Marriage Equality in Iowa

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36 Responses

  1. A.W. says:

    At the very least, a constitutional innovation should pass the very easy test set out in Dartmouth College v. Woodward:

    > It is not enough to say, that this particular case was not in the mind of the convention, when the article was framed, nor of the American people, when it was adopted. It is necessary to go further, and to say that, had this particular case been suggested, the language would have been so varied, as to exclude it, or it would have been made a special exception.

    This doesn’t pass that test. Everyone know that if the framers had any inkling that such a ridiculous interpretation of their constitution might occur, they would have rewritten it to avoid that interpretation.

    This is not law, but judicial lawlessness. And it needs to stop.

    And this is not about gay marriage specifically, but a judiciary that recognizes no limitations on its power.

    You would have thought that after proposition 8 in Cal., they would have gotten the message. if gay marriage is going to become the law of the land, it has to happen at the ballot box and not by judicial fiat.

  2. Jones says:

    Writing a generation after the framing, Dartmouth’s rule made some sense. Holding to it now would produce a number of results much more “ridiculous” than allowing gays to marry.

  3. Orin Kerr says:

    Sonja,

    I’m interested in your choice of labels. You label the position that same-sex marriage is not constitutionally compelled by the Iowa Constitution as the position of “marriage exclusion,” and the position that the Iowa Constitution compels same-sex marriage as the position of “marriage equality.”

    I’m curious, did you come up with these labels? And any idea what folks on the other side use as labels?

  4. Sonja Starr says:

    Hi Orin,

    “Marriage equality” is in pretty common use among advocates of same-sex marriage–I think it is intended to emphasize that this is a civil rights issue that everyone should care about, and not just a “gay issue.” I’m not sure whether I made up “marriage exclusion” or heard it somewhere else, to be honest, but I just Googled the phrase right now and it seems Lambda Legal uses it as well. As I used it here, though, I would define “marriage exclusion” as “the law defining marriage to exclude same-sex couples,” or “the exclusion of same-sex couples from marriage,” not as “the position that same-sex marriage is not constitutionally compelled by the Iowa Constitution.” When defined that way, I think, the choice of the phrase “marriage exclusion” seems to be a pretty straightforwardly descriptive shorthand. (The difference between the two meanings isn’t trivial, as it would certainly be possible to be opposed to marriage exclusion as a policy matter but not agree that marriage exclusion violated the Iowa constitution.)

    Opponents of same-sex marriage often refer to their position as the “traditional marriage” position. Clearly, both sides are trying to allude to positive values–equality vs. tradition–much the way advocates on each side of the abortion debate refer to “choice” and “life.” In my view, the best argument against the “traditional marriage” language is that same-sex marriage advocates are not aiming to disrupt any traditional marriages or the institution of traditional marriage (at least beyond the tradition of exclusion of gays and lesbians). Indeed, the idea is to include gays and lesbians in something that is highly traditional: public commitment to a lifelong, monogamous, loving relationship.

  5. Orin Kerr says:

    Thanks for the explanation, Sonja. I suppose it was inevitable that each side would have labels that frame their side as good and the other side as bad (as in abortion, as you say).

  6. Kyle Payne says:

    I would add to Sonja’s comment, in response to Orin, that the Iowa Supreme Court made clear in its opinion that “some underlying reason other than the preservation of tradition must be identified” in order to uphold the 1998 Defense of Marriage Act. In other words, support of “traditional marriage,” without some compelling state interest that will be further by excluding gays and lesbians, doesn’t carry much weight legally.

    I don’t see anything problematic about the terms “marriage equality” or “marriage exclusion.” Both terms recognize, as the Iowa Supreme Court did, that same-sex couples are similarly situated as heterosexual couples but have not been afforded the same protections under the law. Rhetoric on the other side has suggested that “traditional marriage” ought to be protected for its own sake. But until some legal argument can be advanced that justifies the exclusion of gays and lesbians (e.g. that gays and lesbians pose any actual threat to marriage), I don’t see the point in using it.

    I don’t think the rhetoric of “protecting traditional marriage” is simply biased (and on some level, true). That side of the debate has not provided any evidence to explain how excluding gays and lesbians protects opposite-sex marriage.

