September 7, 2007
Varnum's Equal Protection Analysis
Varnum v. Brien is the recent Iowa trial opinion holding that the state's prohibition on recognition of same-sex marriages violates both the due process and equal protection provisions of the state constitution. Click here for the summary of the holding as it appears in the opinion. Click here for a discussion of the due process analysis.
The present post discusses the equal protection analysis.
The equal protection analysis begins by quoting Article I, Sec. 6, Iowa Constitution: "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." Varnum at 47.
This is striking by itself given that it bears little resemblance to the text of the Equal Protection Clause in the Fourteenth Amendment to the United States Constitution. In terms of concept, if not in terms of language, it bears much more resemblance to the "Common Benefits" clause of the Vermont constitution, which served as the basis for that state supreme court's holding that same-sex couples must have the same rights and benefits as all other couples:
That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community. Vt. Const., ch. I, art. 7, as quoted in Baker v. Vermont, 170 Vt. 194, 197 (Vt. 1999).
For present purposes, I think the Vermont language best captures the legal problem: other couples get particular emoluments that same-sex couples do not get. Certainly, conservatives will still insist that the distinction is rationally related to a compelling state interest, on which more in a moment.
First, however, note that the Varnum court treats the Iowa constitutional language as essentially identical in meaning to that of the 14th Amendment. Having quoted the Iowa constitution, it then asserts that "[t]he Equal Protection Clause 'is essentially a direction that all persons similarly situated should be treated alike.'" Varnum at 47. This phrase should sound familiar. Justice O'Connor quoted it in Lawrence v. Texas, 539 U.S. 558, 579 (2003) (O'Connor concurring). The original language appears in Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985), one of O'Connor's favorite equal protection decisions.
The Varnum judge cited neither of these cases at this point, however. (He did cite Cleburne, Varnum at 54, see below.) Instead, it cited Racing Ass'n of Central Iowa v. Fitzgerald, 675 N.W.2d 1, 7 (Iowa 2004). Later, under the heading "rational basis," the Varnum judge quoted extensively from Lawrence v. Texas, 539 U.S. 558 (2003), both the majority opinion and Justice O'Connor's concurring equal protection analysis. Varnum at 52-53. He then stated, "Because the due process and equal protection clauses of the Iowa Constitution are at least coextensive with those found in the United States Constitution, [legislation with the sole purpose of expressing moral disapproval is] likewise illegitimate under the Iowa Constitution." Id. at 53.
In this respect, the Varnum court differs from the Vermont Supreme Court, which emphasized the difference between its Common Benefits Clause and the Equal Protection Clause of the 14th Amendment. Baker, 170 at 201-02. Similarly, in its opinion finding that the refusal to recognize same-sex marriages potentially violated the Hawaii constitution, that state's supreme court emphasized the differences between the Hawaii equal protection clause and the federal clause. See Baehr v. Lewin, 74 Haw. 530 (Haw. 1993) at 540 n.5 (quoting Art. I, sec. 5, Haw. const.), 547 n. 14 (explaining that issue of biological causation for sexual orientation is irrelevant to the holding of the case because the issue is discrimination on the basis of sex, not sexual orientation -- the issue is same-sex marriage, not "homosexual" marriage), 562-63 (discussing differences between federal and Hawaii equal protection clauses, notably explicit prohibition in Hawaii clause of discrimination because of sex).
Without stating as much, however, the Varnum court adopted the Hawaii court's reasoning, holding that the Iowa prohibition on recognition of same-sex marriages constitutes discrimination on the basis of sex by using a person's sex as the determining factor for marriage eligibility. Varnum at 47-48.
Again, the relationship between state and federal precedent is interesting. The Varnum judge stated that it must hold sex-based classifications to "intermediate scrutiny," but cited only state precedent, not federal precedent (e.g., Frontiero v. Richardson, 411 U.S. 677, 685-87 (1973) (plurality opinion holding that sex-based classifications qualify for strict scrutiny). He asserted that intermediate scrutiny under the equal protection analysis resembled the strict scrutiny of his due process analysis in that both had the effect of shifting the burden of proof from the plaintiff to the defendant. Varnum at 47-48.
The Varnum judge did rely on federal precedent, however, in responding to the state's assertion that the statute worked no discrimination on the basis of sex because it applied equally to men and women. He cited Loving v. Virginia, 388 U.S. 1 (1967), observing that the U.S. Supreme Court had rejected the congruent claim that Virginia's antimiscegenation statute did not discriminate on the basis of race because it applied equally to black and white persons. Varnum at 48. He then stated, "This Court concludes that the sex-based classification promulgated by Iowa Code sec. 595.2(1) is not substantially related to an important state interest." Id.
Note that the problem lies not just with the relationship between the state interest and the regulation. The Varnum judge held that the state had failed even to carry the burden of proof that any of its proffered interests was "important." Id. But even if the defendant had carried its "heavy burden of proof" regarding the compelling nature of the state interests involved, "the means by which the State seeks to achieve these goals are not substantially related. Regulating two classes of individuals, who happen to be homosexual, based on their sex, has no bearing on any of the goals articulated by the Defendant." Id. "This Court has yet to hear any convincing argument as to how excluding same-sex couples from getting married promotes responsible reproduction in general or by different-sex couples in particular. So far as this Court can tell, sec. 595.2(1) operates only to harm same-sex couples and their children." Id at 56 (emphasis in original). "Indeed, by excluding all same-sex couples from marriage, the statute actually defeats the purpose of responsible procreation by excluding qualified individuals from marriage." Id. at 58. Iowa's prohibition on recognition of same-sex marriages is both grossly over-inclusive in lumping all same-sex couples together in terms of parenting skills despite the complete lack of evidence to support such generalization, and grossly under-inclusive in not requiring any evidence of procreative intent from non-same-sex couples who wish to marry. Id. at 57-58.
The final substantive section of the opinion comes under the heading, "C. Rational Basis." Id. at 49. This seems a bit odd, given that the opinion begins its substantive due process analysis by finding that marriage is a fundamental right, significant interference with which triggers strict scrutiny. Id. at 43. The opinion fails to clarify the exact relationship between the level of analysis for the substantive due process claim and the level of analysis for the equal protection claim, but it seems that the difference lies in the focus of substantive due process on the right at issue, while the focus of equal protection analysis is typically the group that claims to suffer deprivation of a right.
By relying on a rational basis analysis, it seems to me that the Varnum judge has done much the same as what Justice Anthony Kennedy did in both Romer v. Evans and Lawrence v. Texas -- he asserts that classifications on the basis of sexual orientation are so patently arbitrary that they fail even a rational basis review, obviating the need for consideration of whether sexual orientation is a suspect or quasi-suspect classification (even though the opinion does contain a discussion of the history of discrimination against lesbians and gay men, and of the political powerlessness of lesbians and gay men, that seems to set up nicely a finding that they are at least a quasi-suspect class, id. at 39-43).