There aren’t any new legal arguments in the Iowa trial court decision of yesterday declaring the state’s exclusion of gay couples from marriage unconstitutional.
What’s unusual in the legal analysis (pp. 43-61), at least if you compare it to the various state supreme court decisions so far on the issue, is the conclusions reached. The court concludes there is a due-process-based fundamental right to marry that includes same-sex marriage. This is contrary to all of the state high court decisions on the issue, including the ones ruling for gay marriage or civil unions. Against that tide, the court offers almost no analysis beyond asserting (without citation) that strict scrutiny is warranted because the state marriage statute is “an absolute prohibition on the ability of gay and lesbian individuals to marry a person of their choosing.” (p. 45) The same could be said of consanguinity or numerosity limitations, or any of the other requirements that frustrate the choice of marriage partner. There’s actually some loose language in one Supreme Court decision supporting the view that complete barriers to marriage should be viewed more skeptically than minimal barriers, like the need to pay a nominal license fee, but that language comes in the context of an opposite-sex marriage case and the trial court doesn’t cite it. There are respectable arguments for the fundamental-right position, but the Iowa court doesn’t make them. I doubt this rationale will be accepted by higher courts in the state.
The equal protection argument — based on sex discrimination — breaks no new ground either. It, too, is contrary to the vast majority of decisions (even pro-gay-marriage decisions). On substance, the trial court doesn’t get us beyond the familiar arguments about Loving. While the sex-discrimination argument has a certain logic-chopping appeal, it doesn’t capture the Supreme Court’s underlying concern in Loving about how the racial classification there sustained a system of race supremacy in a way that would tie traditional marriage to a similar concern about gender supremacy. I also doubt this rationale will be accepted by the higher state courts.
Perhaps recognizing these weaknesses, the trial court devotes most of its attention to a Goodridge-style argument that excluding gay couples from marriage isn’t even rational. No new ground here, either. If the same-sex couples win in the higher state courts — a very big “if” — it will probably be on this argument.
The most interesting thing in the decision isn’t even the legal analysis section. Procedurally, the decision is a ruling on cross-motions for summary judgment. The agreed or uncontested facts are critical. The county’s attorneys made extensive and serious concessions or failed to adequately dispute many of the plaintiffs’ asserted facts about marriage, sexual orientation, and especially gay parenting (see especially pp. 21-43).
The “undisputed” facts read like a gay-marriage advocate’s dream brief. I don’t want to go through them all, but suffice it to say that many of the “undisputed” facts — like the methodological validity of studies showing that gay parents are just as good as straight parents — have been hotly disputed in gay-marriage litigation. Indeed, the existence of disputes about parenting in particular have been used by some courts to argue that on rational basis review the state legislature is entitled to make its own conclusions about maintaining traditional marriage.
If these facts are treated as undisputed by the higher courts in Iowa (and I assume the state will try to challenge the conclusion that they’re really undisputed), the plaintiffs’ chances of winning on rational-basis review will go up. The Iowa marriage litigation might then turn out to be more interesting than I thought, though I still expect the plaintiffs to lose on appeal. I doubt gay marriage is going to come to Iowa by default. One way out for a higher state court might be simply to reverse the decision on the grounds that the trial court misapplied the summary judgment standard in ruling for the plaintiff about the undisputed facts or its exclusion of the county’s expert witnesses. This would return the issue to the trial court and allow the higher state courts to avoid the substance of the marriage issue — for now.
Meanwhile, after one gay couple obtained a marriage license, the trial judge stayed his decision. There will be no summer of love in Iowa.