  7. Jesus Christ says:

    I don’t think the rhetoric of “protecting traditional marriage” is simply biased (and on some level, true). That side of the debate has not provided any evidence to explain how excluding gays and lesbians protects opposite-sex marriage.

    That might be because “that side of the debate” does not care about excluding gays and lesbians, it just so happens that the traditional definition only covers what it covers and they are concerned with preserving that. Certainly the traditional definition was not anti-gay when it first came into being; preserving that definition need not be about exclusion, either, yet Joe Q. Public’s fidelity to tradition somehow becomes an excuse to call him an exclusionary bigot. One could just as easily call SSM proponents “pro-anarchy, pro-Derrida, postmodernist, Marxist, antidemocratic elitists”. But you don’t see that in the pro-family values discourse amongst educated professionals. That’s the point; one side of the debate seems more interested in name-calling and public shaming than the other. Ironic.

  8. Kyle Payne says:

    Jesus,

    First of all, what an honor!

    I am not privy to all the discussions on the pro-SSM side of things, but I don’t know anyone who refers, explicitly or implicitly, to opponents of SSM as “exclusionary bigots.” I certainly do not use that language, and I would not support others doing so. Furthermore, I think we can both agree that such name-calling is inappropriate on either side.

    Also, in relation to your comment about protecting “traditional marriage,” I don’t think it’s relevant, legally or morally, whether or not exclusion is intentional. I would not have expected the Iowa Supreme Court to change their opinion because the straight folks in the room said, “It’s not our intent to keep gays and lesbians from getting married.” The effect is exclusion, and that’s what matters.

    I appreciate that there are people who believe marriage ought to exclude same-sex couples – and as you mentioned, some folks don’t care (yet maintain an anti-SSM position?). I don’t take issue with their right to understand marriage on their own terms, or their “right to not care,” but I do expect people to demonstrate a compelling state interest in excluding gays and lesbians from marriage, if they expect the courts to uphold such a law.

  9. Quidpro says:

    The people of Iowa, through their elected representatives, passed a law that defines marriage as between one man and one woman. It applied to all citizens of the state regardless of gender or “sexual orientation”. It certainly did not prevent homosexuals from entering into marriage as traditionally understood, provided they marry individuals of the opposite sex. As is the case with heterosexuals.

    Now the state supreme court has ruled that the definition of marriage is discriminatory. How odd. The proponents of same sex “marriage” insist that all must use their definition.

    Notice that this case is not about discrimnation. The plaintiffs were not complaining against discrimination in the work place or in public accommodations. Nor were they complaining that their same-sex “unions” were prohibited by the state. Apparently they enjoyed the right to become foster parents and adoptive parents. Rather the point of their lawsuit was to compel the state and its residents to adopt their new definition of marriage.

    Changes to school textbooks and religious ceremonies cannot be far behind. Welcome to the brave new world!

  10. A.W. says:

    Jones,

    What is the point of having a constitution, if you don’t care at all that it be followed?

    it would make more sense to swich to the british sysem, with a non-binding, unwritten constitution, and the legislature getting whatever the hell it wants.

  11. Jesus Christ, Back Again says:

    Kyle,

    Given the lack of connection between actual discrimination (employment, housing, education, property holding) and the traditional definition of marriage, there seems little reason why the burden should be on supporters of the traditional definition of marriage to prove it is more beneficial than some other form of state-subsidized social arrangement. The burden should be on you to show why it ought to be mandatory for the state to provide unauthorized subsidies to nontraditional unions and the best you have, apparently, is claiming that it is “unequal”. Of course, that is true for anyone who loses in an Equal Protection Clause argument in any state when the argument is made on rational-basis scrutiny. Every loser in court says what he’s litigating about is unjust; that’s why he filed a lawsuit! That doesn’t mean the courts ought to jack up the scrutiny when optometrists sue opthamalogists and order the state to treat them the same because “both professions have social value and benefit human beings with eyes”. Especially seeing as the blind might object to being left uncovered by such a judicial opinion. The humanity! “I feel excluded” is not a legal argument; it’s the whine of someone who wasn’t invited to the party with all the cool kids. When I throw a party, I most certainly do not invite anyone who would sue about there being an inequitable distribution of salsa and chips and inadequate restroom facilities for the disabled. And, yes, I would like to preserve my “right not to care.” It is called individual liberty and this nation was founded on it.

