Many of my friends in the Conservative movement 'agree' with me that gay marriage does not belong in the Federal or national political arena. I do not for a moment believe the majority of them hold that position because of a fundamental principle of individual rights. No, they are quick to join me that the topic doesn't belong at the national level. But, when a state Supreme Court has overturned state bans on gay marriage, I have heard NONE OF THEM support that result. In every case, they have joined the chorus of 'judicial activism'. Further, to those that voiced an opinion to me (and many did not), they supported the movement in California to place the ban of gay marriage into the California Constitution. So much for individual rights.
So. Lets cover how Iowa's Supreme Court dealt with the common issues raised against gay marriage:
Therefore, with respect to the subject and purposes of Iowa’s marriage
laws, we find that the plaintiffs are similarly situated compared to
heterosexual persons. Plaintiffs are in committed and loving relationships,
many raising families, just like heterosexual couples. Moreover, official
recognition of their status provides an institutional basis for defining their
fundamental relational rights and responsibilities, just as it does for
heterosexual couples. Society benefits, for example, from providing samesex
couples a stable framework within which to raise their children and the
power to make health care and end-of-life decisions for loved ones, just as it
does when that framework is provided for opposite-sex couples
With the exception of the gender of one of the parties, we have a marriage in everything but name. Raising kids, legal and life issues, economic and political issues. Community and religious issues. There tends to be no daylight between the life of a straight couple and the life of a gay couple of similar circumstances. So the Court found:
Therefore, with respect to the government’s purpose of “providing an institutional basisHere are the most common arguments against gay marriage, made in the Iowa case:
for defining the fundamental relational rights and responsibilities of
persons,” same–sex couples are similarly situated to opposite–sex couples.9
The County has proffered a number ofWhile I could recount the 30 pages the Court uses to dismantle the arguments made, here is their summary:
objectives supporting the marriage statute. These objectives include support
for the “traditional” institution of marriage, the optimal procreation and
rearing of children, and financial considerations.24
Having examined each proffered governmentalThe Court however, recognized that there was one argument against gay marriage that had been left out of the case, and they considered it to be a fundamental objection and wanted to raise it, and deal with it:
objective through the appropriate lens of intermediate scrutiny, we conclude
the sexual-orientation-based classification under the marriage statute does
not substantially further any of the objectives. While the objectives asserted
may be important (and many undoubtedly are important), none are
furthered in a substantial way by the exclusion of same-sex couples from
civil marriage. Our equal protection clause requires more than has been
offered to justify the continued existence of the same-sex marriage ban
under the statute.
I. Religious Opposition to Same-Sex Marriage. Now that we haveThe key point is that individual rights are not subject to the whims of tradition. Standing for individual rights means STANDING FOR INDIVIDUAL RIGHTS.
addressed and rejected each specific interest advanced by the County to
justify the classification drawn under the statute, we consider the reason for
the exclusion of gay and lesbian couples from civil marriage left unspoken by
the County: religious opposition to same-sex marriage. The County’s silence
reflects, we believe, its understanding this reason cannot, under our Iowa
Constitution, be used to justify a ban on same-sex marriage.
While unexpressed, religious sentiment most likely motivates many, if
not most, opponents of same-sex civil marriage and perhaps even shapes the
views of those people who may accept gay and lesbian unions but find the
notion of same-sex marriage unsettling.29 Consequently, we address the
religious undercurrent propelling the same-sex marriage debate as a means
to fully explain our rationale for rejecting the dual-gender requirement of the
It is quite understandable that religiously motivated opposition to
same-sex civil marriage shapes the basis for legal opposition to same-sex
marriage, even if only indirectly. Religious objections to same-sex marriage
are supported by thousands of years of tradition and biblical
interpretation.30 The belief that the “sanctity of marriage” would be
undermined by the inclusion of gay and lesbian couples bears a striking
conceptual resemblance to the expressed secular rationale for maintaining
the tradition of marriage as a union between dual-gender couples, but better
identifies the source of the opposition. Whether expressly or impliedly,
much of society rejects same-sex marriage due to sincere, deeply ingrained—
even fundamental—religious belief.
