September 1, 2007
Due Process in Varnum v. Brien
Varnum v. Brien, the Iowa trial court opinion striking down the state's prohibition on recognition of same-sex marriages, merits careful review. State officials have vowed to appeal, so we do not know if the holding will survive. Regardless, as one who has written an article on conflicting state trial and appellate opinions that are under appeal to the state supreme court, I believe that the trial court's reasoning is interesting and important as a potential indication of where the law is going. This is especially true in the instant case, where the trial judge wrote some 60 manuscript pages in which he adopted the findings of the plaintiffs wholesale as the basis for his analysis. His account of those findings merits a post of its own, as does his discussion of defendant's "expert" testimony. I'll deliver those posts later.
First, however, the core legal analysis, which in turn has two parts, each deserving its own post. As the quotation from the conclusion that I posted earlier indicates, the court found both due process and equal protection reasons for striking down the prohibition on same-sex marriages. This post addresses the due process analysis.
The Varnum judge asserts that "[b]oth the Iowa Supreme Court and the United States Supreme Court have recognized that the right to marry is a fundamental right." Varnum at 43. In addition to Loving v. Virginia, 388 U.S. 1 (1967), he cites Sioux City Police Officers' Ass'n. v. City of Sioux City, 495 N.W.2d 687 (Iowa 1993). Id. Under Sioux City, an Iowa law that "significantly interferes" with the right to marry invites strict scrutiny as the correct basis for judicial review. Id. Strict scrutiny has the effect, inter alia, of shifting the burden of proof from the petitioner to the defendant, who "must prove that the law is narrowly tailored to the achievement of a compelling state interest." Id.
To this point, the Iowa judge's analysis follows federal precedent closely, citing Zablocki v. Redhail, 434 U.S. 374 (1978) and City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985), as well as Loving and corresponding state precedent in Sioux City Police. Id.
He departs significantly, however, from federal precedent in the next section in a way that I find fascinating. He dismisses defendant's claim that "because no state Supreme Court or United States Supreme Court decision has declared same-sex marriage to be a fundamental right, this Court is precluded from finding the existence of such a right." Id at 44. "[T]he Iowa appellate courts have acknowledged that Due Process rights are fluid, and that such protections 'should not ultimately hinge upon whether the right sought to be recognized has been historically afforded.'" Id.
With this claim, the Varnum judge clearly differs with the U.S. Supreme Court in Bowers v. Hardwick, and with Antonin Scalia dissenting in Lawrence v. Texas.
In overruling Bowers, the Lawrence majority offered an extended discussion of the history of sodomy statutes and their enforcement in the United States, concluding that "there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter." Lawrence v. Texas, 539 U.S. 558, 568 (2003). Scalia responded, "This observation in no way casts into doubt the 'definitive [historical] conclusion' on which Bowers relied: that our Nation has a longstanding history of laws prohibiting sodomy in general -- regardless of whether it was performed by same-sex or opposite-sex couples." Id. at 596 (Scalia dissenting). This assertion is part of Scalia's larger recitation of cases holding that heightened scrutiny is available under substantive due process doctrine only for "rights which are 'deeply rooted in this Nation's history and tradition.'" Id. at 593.
So it is that the battle over same-sex marriage is important not only for its impact on same-sex couples, but also as an example of debate over substantive due process, which in turn is a debate over whether history is a monolith, anchoring the Constitution and warding off innovation, or a fluid set of events against which courts should reevaluate laws in order to detect injustice that seemed unexceptionable in the past. See id. at 578-79. The Varnum court offers an even stronger version of history as fluidity than did Justice Kennedy in his Lawrence opinion. Kennedy offered a substantive historical riposte, refuting the claim of the Bowers court that sodomy statutes had remained much the same from 1533 to 1986. Id. at 568-70.
The Varnum court, by contrast, seems to argue that it should not have to consider the substantive historical claims of the defendant because the absence of a right in the past simpliciter is not an important piece of evidence. Id at 44. This opinion cites a string of Iowa opinions dating back to 1839 (refusal to return a slave to his owner) and including various steps toward gender neutrality in family law. Id. This reasoning allows the court to do two things.
First, it provides the basis for pride in Iowa's historical record regarding advances toward legal equality.
Second, it sets up a return to Loving with the claim, "[t]he fact that there was no historical tradition of interracial marriage in Virginia did not preclude the Court from holding that the fundamental right to marriage was violated through Virginia's prohibition against interracial marriage." Id. at 45.