  12. Jesus Christ, Back Again says:

    Kyle,

    Given the lack of connection between actual discrimination (employment, housing, education, property holding) and the traditional definition of marriage, there seems little reason why the burden should be on supporters of the traditional definition of marriage to prove it is more beneficial than some other form of state-subsidized social arrangement. The burden should be on you to show why it ought to be mandatory for the state to provide unauthorized subsidies to nontraditional unions and the best you have, apparently, is claiming that it is “unequal”. Of course, that is true for anyone who loses in an Equal Protection Clause argument in any state when the argument is made on rational-basis scrutiny. Every loser in court says what he’s litigating about is unjust; that’s why he filed a lawsuit! That doesn’t mean the courts ought to jack up the scrutiny when optometrists sue opthamalogists and order the state to treat them the same because “both professions have social value and benefit human beings with eyes”. Especially seeing as the blind might object to being left uncovered by such a judicial opinion. The humanity! “I feel excluded” is not a legal argument; it’s the whine of someone who wasn’t invited to the party with all the cool kids. When I throw a party, I most certainly do not invite anyone who would sue about there being an inequitable distribution of salsa and chips and inadequate restroom facilities for the disabled. And, yes, I would like to preserve my “right not to care.” It is called individual liberty and this nation was founded on it.

  13. Kyle Payne says:

    Quidpro,

    I would like to add a clarification to your comment on the “right” for gays and lesbians to marry, provided that they marry someone of the opposite sex.

    The Iowa Supreme Court concluded the following:

    “It is true the marriage statute does not expressly prohibit gay and lesbian persons from marrying; it does, however, require that if they marry, it must be to someone of the opposite sex. Viewed in the complete context of marriage… the right of a gay or lesbian person under the marriage statute to enter into a civil marriage only with a person of the opposite sex is no right at all.”

    There were obviously other arguments to establish to justify overturning the DOMA – e.g. that same-sex couples are “similarly situated” as opposite-sex couples, as well as that sexual orientation is central to a person’s identity – as the plaintiffs did to demonstrate an equal protection violation. But I think the opinion speaks for itself, without me quoting or paraphrasing extensively from it.

    Also, it is worth noting that we’re not talking about a long-standing marriage statute (supporting “traditional” marriage) in Iowa that was overturned. It was only on the books for twelve years. So, the concepts of “old” or “traditional” and “new” are somewhat misleading – this entire legal debate in Iowa is relatively new.

    As for changes to school textbooks and religious ceremonies, I have my doubts. But if there are serious concerns about implications of the recent decision, it would be helpful for us to be clear and specific about them. Otherwise, we run the risk of pushing “scare tactics” and bypassing scrutiny altogether.

  14. Quidpro says:

    Yes, Kyle, the law overturned in Iowa was of recent vintage, passed in 1998. But certainly we both know why it was enacted. The legal debate is new because prior generations all recognized marriage, by definition, as between individuals of the opposite sex. The fact that the Iowa legislature passed the 1998 marriage law illustrates how successful the homosexual activists had become by 1998.

    The section of the opinion you quote nicely illustrates my point. I have no right to obtain a dog license for my cat. She really thinks she is a dog. To tell her that she has the right to obtain a cat license is really no right at all. Perhaps the state supreme court will change the definition of “dog” to include felines. After all it is discriminatory to deny her that “right”.

    Finally, let me clarify the concerns I expressed about the implications of the Iowa decision. As already stated the decision is not about overturning a discriminatory law. It is about political correctness. Prior to Friday’s decision, the Plaintiffs, and their friends and family, had the right to use the term “marriage” for their “unions”. Others could recognize them as such. Or not. Now, through the coercive power of law, all must recognize such unions as “marriages”. The thought police have arrived.

