The Unspoken: Iowa's Same Sex Marriage Decision

"It is to the honor of the Polk County Attorney's office... that it mounted fair and ethical arguments in support of the statute, while refusing to follow in lock-step the pre-baked script handed to them."

We happen to know lawyers on both sides of Varnum v. O'Brien, the Iowa same-sex marriage case decided today by the state supreme court in Des Moines. Of all the many lawyers, expert witnesses, and others involved from one end of the country to the other -- not to mention Great Britain and Canada -- oddly, it was the lawyers themselves who played the most minor of role of all.

The moment the Iowa legislature passed an explicitly anti-same sex marriage statute, national anti-gay and pro-gay marriage advocacy groups descended on poor Iowa, assembled the case, hired local lawyers (or insisted on 'helping' government lawyers), and handed each side what amounts to cookie-cutter formulae for how to try the plaintiffs' and defendants' cases.

"File this..." "List that witness... " "Invite this friend of the court to join us ..." "Oppose that friend of the court's brief..." "Go here..." "Go there..." "Call this expert..." "Ask these cross-examine questions of that expert..." "Make this legal argument..." "Answer that legal argment by saying..." "Write this brief..." "Sign this letter..." etc. etc. etc.

Much of the social and legal research in Varnum, almost all the witnesses, virtually all of the evidence, and certainly the legal arguments were identical to that used in other cases in other states like Massachusetts and California. In effect, anti- and pro- same sex marriage lobbyists handed their respective lawyers a completely polished script and said, "Here are your lines and here are your stage directions. Now, say the lines out loud and toe the marks on the floor."

It is to the honor of the Polk County, Iowa, Attorney's office -- which was legally responsible for defending the legislature's anti-gay marriage ban in court -- that it mounted fair and ethical arguments in support of the statute, while refusing to follow in lock-step the pre-baked script handed to them. This becomes clear from a passage late in the state supreme court's opinion:

I. Religious Opposition to Same-Sex Marriage. 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. The County’s silence reflects, we believe, its understanding this reason cannot, under our Iowa Constitution, be used to justify a ban on same-sex marriage. [emphasis added]

In other words, the county government's lawyers acted ethically in declining to advance essentially religious-based arguments. Although they lost -- Iowa's statute discriminating against same sex marriage was today unanimously declared unconstitutional -- the county attorneys who defended the statute truly distinguished themselves.

The state supreme court explains:

While unexpressed, religious sentiment most likely motivates many, if not most, opponents of same-sex civil marriage and perhaps even shapes the views of those people who may accept gay and lesbian unions but find the notion of same-sex marriage unsettling. Consequently, we address the religious undercurrent propelling the same-sex marriage debate as a means to fully explain our rationale for rejecting the dual-gender requirement of the marriage statute.

It is quite understandable that religiously motivated opposition to same-sex civil marriage shapes the basis for legal opposition to same-sex marriage, even if only indirectly. Religious objections to same-sex marriage are supported by thousands of years of tradition and biblical interpretation. The belief that the “sanctity of marriage” would be undermined by the inclusion of gay and lesbian couples bears a striking conceptual resemblance to the expressed secular rationale for maintaining the tradition of marriage as a union between dual-gender couples, but better identifies the source of the opposition. Whether expressly or impliedly, much of society rejects same-sex marriage due to sincere, deeply ingrained — even fundamental — religious belief.

Yet, such views are not the only religious views of marriage. As demonstrated by amicus groups, other equally sincere groups and people in Iowa and around the nation have strong religious views that yield the opposite conclusion.

This contrast of opinions in our society largely explains the absence of any religion-based rationale to test the constitutionality of Iowa’s same-sex marriage ban. 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. See Iowa Const. art. I, § 3 (“The general assembly shall make no law respecting an establishment of religion . . . .”). The statute at issue in this case does not prescribe a definition of marriage for religious institutions. Instead, the statute declares, “Marriage is a civil contract” and then regulates that civil contract. Iowa Code § 595A.1. Thus, in pursuing our task in this case, we proceed as civil judges, far removed from the theological debate of religious clerics, and focus only on the concept of civil marriage and the state licensing system that identifies a limited class of persons entitled to secular rights and benefits associated with civil marriage.

We, of course, have a constitutional mandate to protect the free exercise of religion in Iowa, which includes the freedom of a religious organization to define marriages it solemnizes as unions between a man and a woman. See Iowa Const. art. I, § 3 (“The general assembly shall make no law . . . prohibiting the free exercise [of religion] . . . .”). This mission to protect religious freedom is consistent with our task to prevent government from endorsing any religious view. State government can have no religious views, either directly or indirectly, expressed through its legislation. Knowlton v. Baumhover, 182 Iowa 691, 710, 166 N.W. 202, 208 (1918). This proposition is the essence of the separation of church and state.

As a result, civil marriage must be judged under our constitutional standards of equal protection and not under religious doctrines or the religious views of individuals. This approach does not disrespect or denigrate the religious views of many Iowans who may strongly believe in marriage as a dual-gender union, but considers, as we must, only the constitutional rights of all people, as expressed by the promise of equal protection for all. We are not permitted to do less and would damage our constitution immeasurably by trying to do more.

For us, the court's wringing endorsement of the bedrock principle of the separation of church and state is every bit as important as the substantive ruling itself.

Kudos to the Polk County Attorney's Office. They may have lost the case but they saved their souls.