Andrew’s Analytics

Just over a year ago, the California Supreme Court ruled that the state’s ban on same sex marriages violated the California Constitution. Opponents of that decision went right to work, and got a constitutional amendment on the ballot for the 2008 general election. When the amendment passed with 52% of the vote, proponents of same sex marriage filed suit, seeking to overturn propostion 8. Yesterday, the court ruled that the amendment was lawfully passed, and that the ban on same sex marriages would stay intact.

The big difference between a year ago and now is this: a year ago, the court decided that the statutory ban violated the constitution. Unfortunately, since then,  the constitution has been explicitly changed to deny marriage rights to same sex couples. The voters of California decided that they wanted to remove a right from the constitution that the authority of that document said was in there.

The biggest problem that I had about proposition 8 was the campaign for it. The Mormon and Catholic churches poured tons of money into it. Private citizens within these religions of course have a right to speak for the amendment, but the institutions themselves should not be allowed the same First Amendment rights. We exempt religious organizations from paying taxes as part of the separation of church and state. If they are going to be advocating for this, or any specific candidate or ballot measure, they should pay their taxes like the rest of us.

Since then, Iowa, Connecticut, Maine and Vermont have all legalized same sex marriage. The smart money says New York and New Jersey won’t be too far behind. Same sex marriage opponents may have won the battle, but they’re losing the war. As the next generation of Americans come into power, same sex marriage will not be seen as the taboo that it has been in recent decades. When people see that the sky isn’t falling in Iowa or Massachusetts, we won’t even be having this debate.

In a battle that conservatives, with few exceptions, have been winning across the nation took a turn to the left earlier today in the heartland. Opponents of same sex marriage have passed constitutional bans in states in every region, including perennially blue California and Michigan. State statutes prohibit same sex marriage in the liberal strongholds of Rhode Island and New Jersey. Today Iowa joins Connecticut and Massachusetts  as the third state to grant marriage licenses to same sex couples.

Just over three years ago, six same sex couples from Polk county Iowa filed applications for marriage licenses in Des Moines. All of these applications were denied by Polk County Recorder Tim Brien, in accordance with Iowa law. After a trial in Polk County District Court, Judge Robert Hanson ruled in favor of the plaintiffs, saying that Iowa’s prohibition on same sex marriages was unconstitutional, but the ruling was stayed until an appeal could be heard. After the county appealed to the state supreme court, the justices heard arguments late 2008.  Earlier today, the court unanimously upheld the lower court’s ruling,  setting the stage for Iowa to begin issuing marriage license to same sex couple in 21 days. 

Opponents of the decision vow to push for a constitutional amendment to define marriage as one man and one woman.  In contrast to California, however, this one will be more difficult to push through. In order to amend the Iowa constitution, a prospective amendment must pass consecutive legislative sessions, and then the public gets to vote on it. In addition, the Democratic controlled legislature has no plans to bring it to the floor. Will this be political suicide for legislative leaders hailing the ruling? Probably not. Iowans clearly rejected conservative fiscal policy in the last few years at the voting booth, and the focus of the legislature is getting Iowa’s economy going, as it should be.  If the economy starts to turn around, Iowans will reward their representatives with a return trip to Des Moines. In addition, the wording of the ruling is going to be difficult for opponents to argue. I read the opinion, written by Justice Mark Cady, posted on Iowa’s Supreme Court website, and this should be required reading for anyone in Iowa who wants to introduce an amendment to bring this back discrimination to Iowa. Cady refutes the five arguments that Polk County presented to the court, and also addresses the role of courts in determining such matters. Cady also explores the evolving notion of equal protection, quoting Oliver Wendell Holmes: “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”

It appears that the soonest a potential amendment could be put to Iowa voters is November 2012, which is three and a half years away. By that time, people will hopefully see that same sex marriage will not threaten “traditional” marriage, and the world will not fall apart if two men get married. As for me, living about 8 miles from the intersection of 43 1/2 degrees north, and the Big Sioux river, I will keep my eye to the southeast watching for the hellfire and damnation that conservatives are predicting will befall the hawkeye state. I think I’ll be waiting a while.