  15. Kyle Payne says:

    Quidpro,

    I will leave the cats and dogs metaphor alone, except to point out that we are dealing with two separate questions about same-sex marriage, a legal one and a cultural (and mostly religious) one. The state can protect the rights of gays and lesbians (and certainly other groups) without endorsing a particular lifestyle and “enforcing” homosexuality in any fashion.

    The language of “force” and “coercion” in this context seems out of place. I fail to see, despite the abundance of conservative rhetoric on the subject, what disadvantage or burden, or even direct impact, same-sex marriage has on heterosexual couples, or heterosexuals in general. Besides a conceptual “recognition” (a la “thought police”) what effect does the Iowa Supreme Court decision have on heterosexuals?

  16. A.W. says:

    Well, here let me throw a rhetorical grenade into the middle of this discussion.

    Given the Iowa Supreme Court’s reasoning, suppose two brothers wanted to marry each other. Can they? And if not, why not?

    And let’s note a few things. First, obviously you can’t say because they would have handicapped children, because they won’t have childen.

    But if you argue that moral condemnation of the relationship is enough, you need to explain why moral condemnation of gay relationships are not enough too. Saying, “being gay is natural and normal but gay incest is icky” is not a solid constitutional principle.

    Here’s a hint: you can’t ban gay incest without allowing for the banning of gay relationships, at least not from a constitutional approach.

  17. A.W. says:

    And don’t say “no one is talking about that.” Inevitably some freaks will want to do that and the courts will have to have an answer to that question.

  18. Jake says:

    Lenin would approve of Kyle’s political views. Both fear democracy.

  19. Kyle Payne says:

    A.W.,

    I’m really not in a position to assess the legality of two brothers marrying each other (or marriage between family members generally). While there are elements of the reasoning in Varnum v. Brien that are applicable, I am not the slightest bit familiar with how the courts have handled this sort of issue in the past (or how they might in the future). Perhaps others will comment.

    But, simply based on the way you’ve framed the issue here, I don’t immediately see a legal objection to marriage between family members (I am hesitant to say “incestual” since that word refers solely to sexual relations). But as I said, I don’t know.

    Just so we’re on the same page, this particular “rhetorical grenade” does not represent a sufficient argument against legalizing same-sex marriage. You don’t appear to be employing it as such, but others certainly have.

  20. A.W. says:

    Kyle,

    If your analysis of the issue says we can’t stop two brothers from marrying, then isn’t that a sign that something has gone seriously, seriously wrong in our legal analysis?

    The answer is that moral approbrium is a rightful reason to prevent a marriage, but guess what? then that means that gay marriage can be banned, too.

    Really, the hubris here is stunning. Gay marriage couldn’t even survive in California. If there was one state in the union that would have supported it, in a year where democrats and liberals were doing well in every election, gay marriage lost. What does that tell you?

    It tells you that the courts have gone too far, and that they need to stop this suicidal course.

  21. Kyle Payne says:

    A.W.,

    To your question on something going seriously wrong with legal analysis in Varnum v. Brien, the short answer is, “No.” My off-the-cuff “analysis” of your previous question about marriage between family members is not, by any stretch of the imagination, a “legal analysis” or a substitute for a judicial opinion.

    The slippery slope argument you’ve begun to make (in reference to two brothers marrying), as I said before, does not counter the Iowa Supreme Court opinion on same-sex marriage. In fact, it doesn’t even attempt to engage the reasoning in that opinion.

    Secondly, whether or not a practice survives in a particular state is no indication as to its legality or morality. And that is probably why the defense in Varnum v. Brien never said, “C’mon, Judge, it didn’t work in California. What does that tell you?”

    And should I even ask why you think declaring a ban on same-sex marriage as unconstitutional is suicidal?

  22. A.W. says:

    Kyle

    To tar this as a simple “slippery slope” argument missing the point. In law, we reason from precedent. One decision opens the door to the next and the next, and there are correct and incorect methods of legal reasoning.

    So if you are going to say it is okay for the courts to innovate the iowa constitution to force gay marriage on the populace, you have to come up with a principled reason why gay incestuous marriage is not. Or fall into my real argument, the reductio ad absurdem.

