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Right Decision, Wrong Reason
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The Iowa Supreme Court’s decision to overturn the state's ban on gay marriage may have achieved a noble end, but Paul Campos writes that the means are "a bunch of question-begging nonsense, poorly disguised by a smokescreen of law talk."
Decisions such as the Iowa Supreme Court’s recent announcement that the state’s constitution requires the state to make same-sex monogamous marriage legal pose a practical dilemma for those of us who support gay marriage, but oppose the more egregious varieties of legal hocus-pocus.
And make no mistake—the court’s decision is a bunch of question-begging nonsense, poorly disguised by a smokescreen of law talk.
It should be unnecessary to point out that the question of whether same-sex unions are sufficiently like opposite-sex marriages to merit equal treatment is a political and moral question, which lacks any specifically legal content whatsoever.
Stripped of its verbiage, the court’s opinion comes down to the following claims: First, it’s a bad thing for the state to treat people differently on the basis of sexual orientation, unless the state has a good enough reason. Second, the reasons the state gave for treating same sex-couples differently from opposite-sex couples in regard to marriage weren’t good enough.
That’s it. These conclusions might raise various questions in the mind of someone who hasn’t enjoyed the benefits of a legal education. Such as, what was the court’s basis for these claims? Is there anything specifically “legal” about these conclusions? And how did the judges figure this stuff out, especially given that it took more than a century before anyone noticed Iowa's constitution contained this requirement?
To dive into the law talk for a moment, the court said it was interpreting the equal-protection clause of the Iowa constitution, which, like the U.S. Constitution, guarantees the state’s citizens that they will be treated equally by the law.
Yet, just as in the case of the federal constitution, this phrase is, as a practical matter, meaningless. It’s meaningless because a legal directive telling the government to treat people equally in and of itself decides nothing. As my old criminal-law professor Peter Westen pointed out in a famous article 25 years ago, in terms of legal-decision-making, equality is an empty idea.
That’s because the concept of equal treatment requires treating things that are sufficiently alike in the same way—but that concept tells you nothing about whether the things you’re analyzing (such as opposite-sex and same-sex marriage) are sufficiently alike.
It should be unnecessary to point out that the question of whether same-sex unions are sufficiently like opposite-sex marriages to merit equal treatment is a political and moral question, which lacks any specifically legal content whatsoever.
For example, legal reasoning doesn’t help us decide if polygamous marriages are sufficiently like monogamous marriages to merit equal legal treatment.
Similarly, the tiresome business of the court’s means-ends analysis, in which it is supposedly deciding whether the law in question is substantially related to an important state interest, is indistinguishable from any other purely legislative judgment regarding whether the means chosen to pursue a public policy goal are appropriate.
Here, for example, the state of Iowa defended its refusal to recognize gay marriage on five grounds: protecting tradition, promoting a good environment for children, promoting procreation, promoting stability in opposite-sex relationships, and saving the state money.
The court decided that none of those reasons provided good enough justifications for banning gay marriage, either because they weren’t important enough, or because banning gay marriage didn’t “substantially advance” them.
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Lloyd Grove is editor at large for The Daily Beast. He is also a frequent contributor to New York magazine and was a contributing editor for Condé Nast Portfolio. He wrote a gossip column for the New York Daily News from 2003 to 2006. Prior to that, he wrote the Reliable Source column for the Washington Post, where he spent 23 years covering politics, the media, and other subjects.
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Paul Campos is a professor of law at the University of Colorado at Boulder.
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Paul Campos is a professor of law at the University of Colorado at Boulder.
Beats the hell out of the California supreme court which thinks mob rule should trump the rights of individuals.
The argument "that we've always done it that way." has been shown over and over to have no value.
The article indicates that the Justices decided to state the obvious - that none of the arguments used to promote and defend refusing same sex marriages in Iowa have any merit.
The real question is "is there an argument that does have any merit - in the United States of America?" I haven't heard any with real facts behind them. If you have please state them here.
The will of the many does not invalidate the rights of the few. (Though 30 million is not so few) I disagree with Mr. Campos on his legal interpretation. The outcome is noble, but I doubt it will last.
..."we have a long tradition of having courts decide controversial political matters.".....I believe that "tradition" dates back to about the time OUR Constitution was signed!?!?!
Thats the beauty of Balance of Power. No one branch of government gets ultimate power. Always funny to me how the Right OR Left LOVES the Courts....until they make a decision against THEIR beliefs...
I'm by no means a lawyer, but I'm of the opinion that, in the absence of a legal reason to forbid something, the state should allow it.
Also, I wonder how the author would interpret other judgements in favor of giving back rights that never should"ve been taken away in the first place. Wouldn't decisions concerning blacks, other minorities, or women, particularly one's based on equal protection and other such statements of "equality," then also be suspect, in pretty much the same way?
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I'm no lawyer, but I've always been under the impression that, in the absence of a legal reason to forbid a thing, the state should allow it. I've never looked at the issue of gay marriage from the standpoint of their having to prove they're worthy of it, but of the state having to prove they shouldn't have it.
