Iowa Supreme Court strikes ban on same sex marriage

I'm less than half way through the opinion, but it's a stunning tour de force.

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For we know that our patchwork heritage is a strength, not a weakness. We are a nation of Christians and Muslims, Jews and Hindus -- and non-believers. -- Barack ObamaWe see monsters where science shows us windmills. -- Phat

Minnesotans like to tell Iowa jokes.What does Iowa stand for? Idiots Out Walking Around, or, I Own the World an Apology.I think I gotta give 'em a pass, at least for a while.

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For we know that our patchwork heritage is a strength, not a weakness. We are a nation of Christians and Muslims, Jews and Hindus -- and non-believers. -- Barack ObamaWe see monsters where science shows us windmills. -- Phat

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This ruling makes in unconstitutional on due process and equal protection.

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The california ruling said that the statutes were unconstitutional because homosexual marriage was a fundamental right.

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I would think the two courts are making two different arguments.

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You are quite correct that the Iowa case has no discussion of the "fundamental right" issue. I can speculate why not.As I have explained in previous gay marriage threads, there is a very exacting standard that a state must meet to justify any governmental action that infringes on a fundamental right. That standard is called "strict scrutiny." The Iowa opinion touches on strict scrutiny.Several commentators have written that strict scrutiny is "strict in theory, fatal in fact." While that analysis is not entirely accurate, very few governmental actions will be upheld under a strict scrutiny analysis. The level of scrutiny that the Iowa court used, "intermediate scrutiny," is easier to satisfy.It should be clear to anyone reading the opinion that, right from the beginning, the court wanted to make as strong a statement as possible about the unconstitutionality of a gay marriage ban. It occurs to me that an analysis showing that the ban can't meet even the less exacting standard of intermediate scrutiny gives the argument that much more force.Let me stress that this is my own speculation, and based on nothing more than my impressions. But I certainly wouldn't infer that the court believed that the fundamental right argument was an insufficient basis for deciding the case.

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For we know that our patchwork heritage is a strength, not a weakness. We are a nation of Christians and Muslims, Jews and Hindus -- and non-believers. -- Barack ObamaWe see monsters where science shows us windmills. -- Phat

Can't you just hear the abject terror in this guy's voice: From The Cedar Rapids Gazette.

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For we know that our patchwork heritage is a strength, not a weakness. We are a nation of Christians and Muslims, Jews and Hindus -- and non-believers. -- Barack ObamaWe see monsters where science shows us windmills. -- Phat

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and also that states don't have to recognize gay marriage licenses issued by other states a blatant violation of the Full Faith and Credit clause of the Constitution).

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I'd be curious to hear why DOMA violates the Full Faith and Credit Clause.The fact of the matter is that no state would be required by the Full Faith and Credit Clause to recognize a gay marriage from another state in the first place, so there didn't need to be a federal act that says so. What's more, the Supreme Court isn't bound by Congress's interpretation of the Full Faith and Credit Clause, and would be free to hold the exact opposite anyway.

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For we know that our patchwork heritage is a strength, not a weakness. We are a nation of Christians and Muslims, Jews and Hindus -- and non-believers. -- Barack ObamaWe see monsters where science shows us windmills. -- Phat

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Or am I missing something?

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You are missing something.There's a long established Full Faith and Credit Clause line of cases that hold that states do not have to accept acts from other states that go against the public policy of the recognizing state. For example, different states have different ages of consent or different rules for consanguinity for marriage. If I marry my first cousin in a state that allows such marriage then move to a different state where such marriages are prohibited, the state I move to does not have to recognize that marriage. Obviously this same reasoning would apply to gay marriage.

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The current Supreme Court is stacked with conservatives who are more likely to support DOMA.

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Not true. First, let me point out that 5 of the 6 who voted with the majority in Lawrence v. Texas are still there (Justice O'Connor replaced by Justice Alito). Although the Lawrence opinion specifically disassociated itself from any argument that it extended to the right to homosexual marriage, it's at least some evidence that those 5 Justices might be receptive to an argument.Second, the Court is hardly "stacked with conservatives."Nobody familiar with their voting records would call Breyer, Ginsberg, Souter or Stevens conservative. Kennedy is usually considered a "swing vote." He sometimes votes with the conservative bloc, sometimes with the liberal. As an example of his liberal positions, he wrote the majority opinion in Lawrence as well as in Romer v. Evans, both very important cases in gay rights jurisprudence.People who don't pay particular attention to the Court beyond noting who was appointed by whom often assume that since Kennedy, Souter and Stevens were appointed by Repugnantcans (Reagan, Bush I and Ford, respectively), they must be conservative. As President Eisenhower found out with C.J. Earl Warren, it doesn't work that way.

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For we know that our patchwork heritage is a strength, not a weakness. We are a nation of Christians and Muslims, Jews and Hindus -- and non-believers. -- Barack ObamaWe see monsters where science shows us windmills. -- Phat

Ahem....Topic, please. Thanks.

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For we know that our patchwork heritage is a strength, not a weakness. We are a nation of Christians and Muslims, Jews and Hindus -- and non-believers. -- Barack ObamaWe see monsters where science shows us windmills. -- Phat