Yet, such views are not the only religious views of marriage. As
demonstrated by amicus groups, other equally sincere groups and people in
Iowa and around the nation have strong religious views that yield the
This contrast of opinions in our society largely explains the absence of
any religion-based rationale to test the constitutionality of Iowa’s same-sex
marriage ban. Our constitution does not permit any branch of government
to resolve these types of religious debates and entrusts to courts the task of
ensuring government avoids them. See Iowa Const. art. I, § 3 (“The general
assembly shall make no law respecting an establishment of religion . . . .”).
The statute at issue in this case does not prescribe a definition of marriage
for religious institutions. Instead, the statute declares, “Marriage is a civil
contract” and then regulates that civil contract. Iowa Code § 595A.1. Thus,
in pursuing our task in this case, we proceed as civil judges, far removed
from the theological debate of religious clerics, and focus only on the concept
of civil marriage and the state licensing system that identifies a limited class
of persons entitled to secular rights and benefits associated with civil
We, of course, have a constitutional mandate to protect the free
exercise of religion in Iowa, which includes the freedom of a religious
organization to define marriages it solemnizes as unions between a man and
a woman. See Iowa Const. art. I, § 3 (“The general assembly shall make no
law . . . prohibiting the free exercise [of religion] . . . .”). This mission to
protect religious freedom is consistent with our task to prevent government
from endorsing any religious view. State government can have no religious
views, either directly or indirectly, expressed through its legislation.
Knowlton v. Baumhover, 182 Iowa 691, 710, 166 N.W. 202, 208 (1918). This
proposition is the essence of the separation of church and state.
As a result, civil marriage must be judged under our constitutional
standards of equal protection and not under religious doctrines or the
religious views of individuals. This approach does not disrespect or
denigrate the religious views of many Iowans who may strongly believe in
marriage as a dual-gender union, but considers, as we must, only the
constitutional rights of all people, as expressed by the promise of equal
protection for all. We are not permitted to do less and would damage our
constitution immeasurably by trying to do more.The only legitimate inquiry we can make is whether [the statute]Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398, 483, 54 S. Ct. 231, 256,
is constitutional. If it is not, its virtues . . . cannot save it; if it
is, its faults cannot be invoked to accomplish its destruction. If
the provisions of the Constitution be not upheld when they
pinch as well as when they comfort, they may as well be
78 L. Ed. 413, 452 (1934) (Sutherland, J. dissenting).
In the final analysis, we give respect to the views of all Iowans on the
issue of same-sex marriage—religious or otherwise—by giving respect to our
constitutional principles. These principles require that the state recognize
both opposite-sex and same-sex civil marriage. Religious doctrine and views
contrary to this principle of law are unaffected, and people can continue to
associate with the religion that best reflects their views. A religious
denomination can still define marriage as a union between a man and a
woman, and a marriage ceremony performed by a minister, priest, rabbi, or
other person ordained or designated as a leader of the person’s religious faith does
not lose its meaning as a sacrament or other religious institution.
The sanctity of all religious marriages celebrated in the future will have the
same meaning as those celebrated in the past. The only difference is civil
marriage will now take on a new meaning that reflects a more complete
understanding of equal protection of the law. This result is what our
Every conversation I have had with Conservatives starts with the agreement that individual rights are the cornerstone of our country. But, bring up gay marriage and individual rights go right out the door. Back to Iowa for one more issue:
This precise situation is presented by the County’s claim that theConservatives hold that because the tradition is one of discrimination, that the historical definition encompasses a restriction on individual rights, that individual rights are trumped because they were in the past. Gays can't marry now, because they never were allowed in the past. Great argument to justify virtually ANY long standing discrimination or restriction on individual rights.
statute in this case exists to preserve the traditional understanding of
marriage. The governmental objective identified by the County—to maintain
the traditional understanding of marriage—is simply another way of saying
the governmental objective is to limit civil marriage to opposite-sex couples.