    That’s how courts work. The people, via their consitution or legislation, can say “A is icky, but B is not.” that is fine, no slipping down any slope. But courts can’t. Courts have to work from general principles. they have said that tradition and moral approbrium is not good enough to uphold a ban on gay marriage. then how could it be good enough to uphold a ban on gay incestuous marriage.

    Of course the iowa courts won’t do anything half that crazy, and that is my point. What they did was legislative, not judicial, reasoning. Period. And that is itself lawless.

    There is not a single right written in the constitution safe from that sort of activism.

  23. Kyle Payne says:

    A.W.,

    I think we can agree that the Iowa Supreme Court decision on same-sex marriage may open the door to legal challenges to laws prohibiting incestuous marriage, polygamy, etc. But since we are dealing with different legal questions (demanding different analyses and levels/types of scrutiny), that’s about all we can say.

    In other words, Varnum v. Brien overturned a ban on same-sex marriage, not a ban on anything else. In the future, an Iowa court could determine a legal basis to uphold laws against incestuous marriage without refuting the Varnum v. Brien opinion. Or they could overturn such laws. Or, in some bizarre turn of events, they could determine, upon further investigation, that Varnum v. Brien was wrong (and they just didn’t realize it until considering very loosely related cases).

    In any event, it’s not as if the judicial branch does not have systems in place to resolve these disputes. It’s what they do.

    The danger of the “slippery slope” argument you have presented – and yes, that’s what it is – is that it expedites the whole process,suggesting that we can’t decide one case without simultaneously deciding all the hypothetical others. In this case, your argument assumes little or no logical distinction between same-sex marriage and scenarios like incestuous marriage, polygamy, pedophilia, etc. And that’s simply incorrect – and as gay rights activists have pointed, a wee bit offensive.

  24. Kyle Payne says:

    A.W.,

    I think we can agree that the Iowa Supreme Court decision on same-sex marriage may open the door to legal challenges to laws prohibiting incestuous marriage, polygamy, etc. But since we are dealing with different legal questions (demanding different analyses and levels/types of scrutiny), that’s about all we can say.

    In other words, Varnum v. Brien overturned a ban on same-sex marriage, not a ban on anything else. In the future, an Iowa court could determine a legal basis to uphold laws against incestuous marriage without refuting the Varnum v. Brien opinion. Or they could overturn such laws. Or, in some bizarre turn of events, they could determine, upon further investigation, that Varnum v. Brien was wrong (and they just didn’t realize it until considering very loosely related cases).

    In any event, it’s not as if the judicial branch does not have systems in place to resolve these disputes. It’s what they do.

    The danger of the “slippery slope” argument you have presented – and yes, that’s what it is – is that it expedites the whole process,suggesting that we can’t decide one case without simultaneously deciding all the hypothetical others. In this case, your argument assumes little or no logical distinction between same-sex marriage and scenarios like incestuous marriage, polygamy, pedophilia, etc. And that’s simply incorrect – and as gay rights activists have pointed, a wee bit offensive.

  25. Kyle Payne says:

    A.W.,

    I think we can agree that the Iowa Supreme Court decision on same-sex marriage may open the door to legal challenges to laws prohibiting incestuous marriage, polygamy, etc. But since we are dealing with different legal questions (demanding different analyses and levels/types of scrutiny), that’s about all we can say.

    In other words, Varnum v. Brien overturned a ban on same-sex marriage, not a ban on anything else. In the future, an Iowa court could determine a legal basis to uphold laws against incestuous marriage without refuting the Varnum v. Brien opinion. Or they could overturn such laws. Or, in some bizarre turn of events, they could determine, upon further investigation, that Varnum v. Brien was wrong (and they just didn’t realize it until considering very loosely related cases).

    In any event, it’s not as if the judicial branch does not have systems in place to resolve these disputes. It’s what they do.

    The danger of the “slippery slope” argument you have presented – and yes, that’s what it is – is that it expedites the whole process,suggesting that we can’t decide one case without simultaneously deciding all the hypothetical others. In this case, your argument assumes little or no logical distinction between same-sex marriage and scenarios like incestuous marriage, polygamy, pedophilia, etc. And that’s simply incorrect – and as gay rights activists have pointed, a wee bit offensive.