This observation, of course, points up the silliness of the argument for history as monolith. By 1776, North America had been part of the British Empire for 169 years, since the founding of Jamestown. That fact did not stop the colonists from overthrowing royal rule in the colonies when the King and his agents consistently deprived the colonists of their rights. Protection of the citizens' natural rights is far more important than precedent in the American legal and political tradition.
The court then listed the interests that the defendant offered in support of the prohibition on same-sex marriages. This passage, along with others, indicates the fundamental problem that conservatives face in explaining their opposition to same-sex marriage: "Though the Defendant cites an abundance of case law indicating that Courts have long considered marriage to be an important relationship, the Defendant makes no argument that promoting procreation, child rearing by a mother and father in a marriage relationship, promoting stability in opposite sex relationships, promoting the concept of traditional marriage or conservation of state and private resources are compelling state interests, despite the fact that it is his burden to do so." Varnum at 45.
The court found that defendant had failed to demonstrate either a compelling state interest for the prohibition on same-sex marriages, or that such prohibition was narrowly tailored to achieve any of the stated interests. Id at 45-46. It turns out that, absent overt appeal to religious authority, there is no reason to prohibit recognition of same-sex marriages. Conservatives have a repertoire of conclusory claims about why they think that recognition of same-sex marriages would harm the entire social order, but they have no evidence to support such claims, as the Varnum court effectively held with its review of defendant's proffered justifications.
As Scalia claimed in both Lawrence (539 U.S. at 602) and Romer v. Evans (517 U.S. 620, 653 (1996)), this indicates that the Varnum court has largely accepted the "homosexual agenda." Scalia considers this acceptance a gross failure of judicial rectitude. Seems only reasonable to me. As I will explain in subsequent posts, the Varnum court does an exceptional job in explaining both the empirical and the legal basis for enshrining the "homosexual agenda" in American law.
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The Iowa Supreme Court affirmed the ruling of the trial court on April 3, 2009. Whereas the trial court concluded that the statute prohibiting gay marriage violated both the due process and the equal protection guarantees of the state constitution, the high court concentrated only on the equal protection analysis, finding that the statute violated the Iowa constitution’s guarantee of equal protection. Having concluded that the statute was unconstitutional, the high court followed the well-established doctrine of avoidance, which instructs courts of equity to decide issues before them on the narrowest possible legal grounds, and not to reach constitutional questions that do not have to be addressed in order to support the court’s judgment (this is in accordance with the US judiciary’s policy of taking of “measured constitutional steps” in developing new law).
The Iowa Supreme Court construes the Iowa constitution’s guarantee of equal protection and the Equal Protection Clause of the Fourteenth Amendment to the US Constitution as “identical in scope, import, and purpose”. The court determined that gay Iowans could indeed mount a cognizable equal protection argument, and proceeded to determine the level of review that should be applied to the statute prohibiting gay marriage.
The state high court concluded that gay persons meet the criteria for identification as a “quasi-suspect” class. The court based this conclusion on the identification of four factors, identified from relevant US constitutional case law, that are implicated in the identification of “suspect” and “quasi-suspect” classes (note that references to the US constitution and to federal case law were for identification purposes only; the court did not implicate US constitutional issues in its analysis). These factors include: identification of gay persons as a group that has suffered a history of invidious and purposeful discrimination, the fact that gay persons are as able as heterosexual persons to contribute to society, the fact that the discrimination is triggered by the expression of a characteristic that is “immutable”, and the history of relative political powerlessness that the gay community can show. The court noted that the US Supreme Court has attached much greater weight to the first two factors than to the last two factors, although all four factors are relevant to the identification of any group as a “suspect class”. Any statute that discriminates against members of a quasi-suspect class must be subjected to quasi-strict scrutiny (a form of heightened scrutiny) when reviewed. Having concluded that the prohibition of gay marriage did not survive review under quasi-strict scrutiny, the court concluded that it was unnecessary to determine whether the statute would survive review under “strict” scrutiny (a law that cannot pass muster under quasi-strict scrutiny will necessarily and certainly fail to pass muster under strict scrutiny). The state court therefore concluded that the prohibition of gay marriage violated the equal protection guarantees of the Iowa constitution.
This decision was slightly less expansive than the California Supreme Court’s decision in in re Marriage Cases, S147999 (2008). The California high court concluded that gay persons comprise a suspect class, and that laws that discriminate against gay persons must be subjected to strict scrutiny (note that this holding was not disturbed by the passage of Proposition 8).
The Iowa Supreme Court decision was unanimous. This should give pause to those who automatically dismiss state high court decisions mandating the recognition of gay marriage as examples of “judicial activism”.
Posted by: Philip Chandler | Apr 8, 2009 11:28:38 AM