The Dawning of a New Gay


Within the last week we have seen two incredibly startling advances towards equal rights for gay and lesbian citizens of the U.S.A. On April 3, 2009, the Iowa Supreme Court upheld a District Court decision that the Iowa ban on same-sex marriages violated the 4th Amendment of the Constitution, the equal-protection and due process clauses. And today, the Vermont State Legislature overrode the Republican governor’s veto to become the first state in the U.S.A. to grant marriage rights to same-sex couples in Vermont through legislative process. A high court and both houses of a state legislature have seen through the traditional bigotry that has kept gay and lesbian citizens under the bus of full citizenship.

The decision of the Iowa Supreme Court is particularly enlightening, because its carefully reasoned case not only cannot be ignored, but also will stand as a beacon of clear thinking about this central issue. After having studied that decision carefully, I would like to offer a summary and a brief reflection.

Long Iowa judicial history of equal protection cases

Several commentators have noted that this decision emerges out of a more-than-century-old tradition in the Iowa judicial system of striking down denials of equal protection across a range of issues, including slavery (1839), segregation (1868,73), and admission of women to the bar (1887). The full Iowa Court decision on Friday reaffirmed the  “absolute equality of all” persons before the law as the very foundation principle of our government, and set this decision against these earlier “forks in the road.”

Are the plaintiffs’ charges worthy of consideration?

Attorneys for Polk County had offered the argument that since same-sex couples cannot procreate, they are not similarly situated as heterosexual couples. This consideration was offered as a test of whether the case should even be considered as a violation of the equal protections clause (threshhold test). The Court, however, rejected this argument, saying rather that the plaintiffs were, in fact, similarly situated, in requesting official recognition of [their] committed relationships as an institutional basis for defining their fundamental relational rights and responsibilities.

The Court next stated that since the law clearly targets gay and lesbian people as a class, they were going to apply the so-called “Intermediate Scrutiny Standard” to judging whether or not these same-sex couples were being denied equal protection of the law. This higher level of judicial caution was necessary, they said, for four reasons: 1) that gay and lesbian people have long been the victim of purposeful and invidious discrimination because of their sexual orientation, 2) there is no evidence that homosexuality prevents a person from contributing to society, 3) that requiring individuals to alter their sense of personal identity as homosexuals would result in significant damage to the individuals’ sense of self, and 4) despite advances, homosexuals have not been completely able to overcome the unfair and severe prejudice that produces discrimination against them.

Does the ban serve a legitimate government objective?

Having decided that the six same-sex couples’ petition was sufficiently serious to be held to the intermediate scrutiny standard, the Iowa Supreme Court considered six possible reasons why a ban on same-sex marriage could serve a legitimate government objective. Five of these reasons were offered by Polk County: they were 1) maintaining tradition, 2) providing better parenting for children, 3) encouraging procration, 4) promoting stability in opposite-sex relationships, and 5) conserving state resources.

It is my opinion that the Court’s carefully reasoned response to Polk County’s reasons for denying same-sex marriage will serve as a benchmark for the other similar cases which will surely continue to emerge over the next few years. I would recommend that you read either the summary or the full case. Nevertheless, I will briefly summarize these arguments here. The Court argued that there needed to be an additional reason other than maintaining tradition for this ban, especially in light of the intermediate scrutiny standard. Regarding providing quality parenting for children, the law was found to be both over-inclusive and under-inclusive for achieving that governmental purpose. In other words, it included some bad parents (among the heterosexuals) and banned some good parents (among the potential same-sex couples). Finally, the Court found in the County’s arguments none that would show how banning same-sex couples from civil marriage would encourage procreation, promote stability in opposite-sex marriages, or conserve resources. Resources could certainly be conserved by banning others, such as child-abusing individuals, yet this law seemed to target only those with a certain sexual orientation.

Separation of church and state

The another possible reason motivating a ban on same-sex marriage might rest on religious considerations. The Court noted both that people with deeply held religious convictions objected to same-sex marriage and that other equally sincere people supported same-sex marriage. Since there are honest differences of opinion about the matter, the government cannot take sides (to do so would be unconstitutional), and indeed the government must take steps to insure that, where civil marriage is concerned, all are equally provided for. Polk County offered no religion-based reasons, but these reasons may not be legitimately offered, in fact.

Has the airtight case for same-sex civil marriage been made?

It would seem to me, that in light of this very carefully reasoned argument by the Iowa Supreme Court, there is simply no rational argument left to support banning same-sex civil marriages. Of course, many people would like to see our constitutional democracy turned into a theocracy, one in which so-called Christian principles take precedence over democratic ones. I sincerely hope that never happens, because it would insure that U.S.A. citizens would no longer be able to worship according to their conscience. Certainly this would be the beginning of the death of freedom here.

However, if we assume democratic principles, and also assume that the legislation in this democracy cannot be based on a particular religious point of view, then the case must be made on common sense and scientific principles alone that same-sex marriage would not benefit children, would somehow harm existing opposite-sex marriage, or would undermine procreation. The Iowa Supreme Court found no such evidence. Proponents of such an argument would actually have to become knowledgeable about gender science, instead of basing their arguments on a point of view formulated long before people had even a glimmering of today’s scientific understanding. It’s not likely to happen. In fact, it’s more likely that more and more people will gradually see the light. And that would be the dawning of a new gay.

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Author: Jim Andris

Retired gay married early adopter. Cooking, cleaning, fixing. Makes good music occasionally; U name it. Churchy dude. Likes to think about things, too much, sometimes. Dump Trump. Trying not to do too much harm. Revisiting blogging. Looking for a new handle on things. Exploring genderqueer.