Also, I wonder how the author interprets other rulings based on equal protection or other standards of "equality." Does he also believe there was no legal basis for the decisions affecting blacks and other minorities, or women? If so, what should be the solution? Must we wait for majorities to rule on the treatment of minorities, or is protection of the little guy (or group) to continue as one of the cornerstones of our government?
(Copied this time, in case it happens again...)
As a lawyer, I understand your article and you are correct that they are at best, making a value judgment which has already been made by the legislature. I guess my question is would you rather see this sort of analysis removed from the perogative of the Courts? Should they disregard these portions of our Constitutions? The concept of Equality under the Constitution is not meaningless, for do we not have a cannon that we are to give effect to all language in Statute or Constitution? Thus, have the Courts not figured out the best to do this...and while yet imperfect has it not over time resulted with generally positive results. Perhaps, in some regard this is what our founders intended, since we are all human, all subject to subjectivity and error, this is how we check and balance our society...do you have a better idea?
I think the Iowa court did a superb job of writing the decision in an easy to understand format that addressed all of the concerns before it. The 69 page document was painstakingly voiced in a manner that made the court's point while at the same time did it in a manner that was not condescending or arrogant and respected the views of opponents. I think the document is as much a work of art as of law.
Lawyers are dangerous vermin, and here is more evidence. The question of gay marriage is a simple matter of equal protection of the law: Iowa has no business deciding that some people enjoy the legal protections of marriage while some other people do not. But lawyers abhor simplicity because it makes them irrelevant; lawyers are professional 'complicators.'
". . . the concept of equal treatment requires treating things that are sufficiently alike in the same way . . ."
Am I the only reader who finds this assertion startling? I had been under the impression that "equal treatment" applied not to things but to people. If I'm right and the professor is wrong, doesn't his otherwise cogent argument collapse in a heap?
You don't need to be a legal scholar to recognize that the analysis in the above column is flatly ridiculous. While not rigidly bound by them, courts follow legal practices and traditions all the time. This should be uncontroversial. But when courts subvert legal reasoning along traditional frameworks to social and religious traditions, then we should get worried. What is so ironic about practicing legal traditions in legal arenas, social traditions in social arenas, and religious traditions in religious ones?
"And make no mistake-the court's decision is a bunch of question-begging nonsense, poorly disguised by a smokescreen of law talk." -- Paul Campos
That's a startlingly ignorant claim for one who purportedly studied the law, as is the implicit disrespect shown towards the equal protection clause. I imagine the writer lives in his own GOP universe where core fundamental values have been auctioned off on Fox or eBay.
For Gay men, of whom I am proudly one, the equal protection clause is not rubbish -- it is a creed which I believe in and practice. The notion that all men are created equal is contained within the first paragraph of the Declaration of Independence and Les Droits de Humaines.
Please do all lesbians, gays, bisexuals and transgender people a huge favour, Mr. Campos, and no longer offer your "support" of same-sex marriage. We don't need "friends" like you.
It sounds like the writer has a general argument with America's courts and Equal Protection clauses, and not a case for or against the gay marriage decision in particular. His argument seems to be the Judges should not protect minority rights through a process of "judging" against a constitutional standard he considers invalid.
The job of the Supreme Court is to judge the constitutionality of a law. The only criteria by which they may make this ruling are the constitution and statutes. The state constitution, like many others, lays out the equal protection language, which is further defined by statutory language. These combine to produce exactly the logic used in the decision: a state may "discriminate" only if it is in the compelling interest of the state, since there was no compelling state interest in banning same sex marriage, it is now legal. This is the way the law works, would it have been nicer for them to proclaim from the highest court that GLBTQ persons are A-OK and great for society, but that isn't in their purview. I'm happy to take that position myself.
I'm working in the Vermont legislature currently and trying (desperately) to get us to become the first state to legislate same sex marriage. We came close to this kind of decision with civil unions and I was particularly happy to read in the final paragraphs of the Iowa decision that they did not feel that a measure like civil unions was enough for Iowa.
As a lawyer, I can say that Campos' reasoning is wrong, wrong and wrong.
Our Equal Protection jurisprudence is quite well established (particularly from the 60s and the days of Loving v. Virginia and Brown v. Board), and there is nothing odd about the Iowa Supremes adverting to it. Actually, there arguments follow closely the reasoning of the Massachusetts Supremes in their recent celebrated decision to protect gay marriage.
So, is the Iowa Supreme Ct, the Mass Supreme Ct, and a well established canon of US law mistaken? Or is this ignorant fellow Mr. Campos?
Marriage in the eyes of God and should be defined by your church. Civil Unions are the laws of the state. With separation of church and state this is not that confusing of a question. All adults should be able to form a civil union. Heterosexual atheist, homosexuals and Christian heterosexuals that want protection under the law should apply for a civil union. All divorce law should be applicable to civil union since this is the law of the state. Since marriage is in the eyes of God the break up of that marriage should only involve the applicable church. The Church can come up with a marriage certificate that has no validity in law but is binding in the eyes of god. So yes if you want to get married and be recognized as a legal couple you would have a marriage certificate and a civil union license. Case solved. Civil Unions should also be allowed on a time basis like any contract. Two year civil unions are entirely possible. Child Support laws are no longer based on marriage anyway so the truth is that they are no longer the main issue of state controlled marriage. At some point, it is all terminology; true unions of two people do not need the church or the state. However, if the state must apply rules than it is the responsibility of the state to insure that the rules apply equally to all.
