As most bloggers out there with any ties to current news will already know, the Iowa Supreme Court handed down on Friday a decision that Iowa's statutory definition of marriage as a union between a man and a woman was unconstitutional, because it violated the Equal Protection Clause in Iowa's Constitution. The decision makes Iowa the fourth State to have same-sex marriages introduced by judicial fiat, and the third State in which such marriages are currently legal (the voters in California, the fourth State where the judges went first, having reversed the men/women in black---at least for the time being, until the Supreme Court rules whether the voters are actually competent to do such a thing).
Regular readers of this blog will already be familiar with my view that the Equal Protection Clause has nothing whatsoever to do with civil marriage, which is not an individual "right", but a (heterosexual) couple's privilege, conferred by the State for reasons which have an ample historical and sociological basis (principally to license the orderly propagation of society's future members). In the first place, the Equal Protection Clause itself ("No State shall . . . deny to any person within its jurisdiction the equal protection of the laws") is a guarantee which, while written in the Constitution, requires judges to interpret and apply its meaning---so it is really not a "guarantee" of anything fixed, but only an assurance that you will receive the benefit of the best and most enlightened judicial lucubrations on the subject (at least, if you are first careful to appoint the best and most enlightened justices to the Supreme Court).
In the second place, the language of the Equal Protection Clause is broad enough to let a herd of elephants through its commodious arch, while at the same time denying entry to a gnat---depending on the momentary whims of its black-robed guardians. There is no definitive method of legal reasoning which could be followed to arrive at a conclusive, once-for-all-time interpretation of what it says. Witness, for example, how both the States and Congress routinely enact, without any Constitutional opposition whatsoever, laws applicable to the general populace, while exempting themselves from the statutes' operation. (The Fourteenth Amendment, which contains the Equal Protection Clause, applies by its literal language only to the States, and not to the federal government. But as explained in this post, the Supreme Court, while not saying it directly, brought the Clause [or its guarantee] in by the back door of the Fifth Amendment when it ruled [in Bolling v. Sharpe] that school segregation in the District Columbia was just as much a denial of equal protection as it was in Kansas [Brown v. Board of Education of Topeka].)
Thus when I read initially, thanks to Jackie Bruchi's being on top of the news, about the Iowa Supreme Court's decision, my immediate reaction was: "Here we go again---another State supreme court has succumbed to the fallacy that marriage must be treated for constitutional purposes as an individual right, and not as a privilege conferred on couples mainly so that they can produce legally recognized heirs." I was therefore bemused to read the post written by my professional colleague and fellow blogger D. C. Toedt praising the Court's "constitutional reasoning", in terms such as these (emphases in original):
• the discussion of the separation of powers starting at page 12, recapping the crucial role that courts play in protecting individual rights by moderating the raw power of majority rule;
• the summary of the standard way of analyzing constitutional equal-protection questions, starting at page 19. The opinion explains that normally the courts use a deferential ‘rational basis’ test to judge the constitutionally of legislative classifications, but that sometimes ‘strict scrutiny’ and ‘heightened’ or ‘intermediate’ scrutiny are applied in certain important cases to protect individual rights;
• the court’s application of those analytical principles to the Iowa ban on same-sex marriages, starting at page 31 and picking up steam at page 37;
• the court’s sober rejection, as insufficiently supported by evidence, of the usual proffered policy justifications for banning same-sex marriage, starting at page 51 — at pages 52-54, the court points out that the preservation of tradition for its own sake is not enough; “we must determine whether the reasons underlying that tradition are sufficient to satisfy constitutional requirements.” (Emphasis by the court, citations and internal quotation marks omitted.)
• Because the U.S. and Iowa constitutions guarantee freedom of religion for all and prohibit state endorsement or enforcement of any particular religious beliefs per se, "civil marriage must be judged under our constitutional standards of equal protection and not under religious doctrines or the religious views of individuals." Page 66 (emphasis mine [D. C. Toedt's]).
Needless to say, I was not as impressed by the quality of legal reasoning as was my colleague D. C. Toedt. To proclaim as a judicial insight that civil marriage should not be judged "under religious doctrines or . . . views" would seem to me to be either a shibboleth, or at best a meaningless truism. There is no reason, after the adoption of the Bill of Rights, for judges to drag religion into the analysis of civil marriage; still less should we praise them for doing so. As for the Court's equal protection analysis, I readily agree that it meets the minimum standard of judicial literacy, in that it explains in twelve pages what the previously linked post manages to do in one. But I am not exactly bowled over by the quality of the judicial reasoning evidenced in, say, footnote 26 on pages 54-55: "The traditional notion that children need a mother and a father to be raised into healthy, well-adjusted adults is based more on stereotype than anything else." (Oh, really---the basic family relationships are now to be regarded as just a quaint "notion", and a "stereotype" to boot, after all these years? How absolutely enlightened that is!)
