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Author Topic:   Iowa Supreme Court strikes ban on same sex marriage
subbie
Member (Idle past 1255 days)
Posts: 3509
Joined: 02-26-2006


Message 1 of 38 (504845)
04-03-2009 3:05 PM


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

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 Obama
We see monsters where science shows us windmills. -- Phat

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Stagamancer
Member (Idle past 4916 days)
Posts: 174
From: Oregon
Joined: 12-28-2008


Message 2 of 38 (504848)
04-03-2009 4:14 PM
Reply to: Message 1 by subbie
04-03-2009 3:05 PM


I never I thought I'd see a day where Iowa showed to be more progressive than California. Nothing against Iowa, but it's just unexpected.

We have many intuitions in our life and the point is that many of these intuitions are wrong. The question is, are we going to test those intuitions?
-Dan Ariely

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kuresu
Member (Idle past 2513 days)
Posts: 2544
From: boulder, colorado
Joined: 03-24-2006


Message 3 of 38 (504849)
04-03-2009 4:18 PM
Reply to: Message 1 by subbie
04-03-2009 3:05 PM


Yeah, and this is Iowa. I may be wrong, but I never exactly thought of Iowa as, you know, revolutionary or counter-culture or groundbreaking or something like that. Certainly not the place, at any rate, to declare homosexual marriage bans unconstitutional.
Definitely good news.

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subbie
Member (Idle past 1255 days)
Posts: 3509
Joined: 02-26-2006


Message 4 of 38 (504850)
04-03-2009 4:20 PM


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.

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 Obama
We see monsters where science shows us windmills. -- Phat

  
New Cat's Eye
Inactive Member


Message 5 of 38 (504854)
04-03-2009 4:45 PM
Reply to: Message 3 by kuresu
04-03-2009 4:18 PM


I may be wrong, but I never exactly thought of Iowa as, you know, revolutionary or counter-culture or groundbreaking or something like that.
From the link in the OP, starting on page 17:
quote:
In the first reported case of the Supreme Court of the Territory of Iowa,
In re Ralph, 1 Morris 1 (Iowa 1839), we refused to treat a human being as
property to enforce a contract for slavery and held our laws must extend
equal protection to persons of all races and conditions. 1 Morris at 9. This
decision was seventeen years before the United States Supreme Court
infamously decided Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 15 L. Ed.
691 (1856), which upheld the rights of a slave owner to treat a person as
property. Similarly, in Clark v. Board of Directors, 24 Iowa 266 (1868), and
Coger v. North West. Union Packet Co., 37 Iowa 145 (1873), we struck blows
to the concept of segregation long before the United States Supreme Court’s
decision in Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98
L. Ed. 873 (1954). Iowa was also the first state in the nation to admit a
woman to the practice of law, doing so in 1869. Admission of Women to the
Bar
, 1 Chicago Law Times 76, 76 (1887). Her admission occurred three
years before the United States Supreme Court affirmed the State of Illinois’
decision to deny women admission to the practice of law, see Bradwell v.
Illinois
, 83 U.S. (16 Wall.) 130, 139, 21 L. Ed. 442, 445 (1873), and twentyfive
years before the United States Supreme Court affirmed the refusal of the
Commonwealth of Virginia to admit women into the practice of law, see
Ex parte Lockwood
, 154 U.S. 116, 118, 14 S. Ct. 1082, 1083, 38 L. Ed. 929,
930 (1894). In each of those instances, our state approached a fork in the
road toward fulfillment of our constitution’s ideals and reaffirmed the
absolute equality of all persons before the law as the very foundation
principle of our government.4 See Coger, 37 Iowa at 153.
From that, they seem to be fairly progressive.
I still haven't finished reading it yet though, so I'll save my comments until then.
But for now, congratulations are due to the gays so, Congratulations!

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Taz
Member (Idle past 3292 days)
Posts: 5069
From: Zerus
Joined: 07-18-2006


Message 6 of 38 (504855)
04-03-2009 5:12 PM


I'm not happy. The fact that so far the victories for equal rights have only been won in the courts makes me unhappy.