  26. Jimbino says:

    I can’t wait until the courts decide that the rights of the childfree and of singles are violated by our nation’s pro-natal and pro-marriage tax, immigration and other policies.

  27. JakeD says:

    Kyle:

    Did you mean to post that three times? Is that analogous to denying Jesus Christ?

  28. A.W. says:

    Kyle

    I have to admit I am stunned by this line:

    > Or, in some bizarre turn of events, they could determine, upon further investigation, that Varnum v. Brien was wrong (and they just didn’t realize it until considering very loosely related cases).

    And that would be okay with you? “We thought it was in the constitution, but we realize we goofed.” Stunning.

    > In any event, it’s not as if the judicial branch does not have systems in place to resolve these disputes.

    Yes, if you pretend that the constitution is merely a suggestion, a starting point that the courts can overturn like a precedent. But if you think it is supposed to mean something, then there is a problem.

    > The danger of the “slippery slope” argument you have presented – and yes, that’s what it is

    Not at all. Its an application of precedent argument and a reduction ad absurdum argument. We the people can say in an unprincipled way, gay relationships are okay, but incest is icky. But courts cannot. And the reasoning they have offered in allowing gay relationships would allow for gay incestuous relationships.

    > we can’t decide one case without simultaneously deciding all the hypothetical others.

    No, but courts must reason from principle, and there is no principled distinction you can draw between the two. You just don’t want to admit that you are reduced to an absurdity, that gay incest is not only okay, but that rule is a constitutional requirement!

    > In this case, your argument assumes little or no logical distinction between same-sex marriage and scenarios like incestuous marriage, polygamy, pedophilia, etc. And that’s simply incorrect

    Straw man. I didn’t talk about hetero incest, polygamy or pedophilia. I talked about one subject: gay incest.

    The fact is you have all but admitted they are making it up as they go along. But it is not their job to make up new constitutional rights: that is the people of Iowa’s job. This is about something much, much more than just gay marriage, which seems to be your hobby horse here. this is about whether we are a nation of men or a nation of laws. To say it is okay for the Supreme Court of Iowa to just make shit up is to say we are not a nation of laws.

    But then, we haven’t been one for a while. But some of us are not conceding this fight as lost.

    [by the way, if you post, don’t hit “refresh” or you will accidentally repost it over and over again.]

  29. JakeD says:

    A.W.:

    I agree with you, but any time you bring “incest” into the mix, there’s going to be an issue about full and free consent. I have a really bad feeling that Scalia’s prediction in his dissent from Lawrence v. Texas is going to turn out dead on.

  30. JakeD says:

    Perhaps a better analogy is that HETEROSEXUAL brothers can’t be denied legal “marriage” rights in Iowa now either.

  31. A.W. says:

    Jake, no, Scalia’s prediction is going to turn out wrong, because here is the reality: there is no principle at work here. Which will save us from the really crazy stuff. But that is just it: it isn’t principled. It isn’t what courts are supposed to do.

    In short i am saying, don’t worry. they are unprincipled, they are disrespecting of the limits of their power, but they ain’t crazy.

    Besides i predict that by 2012, just in time for the next presidential election, Iowa will vote to fix its constitution back to its original intent. and maybe for once the arrogant judiciary will be chastened. one can hope.

  32. Kyle Payne says:

    A.W.

    My point was simply that the courts need to consider one case at a time and not treat same-sex marriage and incestuous marriage as the same issue. After all, same-sex marriage bears no more significance to the issue of incestuous marriage than opposite-sex marriage (i.e. Varnum v. Brien merely expands the debate to include family members of the same sex). Yet we only seem to get caught up in slippery slope arguments when gays and lesbians are under scrutiny.

    Really, if you’re so skeptical about principled arguments for marriage that raise questions about incestuous marriage, I would expect you to argue against marriage for anyone.

    It was not necessary for the Supreme Court to base their decision about same-sex marriage on what it may or may not imply about incestuous marriage because, again, that is a separate question (and one that is not by any means resolved by Varnum v. Brien). Perhaps we can agree to disagree on this point.