Opposite-sex marriage, however, is the classification made under the
statute, and this classification must comply with our principles of equal
protection. Thus, the use of traditional marriage as both the governmental
objective and the classification of the statute transforms the equal protection
analysis into the question of whether restricting marriage to opposite-sex
couples accomplishes the governmental objective of maintaining opposite-sex
This approach is, of course, an empty analysis. It permits a
classification to be maintained “ ‘for its own sake.’ ” Kerrigan, 957 A.2d at
478 (quoting Romer, 517 U.S. at 635, 116 S. Ct. at 1629, 134 L. Ed. 2d at
868). Moreover, it can allow discrimination to become acceptable as
tradition and helps to explain how discrimination can exist for such a long
time. If a simple showing that discrimination is traditional satisfies equal
protection, previous successful equal protection challenges of invidious
racial and gender classifications would have failed. Consequently, equal
protection demands that “ ‘the classification ([that is], the exclusion of gay
[persons] from civil marriage) must advance a state interest that is separate
from the classification itself.’ ” Id. (quoting Hernandez v. Robles, 855 N.E.2d
1, 33 (N.Y. 2006) (Kaye, C.J., dissenting)); see also Romer, 517 U.S. at 635,
116 S. Ct. at 1629, 134 L. Ed. 2d at 868
Finally, there is one piece left:
Of course, “[r]eform may take one step at a time, addressing itself toI can not take Victoria to court should she seek to prevent me from seeing CJ. Wisconsin has determined I do not have standing even to make a motion to seek visitation. Almost every Conservative I have ever talked to about this situation says that it is wrong, and that it could be addressed without full fledged marriage. How many issues will we address (times 50 states) individually instead of one change, all done?
the phase of the problem which seems most acute to the legislative mind.”
Knepper v. Monticello State Bank, 450 N.W.2d 833, 837 (Iowa 1990) (citing
Williamson v. Lee Optical of Okla., 348 U.S. 483, 489, 75 S. Ct. 461, 465, 99
L. Ed. 563, 573 (1955)). Thus, “[t]he legislature may select one phase of one
field and apply a remedy there, neglecting the others.” Williamson, 348 U.S.
at 489, 75 S. Ct. at 465, 99 L. Ed. at 573. While a statute does not
automatically violate equal protection merely by being under-inclusive, the
degree of under-inclusion nonetheless indicates the substantiality of the
relationship between the legislative means and end.
Conservatives WANT to address each issue individually. It prevents a result they oppose. But how can a Conservative, one that strongly supports individual rights, so resolutely dismiss them in this area? I don't know. Every conversation returns to something OTHER than individual rights.
Be it tradition, or procreation, or definition, the individual right to marry a person of my choice is not one Conservatives are willing to accept, nor defend. They will not address the issue. Individual rights are subordinate to 'tradition', or arguments that at the state level, a majority oppose it - as if "well, there you have it. The majority oppose it, so, the hell with individual rights" is some type of excuse for THEM.
There are millions of Conservatives. Most will quickly agree that individual rights are inherent, that the Constitution is a document to prevent government from unduly restricting those rights, but when those individual rights include actions they disagree with, they will latch on anything and everything as justification to restrict those 'fundamental individual rights' to 'acceptable norms'.
I have decided and stated to a number of people that we have bigger problems than a lack of gay marriage in this country. And as such, gay marriage will not be a litmus test for me in supporting conservatives needed to repair the damage Obama and Co (and Bush and Co before them) are doing. But don't for a second think that I am willing to concede MY individual rights, nor the fundamental premise that those rights are inherent and the Constitution is designed to PROTECT them, not restrict them.
In the area of gay marriage, the Conservative movement is statist. The state, used by society, is an appropriate tool to restrict the rights and freedoms of a small group because the majority wishes to do so. The Constitution of California was changed to explicitly restrict the liberty of a minority based on the desires of a majority. No greater threat to us as a people, to us as a Nation exists than the desire and use of 'legal measures' to keep a minority limited in their freedoms.
I stand for individual rights. A classical liberal in the same mold as our Founding Fathers can hold no better position than to state the use of government against the individual is an evil the Founding Fathers attempted to avoid by giving us a Constitution specifically created to prevent such a use.
I stand for individual rights. Every Conservative that opposes the Lefts attempts to use the power of the state to force a minority group to fund it's every whim, should oppose any attempt of a majority to impose upon a minority restrictions in their liberties because they think it is just.
I stand for individual rights at the national level, at the state level, at the local level and in my neighborhood. That is the characteristic of a 'principle'. That it applies everywhere, to everyone. A principle of convenience, of tradition, is no principle at all.
I stand for individual rights, the question for the Conservative movement is, why don't you?