THE PLANK APRIL 3, 2009
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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.
--Richard Just
17 comments
Two of the plaintiffs in the Iowa case live just down the road from me - two of the best men, if you are one who thinks kindness, competence, compassion and responsibility are important to being a good man, I have ever met. I'm pleased for them, and proud to be an Iowan today.
But I never actually supported their case very avidly, because unlike Richard Just, I think this WILL backfire, and end up with a constitutional amendment banning gay marriage that will set gays in Iowa back for decades. Iowa's population is heavily skewed to people 50 and older, compared to the nation's population as a whole, and we're also still fairly heavily rural. The cultural shift to tolerance of gays and support for their rights is if anything, a generational change, and not one led by rural Americans. I predict there will be more than enough Democrats to support the inevitable amendment bill, and that it will pass handily in the next two legislatures.
I could be wrong, of course. My neighbors surprised the hell out of me by going for Obama in the 2008 caucuses, after all. So here's hoping I'm full of it on this analysis as well.
- sdemuth
April 3, 2009 at 4:56pm
We Iowans are on a good run. First we choose Obama in our first-in-the-nation caucuses, and now our Supremes make us proud with an excellent (and unanimous) ruling.
Next up: Hawkeyes in the Rose Bow.
- phatkarp
April 3, 2009 at 4:59pm
Question, Richard:
I asked a legal expert how the unanimity will play into precedent, and he told me it could have significance in other states and lower (and hopefully higher...) courts. My question: is it too early for this to bear on California's decision about Prop 8?
- dylanposer
April 3, 2009 at 5:11pm
sdemuth --
The cultural and generational trends are in our favor. I don't presume to tell you how your own state's politics will work, but I don't think you have much reason to worry about Iowa amending its constitution. State constitutional amendments sound like pretty tough things to accomplish out there, and this wouldn't get accomplished until, what, like 2012? More than enough time for many of those senior citizens either to get used to the idea (as has happened in Mass.) or else to go softly into that good night.
If only my fellow Californians had some of that rural common sense.
- mmussman
April 3, 2009 at 6:39pm
Somewhat less significantly (from a legal standpoint, anyway), this makes it that much harder for people to claim gay marriage is the province of "liberal coastal elites." Socially liberal hotbeds in New England are one thing, but nobody can deny Iowa is smack dab in the heartland of so-called Real America.
- adaglas
April 3, 2009 at 7:16pm
addie,
But that doesn't mean they can't wave the Out Of Control Judiciary flag. I invite them too, of course, because if the Christian Right wants to spend the last of their actual capital and political capital on, uh, Iowa, I can look forward to engaging about really pressing matters these next few years such as Iran, AfPak, Mexico policies.
- dylanposer
April 4, 2009 at 1:36am
muth:
....I never actually supported their case very avidly, because unlike Richard Just, I think this WILL backfire, and end up with a constitutional amendment banning gay marriage that will set gays in Iowa back for decades.
george:
More ominous still is the direction this country might go if the economic crisis intensifyies.
This is from Charles Blow's NYT op-ed today:
"Chuck Norris, the preeminent black belt and prospective Red Shirt, wrote earlier this month on the conservative blog WorldNetDaily: “How much more will Americans take? When will enough be enough? And, when that time comes, will our leaders finally listen or will history need to record a second American Revolution?”
"Representative Michele Bachmann of Minnesota, imagining herself as some sort of Delacroixian Liberty from the Land of the Lakes, urged her fellow Minnesotans to be "armed and dangerous" ready to bust caps over cap-and-trade, I presume.
"And between his tears, Glenn Beck, the self-professed "rodeo clown" keeps warning of an impending insurrection by saying that he believes that we are heading for “depression” and “revolution” and then gaming out that revolution on his show last month. “Think the unthinkable” he said. Indeed.
"All this talk of revolution is revolting, and it hasn’t gone unnoticed."
george:
These are the kind of folks who will tack homosexulaity to the list of things that must be stomped out once and for all.
george
- iambiguous
April 4, 2009 at 3:37am
What a beautiful Friday! Celebrated with friends last night - this is just pure joy.
- Wandreycer1
April 4, 2009 at 7:38am
mmussman -
Time will tell. Iowa retains some of it's once very progressive politics - we remain amongst the 1/3 or so of states with no death penalty, for example. Here's hoping reason prevails.
