Iowa Supreme Court Overturns State Law Banning Same-Sex Marriage
The 69-page opinion is here.
Right-wingers are reacting, as always, with outraged cries that the Iowa Supreme Court has attacked traditional marriage, denied the will of the people, and legislated from the bench for political reasons. And, predictably, they are calling for an amendment to the state constitution to define marriage as one man, one woman.
Ed Whelan at The Corner is typical:
The lawless judicial attack on traditional marriage and on representative government continues.Today the Iowa supreme court ruled unanimously (7-0) that a “state statute limiting civil marriage to a union between a man and a woman violates the equal protection clause of the Iowa Constitution.” Amidst the opinion’s 69 pages of blather, there are two key assertions (and they’re nothing more than that):
(1) “[E]qual protection can only be defined by the standards of each generation.” (p. 16)
If you were not attuned to the deceptive rhetoric of living-constitutionalist judges, you would sensibly imagine that that proposition would mean that the court would defer to the standard of the current generation reflected in the statute that Iowa adopted in 1998.But no:
(2) “The point in time when the standard of equal protection finally takes a new form is a product of the conviction of one, or many, individuals that a particular grouping results in inequality and the ability of the judicial system to perform its constitutional role free from the influences that tend to make society’s understanding of equal protection resistant to change.” (pp. 16-17)
Ed Whelan is confusing the inequality with the changing standard of what constitutes inequality. Laws banning same-sex marriage are the response to changing standards on the part of people who want to cling to the old standards. Why would there even be this growing movement for marriage equality if the standard were not changing? Why would state laws defining marriage as exclusively heterosexual, and calls to amend state constitutions to so define marriage be considered necessary by folks like Ed Whelan, in the absence of a tangible public awareness that same-sex attraction and love is a real and normal and legitimate variant of human sexuality, and thus that gay and lesbian people should have the same right to marry as anyone else? That’s the evolving standard. Ed Whelan is part of the opposition to that evolving standard.