Constitutional Opinions

Making It Up As They Go

In a novel approach, the iowa supremes claim to speak for a whole new generation.

By 4.6.09

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On Friday, the Iowa Supreme Court unanimously repudiated the idea that marriage is about something more than securing government approval of adult desires. In the court's formulation (the decision is on line here), Iowa's constitution mandated a redefinition of marriage to give same-sex couples "the personal and public affirmation that accompanies marriage."

As disturbing as the result is the convoluted reasoning the court employs to reach its conclusion. It is unanchored to precedent, text and, at some points, even reality. The court signals its ad hoc approach to constitutional interpretation early on when it says the legal requirement of equal protection of the laws "can only be defined by the standards of each generation."

Legal concepts are not the only casualties of the court's search for a justification on which to rest its decision. The court, for instance, recasts marriage as an arrangement "designed to bring a sense of order to the legal relationships of committed couples and their families."

Later, when the court tries to explain its role in overturning the marriage statute by arguing that it is required to act to protect a uniquely vulnerable minority, one piece of evidence the court offers to show that gays and lesbians are "politically powerless" (despite securing adoptions rights, coverage in state anti-discrimination laws, etc.) is that they have failed to convince a legislature to redefine marriage. What possible limitation, other than judges' subjective will, can there be on the court's power to disrupt social norms if it can be triggered by a failure of the legislature to meet the demands of a pressure group?

Perhaps the most creative improvisation comes in the portion of the court's decision dismissing the idea that marriage has anything to do with children's welfare.

Appellate courts in Arizona, Indiana, New Jersey, New York, Washington and Maryland have all noted the role marriage plays in encouraging men and women to take responsibility for each other and the children they may create together and in making real the opportunity of children, wherever possible, to know and be raised by their own mother and father. The supreme court of Iowa dismisses all of this with exceedingly strange arguments. For instance, the claim that marriage can have nothing to do with childrearing because bad parents are not excluded from marriage. Or (a novel straw man), that Polk County (since the state attorney general didn't bother to make an appearance in the case) should have shown that traditional marriage resulted in fewer same-sex couples rearing children if it were serious that marriage and childrearing should remain linked.

The court goes so far as to say that "the traditional notion that children need a mother and a father to be raised into healthy, well-adjusted adults is based more on stereotype than anything else." Can the court really believe that our understanding of marriage as the optimal setting for childrearing, an understanding inherited from millennia of human experience, is just a plot to disadvantage homosexuals? If this assertion had been offered two days before, one might have concluded it was a spoof.

As an aside, the court claims an abundance of (uncited) evidence that children will fare just fine in motherless or fatherless homes. It does not, however, explain how this evidence surfaced since the district court concluded from the testimony offered in the case that "Social science literature demonstrates that children who are reared by a married mother and father have more positive outcomes on a wide variety of important factors compared to children in other adequately studied family structures" and "same-sex couples are not included amongst the 'other adequately studied family structures' referred to."

That not just a majority, but the entire court, was unwilling or unable to recognize the claims of tradition, of constitutional law, or even of realities like sex differences or procreative capacity, is troubling indeed. While improvisation may be charming in music, it is a poor technique for legal analysis.

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About the Author

William C. Duncan is the director of the Marriage Law Foundation.