Now, in dealing with what D.C. Toedt calls the Court's "sober rejection . . . of the usual proffered policy justifications for banning same-sex marriage," I would ask that you suspend judgment for the nonce, while I finish setting up the rest of this post. (I shall remark in passing, however, that I was equally unimpressed by the chorus of usual suspects chiming in on the preeminent merits of the Iowa Supreme Court's decision, and the vacuity and futility of religious-based opposition to it, here, here, and here.)
Thus, the usual voices from the left, seconded by bloggers such as D. C. Toedt, joined to praise the logically incoherent reasoning of the Iowa Supreme Court, because they reached an outcome that the left supports. OK, nothing new here---file and forget. Then, a few hours later, along came this seemingly unrelated post about a recently departed icon of mine, Father Richard John Neuhaus of First Things magazine (and Weblog). It gave the details of an incident that had occurred some thirty years ago, when Allan Carlson of the Rockford Institute had fired Father Neuhaus for deliberately exceeding his budget. In one of those career moves seemingly instituted by divine providence, Father Neuhaus had gone on to found First Things, and to make a substantial career both in print and online. I had not ever noticed that Father Neuhaus and Allan Carlson, to whose family-oriented publications I had been subscribing since the mid-1970's, had briefly worked as colleagues. So this was another case of note, file, and forget.
Following my usual blogs a few minutes later, however, I saw this post at the wonderful new Front Porch blog (it's linked in the sidebar), written by none other than---Allan Carlson! Entitled "Iowa . . . Place of the Drowsy Ones", it gave me a whole new perspective on the decision by the Iowa Supreme Court. Carlson is an Iowa native, and he places the decision into a real historical perspective that is markedly different from the left-wing cant I had been ignoring:
According to one legend, the word Iowa means “Place of the Drowsy Ones” in some extinct Indian tongue. This came to mind yesterday when the Iowa Supreme Court ruled unanimously that same-sex couples have a constitutional right in that state to marry. No drowsy ones in that courtroom! (In the interests of full disclosure, I should note that I played a small part in this court case. I was called as a witness for Polk County, the defendant, and asked to provide evidence that the intact, heterosexual marriage delivered socially, politically, and personally constructive results. After I was deposed for the better part of a day by Lambda Legal Defense Fund– actually something of a gratifying experience for my questioners had apparently read EVERYTHING I had ever written–the trial judge ruled my testimony inadmissible: I was a social historian, he noted, not a number-crunching sociologist… only the latter could provide relevant truth.)
Actually, I wasn’t deeply surprised by the Court’s decision. It has become increasingly clear to me that we heterosexuals bear most of the blame for the sorry state of marriage today. Over the last 50 years, we’ve accommodated ourselves to no-fault divorce, the intentionally childless “companionate” marriage, a pervasive “contraceptive” culture, and the virtual legal equation of cohabitation with marriage. “Same sex marriage” is simply the next logical step in this deconstruction of a once-Christian institution.
My real sadness is over my native state, the Place of the Drowsy Ones. During the days of my youth, it was a different land. Politically, both houses of the state legislature were apportioned mostly by county… or land, with Des Moines, Cedar Rapids, and one or two other cities having one extra seat in the Lower House. This “undemocratic” arrangement gave a huge advantage to farmers and the small town folk who defined the distinctive culture of Iowa. Politics was radically decentralized: weak governors with two-year terms; a legislature that met briefly only every other year. And yet, vice was kept under strict controls: gambling prohibited; liquor-by-the-drink only in private clubs; the beer…3.2 %; other intoxicants only to be found in carefully hidden state liqour stores that resembled opium dens; and mandatory store closings on the Sabbath.
The U. S. Supreme Court brought democracy to Iowans in the mid 1960s through decisions mandating legislative representation by population only in both chambers. The result?: city people crafted a new Iowa, featuring casinos, race tracks, state lotteries, “liquor by the drink,” strong beer, and wide open Sunday commerce. A few years ago I half-jokingly complained to a shirt-tail relative who’s a lobbyist at the Iowa legislature that the state seemed to have formally embraced every form of vice except prostitution. He replied that a bill to legalize “the oldest profession” was in fact under consideration.
So it turns out that the "enlightened reasoning" displayed by the Iowa Supreme Court, and touted by bloggers on the left, was not so much a product of inevitable and well-reasoned deductive logic, as it was the entirely foreseeable result of innovations imposed under the rubric of absolute equality under the law---"one man, one vote". Once that rubric replaced the one which Iowans had grown up with ever since they first were admitted as a State in 1846, there was nothing to hold them back from joining enlightened society. Carlson concludes with this wry observation:
Now, like most of my colleagues on The Front Porch, I appreciate a glass of wine or two with my dinner. And having the stores open on Sunday has been a convenience, at times. Yet I wonder if the old Iowa—a place ruled by farmers and culturally defined by the intensely communitarian small town– was actually of one piece, a coherent, mostly Christian (and predominantly Protestant), agrarian society that could not survive too many changes; and that the price of living in such a world was—and is—accepting certain restraints, including legal restraints, on one’s appetites. If “same sex marriage” follows logically from the intentionally childless, companionate marriage, does it also follow logically—at least in the case of Iowa—from liquor-by-the drink?