Iowa- Gay marriage only impacts gay people who are denied the same rights as straight people, you will see over time that the only people that this will impact is gay people, straight people should not even be concerned with this ruling.
These so called pro-family organizations should spend their time and resources in helping all the straight people who have kids and abandon them, the world should be thankful that some gays actually want to clean up the mess of what some straights have left behind.
I encourage "pro family" organizations to get and clue and focus on the real problem and not spend time on issues that are of no concern to anyone. There will always be gay people, ALWAYS, but the world should focus on problems in their own backyard like helping children in foster care. It is a "god" given fact that gays couldn't have created the millions of abandoned children.The so called pro family groups should spend time on their own mess.
Adam and Eve, not Adam and Steve! Sorry, I had to say it. I-oway, I-oway, that's where the tall corn grows.
I agree with "pardonme"
". . . the concept of equal treatment requires treating things that are sufficiently alike in the same way . . ."
So because of the differences in choice of sexual partner, homosexuals are so WILDLY different from heterosexuals, that the law can not have/apply a concept of equality? So then how can the law have a concept of equality when it comes to allowing interracial marriages? How can the law allow marriage between different religious followers? etc. Aren't those "too unalike"?
Doesn't it just go without saying that ALL citizens under the US constitution should be endowed with the same rights? To compare homosexual marriage to polygamy is silly, too. The idea of marriage should be the right of one person to wed one partner. But if polygamists want to take THAT idea to court.....that is their right and up to them......tieing homosexual marriage to polygamy is silly..
The main idea the author hinges a lot of this article on doesn't make sense, in my opinion.
Legal bamboozling aside, the language of the US Constitution states that rights granted by law aply equaly to all. Amendments were needed to clarify that those rights applies equaly to people fo color, to women, to persons of differeing religious beliefs, ect, ect, ect.
The bottom line is that the only reason gay marriage is prohibited by law is a moral/religous one. It may be that other forms of marriage, equally repugnant to some religions, will be found to be protected by law.
The solution is simple: civil unions granted legal status by law, religious marriages granted recognition by the repsective church involved. All civil unions must be between consenting adults. Marriages must also be between consenting adults.
Let the rest go hang. If you think someone is going to hell, you will think it regardless of that person's marital status. If you don't, then someone's marital status has little or no bearing on your opinion.
The author is absolutely correct. Gay 'marriage' is not a judicial matter - it is a political and moral matter. Gay rights are not the 'same' rights as everyone else gets, they are in fact special and indeed extra rights that are being forced onto everyone else.
In a democratic society, we have the right to choose for ourselves what is correct and what is not. The problem with courts choosing for us is that they are not actually the people at all, but a small group who decides for everyone else.
With the court's decision, it is no longer a democratic decision, but a tyrannical decision.
to evanrm: You believe that "gay" rights are not the "same" rights. Are "straight" rights therefore "different" rights? And, if you believe "straight" rights are democratic, how do you explain that they are NOT "special" and "extra" rights since you don't believe in sharing them with gays. Doesn't that make YOU a tyrannt and "straight" rights tyrannical?
Arguments regarding "moral and political" justification for marriage overlook a very significant reality. By Government Accounting Office tabulation, there are 1015 financial benefits to marriage, encoded in tax, insurance, property and estate law. Though the institution of marriage has religious origins, it became a civil arrangement once codified into law. To deny the benefits of marriage to any two consenting adults based on religious or sexual preference constitutes unequal protection of the law. The civil union argument succumbs to Brown v. Board of Education logic that separate institutions are inherently unequal. Religious believers will have to be secure in the faith that their union is sacred in the eyes of God and is not tarnished by the laws of man.
Since when did it become a terrible thing for a court to decide "political matters?" The Court, as a law professor such as you should well know, are the last and possibly only place in which a historically discriminated minority can hope to get rights which should rightfully had been granted to them long ago. I see no problem with this, and I don't quite get why you do either. Are Gays and Lesbians siply supposed to wait and hope the tide changes and people finally decide it's okay for them to marry just so those "pesky" courts don't have intervene?
As far as your idea that the decision was legal gibberish, what else would you expect? How else should a court decide a CIVIL RIGHTS matter? Or are you forgeting that there is more to civil marriage in this society than just a name?
On top of that, your claims about the Equal protection clause are more than a little off base. Equal protection is granted to all PEOPLE, not things.
For someone who teaches law, I expected a little more teeth to this article... however, I was sadly mistaken.
Sorry, Professor Campos. Read your paper twice and couldn't grasp your point. I read the Iowa decision once, and it was clear as a bell. Iowa wins!
Thank you.
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