Varnum v. Brien: The Iowa Supreme Court Protects Same-Sex Marriage

On Friday, April 3, the Iowa Supreme Court unanimously decided in Varnum v. Brien that the Iowa legislature's exclusion of same-sex couples from the legal institution of marriage is unconstitutional. The opinion, written by Justice Cady, was particularly well written, and many non-legally-trained gay and lesbian activists have remarked on how easy it is to read and understand. Some have also pointed out the "Midwestern" quality of the decision, which places same-sex marriage in the framework of rights to equality of which Iowans are fiercely proud, rather than focusing more heavily on the unique nature of the rights of gays and lesbians. This ruling falls firmly within the promise of the state motto, "Our liberties we prize and our rights we will maintain."

Early in the opinion, the Court addressed the history and tradition argument that was pushed by the state at oral argument. "Our responsibility," the Court stressed, "is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time." The understanding of equal protection as a concept that is flexible and responsive to changing social norms is particularly powerful, and foreshadows the Court's analysis on the question of what level of scrutiny to apply.

Before considering the four factors used to determine level of scrutiny, the Court emphasized the flexibility with which it applies these factors, and it also emphasized the importance of the two uncontested factors – history of invidious discrimination towards the group in question and the relation of the group trait in question to a member of that group's ability to contribute to society. The Court used recent legislative enactments to bolster its argument on these two factors, but did not allow the non-discrimination legislation to tend against applying heightened scrutiny when considering the political powerlessness factor.

In fact, the Court found that the legislature's recognition of the disadvantaged position of gays and lesbians tended to weigh against political power, and its reasoning was reminiscent of the U.S. Supreme Court's in the Frontiero opinion. Like women, gays and lesbians are gaining power, but not yet powerful to the extent that the legislative process is sufficient to prevent discrimination. The Court also pointed out that despite growing political power, marriage is an exception to the rule – no state legislature has yet allowed civil marriage for gays and lesbians without a court order. The Court applied a similar flexible analysis to immutability and found that whether or not it is impossible to change one's orientation, orientation is "central to personal identity," and so it is inappropriate to require someone to change.

After considering these factors, the Court chose to apply intermediate scrutiny, asking whether the state proffered any justification for distinguishing between same-sex and opposite-sex couples in its marital scheme that is substantially related to an important governmental objective. The centrality of children in this particular case was reflected in the Court's consideration of several possible objectives related to the function of the opposite-sex couple-centered family.

The Court found that the reasoning surrounding an objective in preserving the traditional family structure was circular, simply allowing the state to perpetuate discrimination without valid reasons. The Court agreed with the state that it has an interest in creating an optimal child rearing environment, or in other words in protecting the interests of the child, but found that the means of prohibiting same-sex marriage are not sufficiently related to the objective. The Court agreed with the plaintiffs that the law is both over- and under-inclusive: it excludes gay couples that do not plan to parent, but includes straight couples that are not good parents. Same-sex couples are also legally able to parent in Iowa without marriage, so keeping them from marrying does not keep them from raising children. The Court also found that the exclusion of same-sex couples from marriage is not substantially related to a procreative objective, because not all straight couples procreate, and excluding gay couples from marriage does not actually increase procreation.

The state also offered two other arguments that the Court dismissed. The state claimed that the law promotes stability in opposite-sex relationships, but it did not offer reasons to support that argument, and so it was not sufficient under intermediate scrutiny. The state also suggested that the law met the objective of conserving state resources, but again the problem was that means and ends do not fit together tightly. The Court pointed out that considering the number of gay and lesbian couples in Iowa, if the real reason really was to conserve resources, the legislature might exclude some larger group.

The Court finally identified one hidden objective, namely one related to religion. In addition to pointing out the obvious fact that courts are not supposed to decide religious debates, the Court also noted that there is not religious agreement on this issue, and that individual religions can still choose whether or not to allow religious marriage of same-sex couples. This point may be important for those who hope to convince religious Iowans not to vote in favor of a constitutional amendment in 2012.

The Court's final conclusion was that civil unions or another form would not be appropriate, because they would discriminate just as full exclusion discriminates. The Court decided that "gay and lesbian people [must be allowed] full access to the institution of civil marriage." This decision is a victory for all Iowans, and just another reminder of how proud we can be of our state constitution's expansive version of equal protection – a model for states like California – and our state's history of protecting equality.

- Judith Faucette, JGRJ Student Writer 2008-09

Rebellious Lawyering Conference

A couple of weeks ago, I had the great fortune of attending the 15th Annual Rebellious Lawyering Conference with six of my peers from the University of Iowa College of Law.

