Wednesday, December 31, 2008

Optimism in Iowa

GayCityNews - Optimism in Iowa

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After watching oral arguments before the seven members of the Iowa Supreme Court December 9 in Varnum v. Brien, the case brought by Lambda Legal on behalf of six same-sex couples seeking marriage licenses in Polk County, which encompasses Des Moines, there are grounds for cautious optimism.

Polk County Recorder Timothy J. Brien, the defendant in the marriage suit, was represented by attorney Roger J. Kuhle, who argued for reversal of a county trial judge who had ruled that same-sex couples have a constitutional right to marry in Iowa. Dennis Johnson, an Iowa attorney appearing as a cooperating attorney for Lambda Legal, defended the trial court's decision.

The Supreme Court had accepted review on two questions - whether the existing law defining marriage as solely between a man and a woman stands up under the Iowa Constitution, and whether the trial judge erred by excluding from evidence some affidavits that Polk County had offered as expert testimony. The trial judge, in ruling on the paper record and oral arguments, decided without considering affidavits from individuals not expert in psychology or sociology who supported the state's argument that the optimal home for raising children is one that includes a parent of each sex.

In defending the trial judge's decision to exclude these affidavits, Johnson argued that they were merely statements of opinion by people without relevant expertise, and that many, many amicus briefs were filed by national organizations on both sides of the issues in this case, so the trial judge and the Supreme Court are not deprived of any information relevant to making this decision. Johnson also argued that even if one hypothesizes that there is an optimal family constellation for raising children, that does not provide a logical basis for excluding same-sex couples from getting married, and providing the benefits of marriage to their children.

Handicapping a court's reaction to oral arguments is always tricky business. The only woman on the court is Chief Justice Marsha Ternus, who asked few questions, but at one prominent point implicitly questioned the logic of Kuhle's argument during his rebuttal. All the other members are white males, making Iowa's among the least diverse state supreme courts in terms of gender and race, though that may be a fair reflection of the legal profession in the state.

I have no real familiarity with the court's track record, other than the claims of the attorneys in this case, particularly Johnson, that Iowa has been in the forefront of defining constitutional rights in advance of the US Supreme Court. That is certainly true in the case of gay rights, where the Iowa high court found state constitutional protection for private, consensual adult sex two generations before the US Supreme Court, back in the 1970s.

The only way I am comfortable "reading" the court in this case is assessing the questioning and back-and-forth between the justices and the attorneys, an analysis that holds out hope that a majority may rule to uphold the trial court in favor of same-sex marriage. That is based, in part, on the quality of the arguments. Kuhle did his best to be persuasive, but could not really get beyond the basic illogic and speculative nature of his argument, while Johnson did an excellent job of making an affirmative argument, using Iowa precedents, to bolster the claim that the Iowa Constitution should be construed to confer the same right to marry on same-sex couples already enjoyed by different-sex couples. It didn't hurt that Johnson pointed out that the very opening of the State Constitution contains a guarantee of freedom and equality to all Iowans.

The most active questioners on the bench were Justices Brent R. Appel, Michael J. Streit, and Mark S. Cady. Less active were David L. Baker, Daryl L. Hecht, and David S. Wiggins. But all asked some questions. The most engaged questioners seemed dubious about Kuhle's arguments.

One advantage in the recent California and Connecticut marriage cases, where same-sex marriage prevailed, is that the procreation issue - the argument that marriage most importantly functions to channel childbirth by heterosexual couples into stable family structures - was pretty much off the table; those states had already legislatively adopted a "separate but equal" status for same-sex couples that conferred all parental rights and responsibilities that marriage would offer, so the state could hardly argue in either case that different-sex couples had some unique claim on such benefits.

The argument is illogical on its face, but has been accepted by quite a few state courts, including - to the utter shame of my home state - in the abysmally reasoned decision by the New York Court of Appeals from two years ago.

Still, Kuhle tried to make this argument a centerpiece of his case, since Iowa has not adopted anything like a civil union law. Johnson called him out on this point by observing that Iowa has gone a long way toward recognizing the parental qualifications of gay people, allowing same-sex couples to be foster and adoptive parents and mandating that sexual orientation not be a factor in custody and visitation disputes. As a matter of public policy, then, Iowa already considers sexual orientation irrelevant to parenting, and is happy to place children who need a home with same-sex couples. That makes mounting the argument that the state has a strong policy interest in making sure that children have parental role models of both sexes more difficult.

Kuhle's argument is not primarily a sexual orientation argument, but more akin to the case accepted by the Florida Supreme Court and the federal 11th Circuit in upholding that state's ban on gay people adopting children - that children benefit in their psychological development by having a parental role model from each sex, and are deprived by having parental role models of only one sex. Politicians refer to "studies" supporting this assertion - of which there is none in any reputable peer-reviewed journal in a relevant discipline - but the judges in the Florida cases have at least been moderately upfront in admitting that they are adopting this view based on "common sense." That's really the same as saying this conclusion is nothing more than their personal opinions based on whatever biases and stereotypes they carry around in their heads.