- sdemuth
April 4, 2009 at 9:14am
wandre:
What a beautiful Friday! Celebrated with friends last night - this is just pure joy.
george:
Gay, straight or both?
gw
- iambiguous
April 5, 2009 at 12:52am
Thanks for asking George, I do appreciate it - I think I'll pass on the answer though. Just to be a total prig, but I do have a point and this matters so much to me. Nothing personal at all.
I celebrated with a bunch of humans who support and admire each other. It doesn't matter, to me that really is the point.
Iowa just looks like my kind of state with my kind pf people in it, I've never been and I'm ready. Momentum is building for our famliy reunion to be held there in the fall, getting the hell off the east coast is always a good thing. Any suggestions Hawkeyes?
- Wandreycer1
April 6, 2009 at 7:24am
sdemuth: But even if there is a potential backlash, is it appropriate for the court to take that into account? How would you write a legal opinion explaining that the Iowa Constitution probably requires thus-and-so, but saying so now is, from a political perspective, likely to ultimately undermine the goal of equal treatment for gays and lesbians? The answer is, you wouldn't write such an opinion. You would write the opinion that says that the Iowa Constitution's equal protection guarantees do not reach this case, even though you're not persuaded by that, and thus fraudulently define equal protection principles to exclude gays and lesbians. This, it strikes me, is also politically bad for the cause and a legal farce besides. You could try to punt somehow -- find some narrow ground to reject the case without reaching the ultimate issues -- but that's not always possible.
Here, the legal issues are straightforward and the decisions proceed logically -- you might even say, inexorably -- from traditional legal frameworks. Those decisions that go the other way are the decisions that sound unconvincing, result-orientated, and appear to be the outcome of tortured legal analysis. The fact is, these are not, from a dispassionate legal perspective, very close cases. These decisions are often cast as usurpative, but that's not a plausible criticism unless by "usurpative" such critics mean "unpopular" or "strongly opposed by some." That can't be right. You could argue for a strict originalism that would only apply the relevant provisions as they would have been applied when they were passed, but few could sign on to that logic in this case without exposing themselves as intellectually dishonest hypocrites because they would be unwilling to apply that logic generally -- nor should they.
- jhildner
April 6, 2009 at 12:41pm
I think the main post makes clear and excellent points about the Iowa decision, the legal trends it heralds, and what seems to be the emerging thrust of the jurisprudence.
I am minded of the criticism that the courts should leave the issue alone and let the laboratories of American democracy--political action in the states--work it out. But my thought, prompted by the main post, is who is it who can exclude state (any) courts, in dealing with the issue properly presented to them, from being part of the democratic experiment.
- basman
April 6, 2009 at 4:56pm
adaglas... I can't believe you think that Iowa is "Real America". Why, it's sandwiched right in between Obama-voting Omaha, and Illinois, the home of The One himself.
But seriously, I'm pretty sure that conservatives will simply continue to redefine "Real America" as "wherever they can still find people who agree with them." Of course, Americans in general are starting to get wise to this ridiculous tautology, as in the blowback to Sarah Palin's comments about finding "real America" in small-town North Carolina (www.washingtonpost.com/.../AR2008102102449.html). These were less than enthusiastically received elsewhere in the country, including elsewhere in the same state!
- moxfyre
April 6, 2009 at 5:52pm
Judges should not be appointed but elected in a general election. It wouldn't necessarily settle disputes such as constitutionality of gay marriage but it might blunt some of the arguments for political interference on the part of the courts, and, possibly retard popular uprisings against sitting justices. (Then again, maybe it wouldn't do either of these things, but it's not a bad idea.)
- tomeg
April 7, 2009 at 4:22pm
news.yahoo.com/.../gay_marriage_vermont
- basman
April 7, 2009 at 5:16pm
..Judges should not be appointed but elected in a general election..
Bad idea, too compromising of justice. Judges need relative insulation from public pressure, the pressure to get elected, and need to be preceived as not making decisons pleasing to their voters.
Judicial activism will always be with us whether from the left or the right.
Appellate review constrains it and keeps it in within reasonable limits.
And judges *running* for SCOTUS is self evidently absurd.
- basman
April 7, 2009 at 5:21pm