  33. JakeD says:

    I don’t “worry” about anything, and doubt that Scalia does either, but I still think his dissent in that case will prove prescient.

  34. A.W. says:

    Kyle

    > My point was simply that the courts need to consider one case at a time

    So… they shouldn’t avoid reducing themselves to absurdity, or forcing themselves to make an unprincipled distinction?

    > After all, same-sex marriage bears no more significance to the issue of incestuous marriage than opposite-sex marriage

    Not at all. To overrule the Iowa DOMA they had to say that from now on moral opprobrium is not sufficient to stop a pairing. They kicked the chair out from under the precedents that would prevent incestual matings. After all, most states that ban incest ban it between people related by marriage and adoption, too. That is, Greg Brady can’t marry Marsha Brady in most states, even though they have no genetic relationship. It’s a common myth that all of this is about the fear of handicapped children (I’ve been glossing over this point before); this is about the belief that the relationship is psychologically unhealthy. By if they say it is the legislature’s determination that it is unhealthy for a step-brother to marry his step-sister, or for two genetic brothers to marry, and that is upheld based on that determination, then why can’t the legislature similarly say the same thing about all gay relationships?

    Now, then the natural response would be to say, “why can’t they use the same logic to ban interracial relationship?” The answer is that there is some good reason that the issue of interracial relationships was exactly on the framers minds. Thaddeus Stevens was almost certainly in love with his “black” housekeeper Lydia Smith; and was radically egalitarian enough to be buried in a desegregated cemetery. Lincoln, mockingly said that Stephen Douglas needed a law to prevent him from marrying a black woman (not one of his finest hours). And anti-Fourtheenth-Amendment demagogues claimed it would force white women to marry black men. If the framers of the amendment thought it had no impact on marriage one way or the other, you would have expected them to say that. instead they said, more or less, this won’t FORCE anyone to marry anyone else. It’s the classic dog that didn’t bark argument.

    But you can’t say that gay marriage was on their radar that way. Indeed these evangelical Christians hated gay people pretty vehemently and the only limitation on their expression of their hatred was their utter lack of concern for the issue. I can assure you that the founders would have been floored to hear that their amendment was seen as impacting the issue at all.

    > Really, if you’re so skeptical about principled arguments for marriage that raise questions about incestuous marriage, I would expect you to argue against marriage for anyone.

    Not at all. The courts should have given into the legislature and their right to determine what relationships were healthy. I guess theoretically that means you could ban straight marriage, but of course we know that will never happen. So the principle argument to make is for legislative deference here, but of course you can’t support that because then that means your side loses. And its all about winning at any cost for the left these days.

  35. Kyle Payne says:

    Okay, A.W., a couple final questions (I hope) before I assume we will agree to disagree and free up some space for others to discuss.

    In precisely what way does Varnum v. Brien pave the way for incestual marriage that “traditional,” opposite-sex marriage does not?

    In other words, what is it about allowing same-sex marriage and upholding a ban on incestual marriage that indicates an “unprincipled distinction,” whereas allowing opposite-sex marriage and banning incestual marriage does not pose a problem?

    I assume, from what you’ve said thus far, that you are classifying homosexuality as immoral, and then suggesting that it then opens the door to further immorality (?). What is the basis for this moral interpretation, and why do you think the Iowa Supreme Court disagrees?

  36. A.W. says:

    Kyle

    > In precisely what way does Varnum v. Brien pave the way for incestual marriage that “traditional,” opposite-sex marriage does not?

    Easy. The Iowa Supreme Court, prior to Varnum, respected the judgments of the voters on what relationships are healthy. Post varnum, they don’t.

    See, if the Iowa Supreme Court was deferential to the judgment of the people, that would be the principled distinction (deference), but it would prevent gay marriage, too. Of course the people would arguably be unprincipled, but that is their right. the people can make distinctions the courts cannot.

    > I assume, from what you’ve said thus far, that you are classifying homosexuality as immoral

    No, I said nothing more than that the voters of Iowa felt it was unhealthy.