Varnum v. Brien

763 N.W.2d 862 (Iowa 2009)

Justice Cady, delivered the opinion of the court.

1. This lawsuit is a civil rights action by twelve individuals who reside in six communities across Iowa. Like most Iowans, they are responsible, caring, and productive individuals. They maintain important jobs, or are retired, and are contributing, benevolent members of their communities. They include a nurse, business manager, insurance analyst, bank agent, stay-at-home parent, church organist and piano teacher, museum director, federal employee, social worker, teacher, and two retired teachers. Like many Iowans, some have children and others hope to have children. Some are foster parents. . . .

The twelve plaintiffs comprise six same-sex couples who live in committed relationships. Each maintains a hope of getting married one day, an aspiration shared by many throughout Iowa. . . .

As other Iowans have done in the past when faced with the enforcement of a law that prohibits them from engaging in an activity or achieving a status enjoyed by other Iowans, the twelve plaintiffs turned to the courts to challenge the statute. They seek to declare the marriage statute unconstitutional so they can obtain the array of benefits of marriage enjoyed by heterosexual couples, protect themselves and their children, and demonstrate to one another and to society their mutual commitment. . . .

III. The framers of the Iowa Constitution knew, as did the drafters of the United States Constitution, that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” and as our constitution “endures, persons in every generation can invoke its principles in their own search for greater freedom” and equality. See Lawrence v. Texas (2003). . . .

IV-A. The primary constitutional principle at the heart of this case is the doctrine of equal protection. The concept of equal protection is deeply rooted in our national and state history, but that history reveals this concept is often expressed far more easily than it is practiced. . . .

In the first reported case of the Supreme Court of the Territory of Iowa, In re Ralph (Iowa 1839), we refused to treat a human being as property to enforce a contract for slavery and held our laws must extend equal protection to persons of all races and conditions. This decision was seventeen years before the United States Supreme Court infamously decided Dred Scott v. Sandford (1856), which upheld the rights of a slave owner to treat a person as property. Similarly, in Clark v. Board of Directors (Iowa 1868), and Coger v. North West. Union Packet Co. (Iowa 1873), we struck blows to the concept of segregation long before the United States Supreme Court’s decision in Brown v. Board of Education (1954). Iowa was also the first state in the nation to admit a woman to the practice of law, doing so in 1869. . . . In each of those instances, our state approached a fork in the road toward fulfillment of our constitution’s ideals and reaffirmed the “absolute equality of all” persons before the law as “the very foundation principle of our government.” See Coger.

So, today, this court again faces an important issue that hinges on our definition of equal protection. This issue comes to us with the same importance as our landmark cases of the past. The same-sex-marriage debate waged in this case is part of a strong national dialogue centered on a fundamental, deep-seated, traditional institution that has excluded, by state action, a particular class of Iowans. This class of people asks a simple and direct question: How can a state premised on the constitutional principle of equal protection justify exclusion of a class of Iowans from civil marriage? . . .

IV-B. The foundational principle of equal protection is expressed in article I, § 6 of the Iowa Constitution, which provides: “All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.” . . .

IV-E. The County initially points out that § 595.2 does not explicitly refer to “sexual orientation” and does not inquire into whether either member of a proposed civil marriage is sexually attracted to the other. Consequently, it seizes on these observations to support its claim that the statute does not establish a classification on the basis of sexual orientation because the same-sex civil marriage ban does not grant or withhold the benefits flowing from the statute based on sexual preference. Instead, the County argues, § 595.2 only incidentally impacts disparately upon gay and lesbian people. . . .

It is true the marriage statute does not expressly prohibit gay and lesbian persons from marrying; it does, however, require that if they marry, it must be to someone of the opposite sex. Viewed in the complete context of marriage, including intimacy, civil marriage with a person of the opposite sex is as unappealing to a gay or lesbian person as civil marriage with a person of the same sex is to a heterosexual. Thus, the right of a gay or lesbian person under the marriage statute to enter into a civil marriage only with a person of the opposite sex is no right at all. . . . Instead, a gay or lesbian person can only gain the same rights under the statute as a heterosexual person by negating the very trait that defines gay and lesbian people as a class — their sexual orientation. In re Marriage Cases (Cal. 2008). The benefit denied by the marriage statute — the status of civil marriage for same-sex couples — is so “closely correlated with being homosexual” as to make it apparent the law is targeted at gay and lesbian people as a class. See Lawrence (O’Connor, J., concurring) (reviewing criminalization of homosexual sodomy and concluding that “[w]hile it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the] sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class.”). . .  Thus, we proceed to analyze the constitutionality of the statute based on sexual orientation discrimination.

[The court determined that classifications based on sexual orientation required some level of heightened scrutiny under the Iowa Constitution, but as they held that the marriage statute in question would not withstand intermediate scrutiny, they did not have to determine whether to employ strict scrutiny.] . . .

IV-H-2. [T]he question we must answer is whether excluding gay and lesbian people from civil marriage is substantially related to any important governmental objective.

IV-H-3. The County has proffered a number of 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. . . .

IV-H-3-a. 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 marriage.

This approach is, of course, an empty analysis. It permits a classification to be maintained “‘for its own sake.'” Kerrigan v. Comm. of Public Health (Conn. 2008) [quoting Romer v. Evans (1996)]. 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.'” . . .

IV-H-3-c. The County also proposes that government endorsement of traditional civil marriage will result in more procreation. It points out that procreation is important to the continuation of the human race, and opposite-sex couples accomplish this objective because procreation occurs naturally within this group. In contrast, the County points out, same-sex couples can procreate only through assisted reproductive techniques, and some same-sex couples may choose not to procreate. While heterosexual marriage does lead to procreation, the argument by the County fails to address the real issue in our required analysis of the objective: whether exclusion of gay and lesbian individuals from the institution of civil marriage will result in more procreation? If procreation is the true objective, then the proffered classification must work to achieve that objective. . . .

[T]he sole conceivable avenue by which exclusion of gay and lesbian people from civil marriage could promote more procreation is if the unavailability of civil marriage for same-sex partners caused homosexual individuals to “become” heterosexual in order to procreate within the present traditional institution of civil marriage. The briefs, the record, our research, and common sense do not suggest such an outcome. . . .

IV-H-3-d. A fourth suggested rationale supporting the marriage statute is “promoting stability in opposite sex relationships.” While the institution of civil marriage likely encourages stability in opposite-sex relationships, we must evaluate whether excluding gay and lesbian people from civil marriage encourages stability in opposite-sex relationships. The County offers no reasons that it does, and we can find none. . . .

State government can have no religious views, either directly or indirectly, expressed through its legislation. Knowlton v. Baumhover (Iowa 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. . . .

IV-I. 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 constitution requires. . . .