainly been true at the level of policy. But at the level of philosophy, these decisions actually represent an example of the law gradually catching up to society, rather than the other way around. Over the past generation, the idea of gays as a distinct social group--as opposed to a strata of people who are either diseased or making an odd lifestyle choice--has become the dominant view in the country at large. Of course, some people may not be completely comfortable with all the policy implications (gay marriage chief among them) that flow logically from this new understanding of homosexuality; but that doesn't make the underlying philosophical shift any less real. The clearest evidence for this change is that a majority of Americans now view homosexuality as immutable. (My hunch is that a lot of the support for civil unions comes from people who have accepted this underlying philosophical shift, but can't quite bring themselves to take the leap into supporting full-blown marriage rights.) At any rate, it is good to see this widespread change in the public's understanding of homosexuality finally taking root in legal thinking.
3. More broadly, the very fact that the central arguments of these state court opinions so closely track each other seems noteworthy in and of itself. (At one point in its ruling, the Iowa Supreme Court cites a chunk of the Connecticut decision before declaring flatly, "We agree with the observations of the Connecticut Supreme Court.") It suggests, I think, that these decisions can no longer be dismissed as isolated projects undertaken by rogue justices--which is the way a lot of people viewed the Massachusetts ruling when it was handed down all those years ago. Taken together, these decisions are starting to suggest something of a building legal momentum--momentum that other justices in other states will undoubtedly have to grapple with at some point in the future.
4. One key difference between the Iowa decision and those that came before it: In Massachusetts, California, and Connecticut, the cases were all decided by a vote of 4-3; this time, the ruling was unanimous. Earl Warren famously went out of his way to ensure that Brown v. Board of Education was decided 9-0. And John Roberts has said he wants the Supreme Court to reach unanimity when possible. At some level, of course, a majority decision is a majority decision, no matter what the vote. But there is undoubtedly symbolic significance in courts achieving unanimity. Here again, the perception of a few rogue justices hijacking a state's political process no longer fits quite as comfortably as it once did.