Replies to this message:
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Rahvin
Member
Posts: 4032
Joined: 07-01-2005
Member Rating: 9.2


Message 7 of 38 (504856)
04-03-2009 5:25 PM
Reply to: Message 6 by Taz
04-03-2009 5:12 PM


I'm not happy. The fact that so far the victories for equal rights have only been won in the courts makes me unhappy.
Take the victories you can. When the world doesn't collapse, and marriage is not "reduced" or changed in any way by allowing homosexuals to marry, public opinion will follow after.
Remember, the courts had to handle interracial marriage in Loving v. Virginia, too.
On another positive-ish note, Vermont's legislature is close to passing a bill authorizing marriage certificates for homosexual couples. Unfortunately, it looks like their governor may veto, and while the majority is strong, it's not strong enough to beat a veto. We'll have to see.
Still, that opinion is awesome. Take the time to read it - it does an excellent job of putting to shame nearly every anti-gay-marriage argument out there.
Now if only we in California could get our heads on straight again...
Oh...and Iowa doesn't have a residency requirement for marriages. Once this takes effect, gay couples can take a weekend trip to get legally married.

This message is a reply to:
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Replies to this message:
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Perdition
Member (Idle past 3238 days)
Posts: 1593
From: Wisconsin
Joined: 05-15-2003


Message 8 of 38 (504867)
04-03-2009 5:50 PM
Reply to: Message 2 by Stagamancer
04-03-2009 4:14 PM


I never I thought I'd see a day where Iowa showed to be more progressive than California.
Not quite, yet. The California courts ruled this type of discrimination unconstitutional, too. The anti-equality brigade forced a referendum, and the people rejected gay marriage. From what I've read, the opponents of this ruling are already moving for a similar vote in Iowa, so we shall see if IA becomes more progressive than CA. I may be jaded by now, but somehow I doubt IA will surprise us.

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lyx2no
Member (Idle past 4716 days)
Posts: 1277
From: A vast, undifferentiated plane.
Joined: 02-28-2008


Message 9 of 38 (504868)
04-03-2009 5:56 PM
Reply to: Message 5 by New Cat's Eye
04-03-2009 4:45 PM


All of Us
But for now, congratulations are due to the gays so, Congratulations!
But for now, congratulations are due to the Iowans, so, congratulations!

Genesis 2
17 But of the ponderosa pine, thou shalt not eat of it; for in the day that thou shinniest thereof thou shalt sorely learn of thy nakedness.
18 And we all live happily ever after.

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Rahvin
Member
Posts: 4032
Joined: 07-01-2005
Member Rating: 9.2


Message 10 of 38 (504869)
04-03-2009 6:52 PM
Reply to: Message 8 by Perdition
04-03-2009 5:50 PM


Not quite, yet. The California courts ruled this type of discrimination unconstitutional, too. The anti-equality brigade forced a referendum, and the people rejected gay marriage. From what I've read, the opponents of this ruling are already moving for a similar vote in Iowa, so we shall see if IA becomes more progressive than CA. I may be jaded by now, but somehow I doubt IA will surprise us.
California;s referendum was for an actual constitutional amendment, which is the only way to beat a Supreme Court ruling that a given law is unconstitutional. California's amendment process is ridiculously easy, requiring only a simple majority vote - it's literally easier to pass a constitutional amendment here by referendum than it is for the legislature to pass a yearly state budget, I shit you not. *
Iowa's amendment process is more than a little more complicated. They need to pass a proposed amendment through the legislature...and then wait two years and pass it through the next sitting legislature (somewhat like how Congress can only give the next sitting Congress a pay raise). After it has been passed by two consecutive legislatures, it then requires a majority vote from the citizenry (like the entirety of California's process).
This means that at minimum we're looking at two years of gay marriage in Iowa. That's a long time for people to "get used to it," and for public opinion to realize that the sky has not fallen. It also allows a lot of time for gays to get married (even from out of state), paving the way for federal challenges to DOMA (though I shudder at the thought of the current Supreme Court getting to rule on gay marriage), and making a lot of people personally invested in keeping gay marriage legal.
It looks like in Iowa, it may actually be more difficult to put the cat back in the bag.
* - This is the standard methodology for "normal" constitutional amendments in California. Amendments that modify existing portions of the constitution (like repealing a previous amendment) requires a 60% majority vote by the legislature before it can reach the people during a special election. Prop (h)8 didn't follow this process, and some are arguing to the California Supreme Court that, because (h)8 took away a right that the Supreme Court had previously rules was granted by the Constitution, the current results must be stricken, Prop (h)8 must be repealed, and the process needs to start over again correctly with a vote in the legislature (which would not likely pass). The Supreme Court is in the process of ruling on the legality of Prop (h)8, but it doesn't look good so far.
Passing a state budget in California requires a 2/3 majority in the legislature to pass. For some reason, this state believes that constitutional amendments should require a simply majority, and a yearly budget requires 2/3 of the legislature. Don't try to understand it, you'll get a headache.

