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A judge in Iowa has ruled that same-sex marriage is a (state) constitutional right. I've given the decision a quick read; a distressing amount of it is given over to policy arguments for allowing gay marriage, most of which I agree with but none of which are relevant (except under the dubious "balancing test" that the judge is applying). As for the constitutional arguments, my impression is that the due process argument is extremely weak -- and, given the wording of Iowa's constitution, where the due process clause is almost the same as it is in the US Constitution, would imply that the Supreme Court of the US should impose gay marriage on the nation. The equal protection argument seems somewhat stronger, based on the wording of Iowa's equal protection clause (which is more specific than its federal cousin), but it assumes that gay people constitute a "class of citizens" for constitutional purposes -- in other words, that the relatively new concept of sexual orientation should be legally treated the way that race or gender is. I somehow doubt that the framers of Iowa's constitution had homosexuals in mind when they drafted their constitution in 1857, and imposing sexual orientation onto the racial framework that they did have in mind (they were writing an anti-slavery constitution) has some odd implications. If the government can't deny you a marriage license because you were born without the capacity to have a healthy heterosexual relationship, why can they deny you a driver's license because you were born without arms? (I know, one might object to that analogy on various grounds, but it's only one of several reasons to be extremely cautious about undemocratically imposing changes in marriage laws.)

I don't know enough about the Iowa Supreme Court to predict whether this ruling has any chance of surviving on appeal. As for the political implications, I think Stanley Kurtz's analysis gets it about right.

topics:
Constitution, Law, Supreme Court