The Swedish parliament passed a law making marriage gender-neutral. It was passed  by a huge majority (261-22) and will come into effect on 1 May 2009. See the Reuters story at right.

The US state of Vermont also passed a law that extended marriage to same-sex couples. The bill was passed by the state's Senate with a 26-4 vote, and by House of Representatives 95-52. Governor Jim Douglas vetoed the bill; however, his veto was overridden by the Senate 23–5, and by the House 100–49, The law will come into effect on 1 September 2009.

The Supreme Court of the US state of Iowa (in the country's conservative heartlands) in a unanimous decision, overturned the law restricting marriage to opposite-sex couples, ruling that the existing legislation violated the equal protection clause of Iowa's constitution. The decision is expected to take effect within weeks.

After this decision, opponents of gay marriage are pressuring the governor and state legislature to amend the Iowa constitution to reinstate discrimination, but in Iowa the process is more arduous than in California, because not only must the legislature pass the necessary amendment bills, it must also be put to the voters. The earliest that can happen is 2012. By then, Iowans will have seen married gay couples among them for three years, and noticed that the sky has not fallen. Attitudes will have changed, it is hoped.

Meanwhile, the Supreme Court of California has yet to rule on whether the ballot initiative -– Proposition 8 -– that reinstated marriage discrimination, is valid. Things are not looking good, according to observers of the recent hearings, and the most likely scenario is that the court will rule that the Prop 8 constitutional amendment is valid. Gay activists will no doubt strive to put the issue to voters again in 2012.

* * * * *

The background is this. Six same-sex couples, some of them raising children, applied to the marriage registrar of Polk County, Iowa, to be given marriage licences. They were refused. The twelve persons sued and won a judgement in their favour in a lower court.

Polk County appealed the decision to the Supreme Court.

Equal protection challenges typically argue that the law classifies people in a way that entitles some to privileges denied to others. The question therefore revolves around classification, which has to be scrutinised. Is the classification reasonable? Does it serve the intended purpose of the law? Is the purpose of the law a legitimate exercise of government?

The court had to decide first of all what level of scrutiny to apply, among the three levels available:

Rational basis -- under which "the plaintiff has the heavy burden of showing the statute unconstitutional and must negate every reasonable basis upon which the classification may be sustained," the court explained.

Heightened Scrutiny -– "courts apply a heightened level of scrutiny under equal protection analysis when reasons exist to suspect prejudice against discrete and insular minorities . . . which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities," the court said.

There are two kinds of Heightened Scrutiny.

Strict Scrutiny -- "Classifications based on race, alienage, or national origin and those affecting fundamental rights are evaluated according to a standard known as 'strict scrutiny.' Classifications subject to strict scrutiny are presumptively invalid and must be narrowly tailored to serve a compelling governmental interest," declared the court.

Intermediate Scrutiny -– "A middle tier of analysis exists between rational basis and strict scrutiny. This intermediate tier has been applied to statutes classifying on the basis of gender or illegitimacy and requires the party seeking to uphold the statute to demonstrate the challenged classification is substantially related to the achievement of an important governmental objective. To survive intermediate scrutiny, the law must not only further an important governmental interest and be substantially related to that interest, but the justification for the classification must be genuine and must not depend on broad generalizations."

"(1) the history of invidious discrimination against the class burdened by the legislation; 

(2) whether the characteristics that distinguish the class indicate a typical class member’s ability to contribute to society;

(3) whether the distinguishing characteristic is 'immutable' or beyond the class members’ control; and 

(4) the political power of the subject class"

The court decided that gay and lesbian persons met the above tests and therefore a heightened scrutiny would be needed in this case. What level of heightened scrutiny -- strict or intermediate -- was not necessary to decide because the court found that the state's case did not even meet the demands of intermediate scrutiny.

Noteworthy was the court's passing reference to "affirmative backlash". Each time a court rules in favour of gay equality, there is an attempt to pass legislation or constitutional amendments to reverse court decisions. This "backlash" only proves prongs (1) and (4) above. It proves the existence of prejudice and discrimination and it proves that gays and lesbians are disadvantaged when they try to right wrongs through the political process. 

In heightened scrutiny, the onus falls on Polk County (and by extension, the government of Iowa) to show that the law banning same-sex marriages served a legitimate governmental purpose, and the classification inherent in the law supported this avowed purpose.

