Props to Iowa District Courts

While the blogosphere seems to be all in a stir over Larry Craig, a recent decision by an Iowa District Court will probably get similar attention soon. If not, I'll be the first to point out some interesting tidbits in the rather hefty 63-page decision by Judge Robert Hanson.

Introduction and Undisputed Facts
Six same-sex couples were denied marriage licenses in Polk County, Iowa. Each couple was denied to due gender restrictions of marriage under Iowa law. The Iowa code reads (595.2): "Only a marriage between a male and a female is valid". Reading through the harms of not being able to marry, one major complaint centered around the inability to conveniently care for adopted and surrogate children. The lack of a marriage license puts financial and temporal strains into obtaining legally recognized parent-child relationships, if it is even possible for second parent adoption to occur in a given state. Same-sex couples are also legally burdened concerning medical care, requiring health care proxies to verify the legal ability for health care decisions to be made. Health care proxies prove to be a burden in instances of same-sex couples where honored marriage would be sufficient. The other complaints include financial opportunities not available to same-sex couples who upheld every other condition of being legally recognized as married other than gender, such as spousal pension benefits, inheritance, and recognized economic units for joint or communal property purchases.

From reading through the decision, one sees a laundry list of expert testimony for the defense being thrown out: Margaret Somerville, Paul Nathanson, Katherine Young, Allan Carlson, and Steven Rhoad. The reason for being inadmissible: the individuals were either speaking outside of their area of professional expertise, lacked empirical data supporting their arguments, or both. Some of the plaintiff's expert testimony were also removed due to the accounts being anecdotal as opposed to empirical or specialized knowledge.

I find the following from the section titled "Sexual Orientation and Same-Sex Relationships" (p. 28) interesting:

Interventions aimed at changing an individual's sexual orientation have not been demonstrated by empirical research to be effective or safe. They are considered ethically suspect and have generated cautionary statements from virtually all of the major mental health professional associations because such interventions can be and have been harmful to the psychological well-being of those who attempt them.

I know of a few websites with anecdotal testimony. One of the more promising ones seem to be Ex-Gay Watch. For those interested in psychology, perhaps a perusal of the journals would entice your curiosity. Another interesting remark concerning social science (p. 30):

Social science literature demonstrates that children who are reared by a married mother and father have more positive outcomes on a wide variety of important factors compared to children in other adequately studied family structures...However, same-sex couples are not included amongst the "other adequately studied family structures" referred to above.

Likewise, in the next statement, though children in a stable marriage are likely to exceed in academic attainment and possess fewer behavioral problems, the studies made no distinction between same-sex marriage versus opposite-sex marriage. Likewise, several professional organizations have issued statements that the sexual orientation of parents have no effect on a child's adjustment (eg. healthy development). As well, testimony discredited the notion that research on maladjustment of children concerning one-parent families is equivalent to same-sex families. Testimony showed, however, that this research instead supports the
plaintiffs case instead in that the studies indicate that extending legal marriage to same-sex couples would create family ties necessary for healthy child development.

Pages 37 through 39 give a short history of marriage. Marriage evolved in Iowa and elsewhere in America from the woman becoming property of the man to equal rights granted to men and women in legally recognized marriage. The judge also noted "the removal of criminal restrictions on extramarital and non-procreative sexual activities" (p. 39) during the history of the definition of marriage. This is an important consideration, because many anti same-sex marriage advocates consider the procreative role of opposite-sex couples as an attribute of legal marriage. However, modern medical technologies, such as in vitro fertilization, allows surrogate parenthood to be actualized. As well, such an extension to require procreation upon a committed marriage infringes upon the couple's natural right to refrain from concieving children altogether, whether their abstention be due to medical reasons or of mere opinion.

The opinion also outlines the level of discrimination gays in general receive in both the public and private sector in Iowa, most following the lines of social and civil exclusion due to erroneous preconceived notions perpetuated by the anti-gay movements (p. 40-42). Worth particular notice is the legislature's history of preventing and even aiding in the discrimination of gays, including the reactionary language of Chapter 595.2 of the Iowa Code to a court's ruling on a lesbian couple's civil union and a lawsuit against an "executive order prohibiting sexual orientation discrimination in State employment" (ibid.).

