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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Friday, April 03, 2009

Same Sex Marriage Win in Iowa



The Iowa Supreme Court, in a strong unanimous ruling, supplied heightened scrutiny (intermediate review) to sexual orientation and overturned the state ban on same sex marriages. The ruling honored the state's long history of being ahead of the curve on judicial security of constitutional rights while defending against claims that such protection was illegitimate activism. Thus, it is well worth reading both as to its analysis of equal protection and the importance of the courts in our republican system generally.

[BTW, the opinion here was written by a Republican appointee, which is not really news any more. Justice Harlan, a conservative Ike appointee, was a strong support of privacy rights too.]

This answers whines about "activism" that "crams down" things that democratically elected (as compared to appointed?) legislators desired. Our republican system of government includes judicial review. This is often deemed a good thing. For instance, various cites etc. omitted, it notes:
In the first reported case of the Supreme Court of the Territory of Iowa, we refused to treat a human being as property to enforce a contract for slavery and held our laws must extend equal protection to persons of all races and conditions. This decision was seventeen years before the United States Supreme Court infamously decided Dred Scott v. Sandford, which upheld the rights of a slave owner to treat a person as property. Similarly, in [1873], we struck blows to the concept of segregation long before the United States Supreme Court's decision in Brown v. Board of Education [1954]. Iowa was also the first state in the nation to admit a woman to the practice of law, doing so in 1869. Her admission occurred three years before the United States Supreme Court affirmed the State of Illinois' decision to deny women admission to the practice of law, see Bradwell v. Illinois (1873). In each of those instances, our state approached a fork in the road toward fulfillment of our constitution's ideals and reaffirmed the "absolute equality of all" persons before the law as "the very foundation principle of our government."

No other court went quite as far en banc so far on the matter of marriage equality -- California (though it applied heightened scrutiny*), Connecticut and Massachusetts were split, Vermont was unanimous on narrower grounds (civil unions) while New Jersey was split on how far it should go (though united that at least civil unions were necessary). It also had an important coda addressing the alleged religious freedom problem with its holding, treading where the state avoided in its uphill battle to argue the ban was rational.

And, it is an important foothold in the heartland; if only, the New York Court of Appeals had comparable sound judgment.

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* We will soon see what Prop 8, overturning a lot harder in places like Iowa, will mean. But, it should be noted that the increased judicial protection of sexual orientation will largely remain, and civil unions ala Vermont and New Jersey very well might be compelled by its terms.