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Replies to this message:
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kuresu
Member (Idle past 2513 days)
Posts: 2544
From: boulder, colorado
Joined: 03-24-2006


Message 11 of 38 (504870)
04-03-2009 6:58 PM
Reply to: Message 8 by Perdition
04-03-2009 5:50 PM


This ruling makes in unconstitutional on due process and equal protection.
The california ruling said that the statutes were unconstitutional because homosexual marriage was a fundamental right.
I would think the two courts are making two different arguments. Of course, I would have thought the bit about being a fundamental right would have been strong enough, but it seems it wasn't (although this probably plays a role in the current appeal against prop 8? that voters can't so easily re-write rights, that the process is more complex and difficult to achieve?).
Reading the Iowa constitutional amendment process, it looks to be more difficult to actually amend than in California.
Any amendment or amendments to this constitution may be proposed in either house of the general assembly; and if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment shall be entered on their journals, with the yeas and nays taken thereon, and referred to the legislature to be chosen at the next general election, and shall be published, as provided by law, for three months previous to the time of making such choice; and if, in the general assembly so next chosen as aforesaid, such proposed amendment or amendments shall be agreed to, by a majority of all the members elected to each house, then it shall be the duty of the general assembly to submit such proposed amendment or amendments to the people, in such manner, and at such time as the general assembly shall provide; and if the people shall approve and ratify such amendment or amendments, by a majority of the electors qualified to vote for members of the general assembly, voting thereon, such amendment or amendments shall become a part of the constitution of this state.
If I understand right, it has to be proposed and accepted in one legislative term, accepted again in the following term, and then is put to a vote before the people.
Doesn't mean it won't happen, but I don't see how this process can take any less than two years (they won't have a general assembly election until '10). And just where will we be in two years? Perhaps people will have seen that homosexual marriage doesn't actually destroy marriage, that it's not the end of the world, that it's actually not bad and is acceptable.
This is in contrast to California, where apparently all you need is enough people to sign your petition to put an amendment up for a vote in the upcoming election.

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subbie
Member (Idle past 1255 days)
Posts: 3509
Joined: 02-26-2006


Message 12 of 38 (504873)
04-03-2009 7:24 PM
Reply to: Message 11 by kuresu
04-03-2009 6:58 PM


quote:
This ruling makes in unconstitutional on due process and equal protection.
The california ruling said that the statutes were unconstitutional because homosexual marriage was a fundamental right.
I would think the two courts are making two different arguments.
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.

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 Obama
We see monsters where science shows us windmills. -- Phat

This message is a reply to:
 Message 11 by kuresu, posted 04-03-2009 6:58 PM kuresu has not replied

  
subbie
Member (Idle past 1255 days)
Posts: 3509
Joined: 02-26-2006


Message 13 of 38 (504874)
04-03-2009 7:48 PM


Can't you just hear the abject terror in this guy's voice:
"Our worst fears have been realized," said U.S. Rep. Steve King, R-Kiron, who helped write the 1998 Defense of Marriage Act while he was a state senator in the Iowa Legislature.
"It turns immediately Iowa into the Mecca for same-sex marriages a destination state," King said while appearing on a WHO-AM radio talk show. "There will be weekend packages that are being planned right now. It will be the Las Vegas of same-sex marriage for America if the Legislature doesn't act now."
From The Cedar Rapids Gazette.

