Ironic that Same Sex Couples Can Marry in Cedar Rapids But Not in San Francisco

Posted by Joshua Holland, AlterNet at 4:31 PM on April 4, 2009.

On Friday, the Iowa Supreme Court ruled that a ban on same-sex marriage is unconstitutional, and the Hawk-eye State will now join Massachusetts and Connecticut in leading the nation towards marriage equality (the Vermont legislature passed a law legalizing same-sex marriages as well, but  Republican governor Jim Douglas has promised to veto it). Good on Iowa.

As in earlier civil rights movements, the nation is headed towards the right place -- although support for full marriage equality is still a minority view, the trend, as this table from ReligiousTolerance.org suggests, is clear:

(click for larger version)

When it comes to general acceptance of homosexuality, the numbers are better still. Moreover, there's a huge generation-gap on the issue; in the vote that denied equality to LGBT couples in California last Fall, the exit polls told the story: folks over 65 voted for discrimination by a 57-43 margin while under-30s supported marriage equality by a 67-31 spread.

Anyway, I'd like to make a point about this that's inspired by a few paragraphs in a San Francisco Chronicle story on the Iowa ruling:

Calvin Massey, another constitutional law professor at Hastings, agreed that the ruling reflected emerging views among some state judges but said their importance shouldn't be overstated.

"I think you're likely to see more victories in judicial chambers for advocates of same-sex marriage," said Massey, who described himself as uncommitted to either side. "The judiciary in general is more liberal on this issue than the population as a whole."

It's easy to look at the polling on marriage equality and these decisions and come to the conclusion that the "judiciary in general is more liberal on this issue than the population," which of course fits nicely into the right-wing meme about  "activist judges" run amok. But the reality is very different -- the legal basis for these decisions is both sound and, in fact, extremely popular, and that renders words like "liberal" and "conservative" almost meaningless in this context.

The key legal justification for laws that discriminated against gays and lesbians was always fairly straightforward. Many states had sodomy laws on their books which criminalized the intimate activities same-sex couples -- as well as straight ones, obviously -- did in the privacy of their bedrooms. Despite the fact that they were rarely enforced in recent years -- and almost never against opposite-sex couples -- that made the 14th Amendment's Equal Protection Clause moot. After all, people who violate the law can't claim that they're a group that has been discriminated against, and can't demand  legal protections on that basis.

In 2003, the Supreme Court ruled those laws unconstitutional in Lawrence V. Texas. With that, the best legal argument for discriminating against gay and lesbian citizens basically fell apart. So let's return for a moment to the fact that while a majority of Americans now support at least civil unions, only around 4 in 10 (depending on the poll) favor full marriage equality. Given that full legal rights for same-sex couples is a direct result of the court's decision to overturn state sodomy laws, the question is whether or not that decision had significant support.

A Harris poll conducted a month or two before the Lawrence decision found:

Seventy-four percent of American adults surveyed last month favor the U.S. Supreme Court overturning state laws that criminalize private, consenting sexual relations between same-sex couples, yet allows that same private conduct to occur between opposite-sex couples...

Nearly nine out of 10 Americans (87%) oppose state laws regulating private, sexual relations that are applied to opposite-sex married adult couples and almost as many (82%) oppose such laws that are applied to same-sex adult couples in a domestic partnership.

In other words, same-sex marriage is the inevitable result of a very, very popular legal decision. And with private sexual activities between consenting adults no longer a crime, it's the height of right-wing judicial activism not to apply the law equally to all.

The Chronicle story does a good job explicating how weak the legal case for discriminating against gays and lesbians has become since Lawrence:

Frequently citing the California [Supreme Court ruling that legalized same-sex marriages], the Iowa justices said any law that denies equal treatment to a historically persecuted group, like homosexuals, is valid under the state Constitution only if it promotes an important, legitimate government goal. They said none of the goals cited in defense of the marriage law - tradition, protecting children, encouraging procreation - met that test.

Excluding a group from marriage merely because of long-standing custom "can allow discrimination to become acceptable as tradition," said Justice Mark Cady, one of two Republican appointees on the court. Claims that children are better off with opposite-sex parents are scientifically unproven, he said, and, even if true, would not be served by denying marriage to same-sex couples who are already raising children.

Eventually, we'll live in a society in which we look back at these efforts to discriminate against LGBT couples as a shameful and ridiculous era in our history, akin to "separate but equal," anti-miscegenation laws or the fight against women's suffrage.

Tagged as: california, iowa, referendum, marriage equality

Joshua Holland is an editor and senior writer at AlterNet.