Kuhle argued that parenting by same-sex couples hasn't been around long enough to know whether children will turn out alright, but that's nonsense. Same-sex couples in large numbers have been jointly parenting children for decades. There are plenty of middle-aged men and women walking around today who grew up in households headed by same-sex couples. At this late date, it is bizarre to assert as a matter of "common sense" that there is some systematic psychological deprivation resulting in gender identity crises for such children, when there is no evidence of that.

Justice Appel, one of the most persistent questioners, got to the heart of the political question before the court - whether it is appropriate for the judiciary to constitutionalize this issue rather than leave it to the political process to play out. He referred to the US Supreme Court's assisted-suicide case, in which great caution was expressed about courts recognizing "new" constitutional rights in matters subject to intense political debate and sharp divisions in the electorate. Some academic critics of the Roe v. Wade abortion ruling point out that it has "poisoned" the Supreme Court judicial confirmation process by making abortion a litmus test for nominees among interest groups on both sides of the question.

And Appel also referred to the judicial "minimalism" concept advanced by various legal scholars, perhaps most prominently Cass Sunstein of Harvard, which argues that courts should avoid making decisions that go beyond incremental change, leaving major policy changes to the political process. Appel noted that respondents had identified hundreds of statutes and policies affected by the right to marry, and asked whether a decision that could affect so broad a range of laws would make ruling in favor of same-sex marriage "too big a move?"

Johnson handled these questions very persuasively, pointing out that Iowa has already taken the process of adopting gender-neutral statutes quite far, meaning that changing the law to allow same-sex couples to marry would not require much in the way of adjustments. He emphasized that the plaintiffs sought to be admitted to the existing institution of marriage, not to redefine or change it regarding any of its legal implications.

Johnson's main theme, thrust home several times during his argument, was that the case is not about same-sex marriage, but rather about whether the right to marry, a long-established and venerable right, is accessible to all Iowans, regardless of their sex or sexual orientation. He argued several times that in evaluating rights claims, the court has never premised the existence of the right on the identity of those claiming it, and that traditional exclusion of a particular group from enjoying a right otherwise freely available has never been accepted as a justification for continuing the exclusion.

Kuhle's major theme, which he came back to repeatedly, was the speculation that if the state were to "promote" same-sex marriages, thus decoupling marriage from procreation, sometime down the line, perhaps 20 years or more in the future, different-sex couples would feel less inclined to marry because the state would have signaled that the institution was not deemed important or necessary as a component of procreation. This would lead, in his view, to an erosion of the traditional marital family as society's central institution, and, he argued, was a "compelling" concern for the state.

This is rank speculation, of course, since there is no way of proving that opening up marriage to same-sex couples will have any effect on the decision-making of different-sex couples about whether to marry. There is no credible evidence that opening up marriage to same-sex couples in the Netherlands or Canada, where same-sex marriage has now been available for several years, has had any demonstrable effect on marriage rates of different-sex couples. Kuhle finessed the point by arguing that the effect may not be discernible for many years. Johnson came back by pointing out that in its constitutional jurisprudence the Iowa court has rejected basing constitutional decisions on speculation not rooted in demonstrable fact.

There was some troubling back and forth about the burden of proof in the case. Johnson conceded that if the court decides this is a "rational basis" case, the burden is on the plaintiffs to show the irrationality of the existing policy, and he got into some argument with a few of the justices about whether the case's record includes such evidence. Johnson insisted that the plaintiffs could meet their burden by showing the illogic of the defendant's arguments, thus leaving no rational explanation in place for the continued exclusion of gay people. He confidently asserted that the record contained no evidence that would justify the ban.

Kuhle argued that there is no "ban," because gay men can marry women and lesbians can marry men. Sandra Day O'Connor disposed of the analogous argument - which will strike many as facetious in any event - in her concurring opinion to strike down the Texas sodomy law in the 2003 Lawrence case.

Justice Cady raised the question whether civil unions would suffice to remedy any potential constitutional inequality. This question was not posed to Kuhle, and he never mentioned the issue of civil unions as an alternative, either in his direct argument or his rebuttal. The question was instead put to Johnson, who insisted that civil unions would be inadequate, pointing to the well-established social meaning of marriage, and to the fact that civil unions would impose a mark of second-class citizenship. He drew a very effective analogy to Brown v. Board of Education, in which Chief Justice Earl Warren wrote that providing "separate but equal" schools did not satisfy the equal protection requirement of the 14th Amendment because of the signal of inferiority that it sent to black school children, causing hurt to their "hearts and minds" unlikely to be remedied. Lack of equal respect is a real harm, Johnson argued, and only full marriage equality would suffice.

The justices seemed to take Johnson's arguments quite seriously, and they raised serious logical objections in their questioning of Kuhle. Whether they were just playing devil's advocate, as judges sometimes will do in an oral argument, was unclear. I was able to forecast exactly the outcome in Hernandez v. Robles, the New York marriage case, after watching the oral argument, but the win in Connecticut came as a complete surprise to me. I thought the same-sex marriage forces were likely to win New Jersey after viewing that argument, but I was less certain after viewing California, though attorneys more familiar with the Supreme Court there were more optimistic.

So I will not make a prediction here, but I am upbeat about the prospect that the same-sex marriage argument will get a fair consideration from this court, and I am reasonably hopeful that if it receives a fair consideration, a Connecticut-like decision will result.

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