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 Obama
We see monsters where science shows us windmills. -- Phat

  
Taz
Member (Idle past 3292 days)
Posts: 5069
From: Zerus
Joined: 07-18-2006


Message 14 of 38 (504877)
04-03-2009 9:13 PM
Reply to: Message 7 by Rahvin
04-03-2009 5:25 PM


Rahvin writes:
Take the victories you can. When the world doesn't collapse, and marriage is not "reduced" or changed in any way by allowing homosexuals to marry, public opinion will follow after.
Currently, there are only 3 states that allow gay marriage. That versus 40 states that have a ban on gay marriage. Out of those 40, 13 have a ban on anything remotely resemble marriage, including civil union.
And you're telling me to not be unhappy?
Remember, the courts had to handle interracial marriage in Loving v. Virginia, too.
Yeah, and the same black folks who fought so hard for equality are now fighting just as hard if not harder against gay rights.
Still, that opinion is awesome. Take the time to read it - it does an excellent job of putting to shame nearly every anti-gay-marriage argument out there.
Putting to shame to those arguments only in our heads. This is like us patting on each other's backs. If the religious don't get it, the opinion ain't matter.
Oh...and Iowa doesn't have a residency requirement for marriages. Once this takes effect, gay couples can take a weekend trip to get legally married.
Somehow, I have a feeling Iowa will have it's own version of prop 8. Then all the corns will go out and vote for it because corns are straight.

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Rahvin
Member
Posts: 4032
Joined: 07-01-2005
Member Rating: 9.2


Message 15 of 38 (504878)
04-03-2009 9:38 PM
Reply to: Message 14 by Taz
04-03-2009 9:13 PM


Currently, there are only 3 states that allow gay marriage. That versus 40 states that have a ban on gay marriage. Out of those 40, 13 have a ban on anything remotely resemble marriage, including civil union.
And you're telling me to not be unhappy?
I'm telling you to take solace in the fact that progress is being made. It can't possibly be fast enough, because the situation shouldn't exist in teh first place. But it takes time to fight bigotry, and this is a victory even if it's not the way you'd prefer to see it.
Further, Iowa was one of those states banning gay marriage until now. The bigots are slipping. That's a good thing, no matter how you slice it.
Yeah, and the same black folks who fought so hard for equality are now fighting just as hard if not harder against gay rights.
Bigotry isn't limited to any race. It's sad, it's hypocritical, it's infuriating, and it's wrong, but the point remains - the supreme court (both at the state and federal level) exists to protect the constitutional rights of the minority from a bigoted majority. Don't be too terribly upset when bigoted laws are struck down by the governmental branch tasked with doing exactly that.
Putting to shame to those arguments only in our heads. This is like us patting on each other's backs. If the religious don't get it, the opinion ain't matter.
This is true, but it's still good to see that people like supreme court judges (in Iowa!) get it.
Somehow, I have a feeling Iowa will have it's own version of prop 8. Then all the corns will go out and vote for it because corns are straight.
Again, it will be 2 years at absolute minimum before Iowa can pass a constitutional amendment a la Prop (h)8. That's a long delay, and that works to our advantage. They can't use the argument that "we're not taking away a right, we're just defining marriage," because they'll be taking away a right that gays have had for two years. The amendment will need to go through a lot more red tape to be passed than Prop (h)8 did (and the California legislature would never have passed the thing, either). Two years will remove the sense of urgency the bigots exploited with Prop (h)8. The bigots aren't going to go away, but I think our chances are better in Iowa. I think there's cause to be optimistic.

This message is a reply to:
 Message 14 by Taz, posted 04-03-2009 9:13 PM Taz has replied

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