The plaintiffs sued the then Polk County Recorder and Registrar for violating the "fundamental right to marry under the Due Process Clause of the Iowa State Constitution" (p. 43). For reference, the Iowa State Constitution reads: "[N]o person shall be deprived of life, liberty, or property, without due process of law" (Article I, Section 9).

Analysis of Plaintiff Claims
According to Judge Hanson, higher courts have determined that the right to marry is a fundamental right (cf. Loving v Virginia), and when a law interferes with this right the law itself is subject to strict scrutiny analysis. This means that the burden of proof is on the defendant to show that the law indeed achieves the state's interest via narrow tailoring. Though no precedent for same-sex marriage being afforded as a fundamental right exists, Judge Hanson notes an extensive case history from Iowa courts to show that the protection of Due Process rights does not depend the historical aspect of the right. These cases span the topics of race, gender, and sexual orientation concerning individual rights and parental/custodial rights.

Judge Hanson found that the defendant failed to support the rationales for the gender-specific language of 595.2(1) as well as failed to support the rationales as state interests. The defendant claimed the following rationales: promotion of procreation, healthy development of children, promotion of stable opposite sex couples, "conservation of state and private resources", and maintaining the traditional view on marriage (p. 45). The court failed to see how the absolute prohibition of same-sex marriage is closely tied to the interests of the state due to the inability of the defendant to link the rationales with state interests.

Onto a more interesting note. The Iowa Constitution also has Equal Protection rights (aka the Uniform Operation of Laws):

All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.

Again, Judge Hanson determined that the burden of proof rested on the defendant to show that the current statute rests on state interests. Judge Hanson determined that due to the failures previously expressed, the defendant failed to sustain his burden of proof to show his five rationales as state interests. To use Judge Hanson's words (p. 48-9):

The Defendant produced no evidence indicating that precluding men from marrying other men and women from marrying other women will promote procreation, will encourage child rearing by mothers and fathers, will promote stability for opposite sex marriages, will conserve resources or will promote heterosexual marriage.

Rational Analysis to Determine Constitutionality
Judge Hanson also ran the gender-specific statute through a rational basis rational. That is, a statute is considered constitutional if and only if it serves a legitimate interest of the state and the means to employ the statute reflects a rational relationship to the interest of the state. Judge Hanson points to Supreme Court case law (cf. Lawrence v. Texas and Callendar v. Skiles) that indicates that moral disapproval is an insufficient justification for state interest. Therefore, the fifth rationale concerning the traditional view of marriage failed as a state interest.

Judge Hanson grouped the first three rationales together under the term "responsible procreation". Judge Hanson stresses that the defendant failed to indicate how same-sex parents cannot provide responsible procreation, specifically in the venue of child development, and in fact the Court indicates that the defendant agrees that same-sex couples give proper adjustment to children under their care. The judge also cites a list of case law that shows the courts refusal "to limit or restrict parents' custody or visitation rights or obligations based upon their sexual orientation". Judge Hanson thusly determined that the current statute actually excludes qualified individuals from marrying if the goal of marriage was responsible procreation. Thus, the statute is over-exclusive in its wording.

Simultaneously, the statute is under-inclusive. As stated previously by my commentary and in the opinion, there is no distinction between opposite-sex couples who either cannot physically
reproduce or possess an opinion contra developing a family and same-sex couples. If procreation was indeed a state interest than the statute would contain those words. By the statute being under-inclusive in only indicating same-sex couples and over-exclusive in removing qualified individuals in being parents than the statute in its current form is unconstitutional, according to Judge Hanson. That is, though the state interest of responsible procreation may be credible, the Court determined that the execution of the law was completely arbitrary and failed the rational analysis.

Concerning the rationale that barring same-sex marriage would conserve state and private resources, the defendant failed to build a case. Instead, he could only build a list denials without evidence against the claims of the plaintiffs. Therefore, Judge Hanson concluded that there is no rational basis between the state interest and the gender-specific language of 595.2(1), and thus the exclusion of same-sex marriage was determined to be arbitrary.

Conclusion
Therefore, Judge Hanson determined that 595.2 must be rewritten with gender-neutral language due to the failure to provide a non-arbitrary rationale. This case will more than likely go on to the Iowa Supreme Court. I am not familiar with the ISC, so one can only guess on the outcome. However, Hanson's opinion and the subsequent case materials is a powerful argument of the unconstitutional nature of limiting legally recognized marriage to opposite-sex couples.