The state argued that among the objectives of the law were:

• Support for the "traditional" institution of marriage, and 
• Optimal procreation and rearing of children,

 
Supporting the "traditional" institution of marriage

The court rejected the first claim, essentially finding it to be illegitimate and circular. It said,

When a certain tradition is used as both the governmental objective and the classification to further that objective, the equal protection analysis is transformed into the circular question of whether the classification accomplishes the governmental objective, which objective is to maintain the classification. In other words, the equal protection clause is converted into a barren form of words when discrimination is made an end in itself....

This approach is, of course, an empty analysis. It permits a classification to be maintained for its own sake. Moreover, it can allow discrimination to become acceptable as tradition and helps to explain how discrimination can exist for such a long time. If a simple showing that discrimination is traditional satisfies equal protection, previous successful equal protection challenges of invidious racial and gender classifications would have failed....

Consequently, equal protection demands that the classification (that is, the exclusion of gay persons from civil marriage) must advance a state interest that is separate from the classification itself.

(Internal quotation marks removed to aid readability)

 
Optimal procreation and raising of children

As for the promotion of optimal conditions for child-raising, the court said the classification does not fit the declared objective

because it does not exclude from marriage other groups of parents -- such as child abusers, sexual predators, parents neglecting to provide child support, and violent felons -­ that are undeniably less than optimal parents. Such under-inclusion tends to demonstrate that the sexual-orientation-based classification is grounded in prejudice or overbroad generalizations about the different talents, capacities, or preferences of gay and lesbian people, rather than having a substantial relationship to some important objective...

If the marriage statute was truly focused on optimal parenting, many classifications of people would be excluded, not merely gay and lesbian people.

In any case, the court pointed out,

the statute does not prohibit same-sex couples from raising children. Same-sex couples currently raise children in Iowa, even while being excluded from civil marriage, and such couples will undoubtedly continue to do so. Recognition of this under-inclusion puts in perspective just how minimally the same-sex marriage ban actually advances the purported legislative goal.

As well,

If the statute was truly about the best interest of children, some benefit to children derived from the ban on same-sex civil marriages would be observable. Yet, the germane analysis does not show how the best interests of children of gay and lesbian parents, who are denied an environment supported by the benefits of marriage under the statute, are served by the ban. Likewise, the exclusion of gays and lesbians from marriage does not benefit the interests of those children of heterosexual parents, who are able to enjoy the environment supported by marriage with or without the inclusion of same-sex couples.

Referring to the argument that the legislative goal was the promotion of procreation within optimal family conditions, the court noted the state's argument that:

procreation is important to the continuation of the human race, and opposite-sex couples accomplish this objective because procreation occurs naturally within this group. In contrast, the County points out, same-sex couples can procreate only through assisted reproductive techniques, and some same-sex couples may choose not to procreate. 

While heterosexual marriage does lead to procreation, the argument by the County fails to address the real issue in our required analysis of the objective: whether exclusion of gay and lesbian individuals from the institution of civil marriage will result in more procreation? If procreation is the true objective, then the proffered classification must work to achieve that objective.

Conceptually, the promotion of procreation as an objective of marriage is compatible with the inclusion of gays and lesbians within the definition of marriage. Gay and lesbian persons are capable of procreation. Thus, the sole conceivable avenue by which exclusion of gay and lesbian people from civil marriage could promote more procreation is if the unavailability of civil marriage for same-sex partners caused homosexual individuals to "become" heterosexual in order to procreate within the present traditional institution of civil marriage. The briefs, the record, our research, and common sense do not suggest such an outcome. Even if possibly true, the link between exclusion of gay and lesbian people from marriage and increased procreation is far too tenuous to withstand heightened scrutiny.

The court's conclusion was put succinctly thus:

Having examined each proffered governmental objective through the appropriate lens of intermediate scrutiny, we conclude the sexual-orientation-based classification under the marriage statute does not substantially further any of the objectives. While the objectives asserted may be important (and many undoubtedly are important), none are furthered in a substantial way by the exclusion of same-sex couples from civil marriage.

Interestingly, the court made an observation about an issue that was not explicitly raised in counsels' arguments -– religious objection. Dealing with this elephant in the courtroom, the court said, almost curtly,

Now that we have addressed and rejected each specific interest advanced by the County to justify the classification drawn under the statute, we consider the reason for the exclusion of gay and lesbian couples from civil marriage left unspoken by the County: religious opposition to same-sex marriage....

Our constitution does not permit any branch of government to resolve these types of religious debates and entrusts to courts the task of ensuring government avoids them.

© Yawning Bread