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.
The point isn’t that the justices of the Iowa Supreme Court are wrong about any of this: The point is that there’s no reason to think that the justice’s opinions regarding such matters are any more accurate or valuable than anyone else’s (such as, for example, those of ordinary Iowans).
Again, this kind of judicial policymaking lacks any kind of genuine legal content. The question the court is answering is a legal one only in the trivial sense that it’s a subject of legislation. Whether gay marriage ought to be legal is a political question, regarding which lawyers in general and judges in particular have no special insight.
All of this should be blatantly obvious. If the justices of the Iowa Supreme Court actually understood what they were doing, and then chose to be candid about it, the court’s opinion would have read something like this:
“We are wise people, who are better educated and less prone to prejudice than most of our fellow citizens. Therefore, it’s a good thing that certain very important questions should be decided by us rather than by the voting public. This is one of those questions. So we’re going to decide it.”
Perhaps the most coherent defense of what the court did is that its decision in this case is no different from what federal and state courts have been doing in America for much of the nation’s legal history.
What’s striking about this claim is that it mirrors a central argument of the opponents of gay marriage. Just as we have a long tradition of limiting marriage to opposite sex couples, we have a long tradition of having courts decide controversial political matters.
In other words, the best argument for both practices may be that we’ve always done it that way. That the Iowa court found the argument of tradition particularly contemptible in the context of the state’s refusal to recognize gay marriage is, under the circumstances, more than a little ironic.
Paul Campos is a professor of law at the University of Colorado at Boulder.