What does it mean to be a rebellious lawyer?
In his opening remarks Harold Hongju Koh, Dean of the Yale Law School, shared that the Rebellious Lawyering Conference began as an effort to create an environment where students interested in public interest work would be in the majority. This does not mean that public interest work is the sole jurisdiction of rebellious lawyers. Arguably, every attorney should consider the impact and consequences of their work on public interests.

What is public interest work?
This is a broad term used to describe work on a wide range of issues. It is hard to define public interest work precisely because it encompasses such a variety of topics. One could say a common theme across public interest work is that it contemplates the effects of legal and policy decisions on society as a collective. Public interest work also approaches issues from the point of view of disadvantaged and vulnerable communities. A cursory inspection of the schedule revealed that the 15th Annual Conference would indeed place issues of public interest at the forefront. Panel discussions ranged from ‘Strategies for Combating Police Brutality’ to ‘Food Fight: Putting Food Policy and Agriculture Law on the Table.’ Though each of the panels presented thoughtful discussions about current legal issues none inspired and motivated conference attendees as did Van Jones, President of Green For All who provided the opening keynote address.

What do you stand for?
Jones shared that when he started law school he believed that he was enrolling in ‘justice school.’ For many students interested in public interest work, law school becomes the avenue to further justice in a particular issue. Jones gave the captive audience sage advice based on his first work experiences after graduating from law school. Public interest work is hard, funds are limited and there is likely more work that one person can take on.

Jones’ first work experiences were defined by what he was against. He was against police brutality, he was against new prison construction, and he was against youth incarceration. Jones had a transformative period in his life in which he re-centered his work to reflect what he stood for. He switched his perspective from being in opposition to proposition.

Jones dared the audience to consider that law libraries are full of excuses that justify the inequities that exists in our society. At the conclusion of Jones remarks, everybody in the audience was provoked to think beyond the problems and injustices that we see in the world. What alternatives are you proposing as rebellious lawyers?

- Jaqueline Orozco, JGRJ Student Writer 2008-09

Sioux City Anti-Same-Sex Marriage Ordinance Unnecessary

Proponents of equality were dealt another blow in Iowa recently, when the city council of Sioux City, Iowa proposed legislation stating that the city council supports only marriage between a man and a woman. While this proposal would be non-binding, it is nevertheless another public expression of intolerance and hostility toward same-sex couples. It is one more example, in a long chain of instances throughout the United States, in which a governmental body fails to recognize that homosexuality is an immutable part of individual identity. Worst of all, it is another illustration of unnecessary government regulation of personal choice; in this case, the relationship between two individuals, which does not implicate the rights of any other citizens.

Nothing frustrates me more than the opposition to gay marriage in my own country. I can think of absolutely no reason why homosexuals should not be allowed to marry, which is the main cause of my frustration. The reason for my failure to come up with a justification for banning same-sex marriage is because same-sex marriage does not affect any of my individual rights. Permitting same-sex couples to marry does not force me to do anything. Nor does it take away any right I already hold. It certainly would not affect my ability to marry my significant other. Quite simply, all legislation forbidding same-sex marriage does is expand the power of the government to control personal relationships, something that I find abhorrent in light of our nation’s enduring commitment to liberty and privacy.

So why are people so opposed to same-sex marriage in the United States? The Iowa case of Varnum v. Brien can shed some light on the matter, since the opponents of gay marriage in that case use the same arguments that are seen in most same-sex marriage cases. The main argument against same-sex marriage that the state proposes in Varnum is that the institution of marriage is based on procreation, and that the state has a legitimate interest in promoting procreation.

At first glance this might seem like a legitimate point, but let’s actually examine this assertion. How exactly does forbidding same-sex marriage promote procreation? The fact that homosexuals are not allowed to marry certainly does not affect a personal choice to have children in a heterosexual relationship. In fact, considering that Iowa considers homosexuals to be capable parents and allows them to adopt children, banning same-sex marriage actually works against the promotion of procreation because it denies children a more stable family unit. Considering the availability of adoption and modern medical procedures, such as in vitro fertilization, preventing same-sex marriage might even encourage the birth of fewer children since there would be fewer couples willing to consider having children without the protections and legal rights marriage confers (like custody rights).

However, the real tragedy is not just that the main reasons against same-sex marriage are illogical, but that most of the debate surrounding same-sex marriage ignores one of the most compelling and simple arguments available: that the legislature should not be able to control individual choices that do not interfere with the rights of anyone other citizens. Same-sex marriage cases involve our time-honored right to privacy, a right that many of the opponents of same-sex marriage often assert in their support of “small government.” The greatest threat to individual liberty is a government that can tell its citizens who they can associate with, what they can do in the privacy of their own home, and who they can choose to spend their life with.

Lost in the search for legitimate state interests and in arguments supporting heightened constitutional scrutiny for homosexuals, is the simple idea that personal autonomy is something that is treasured and deserving of protection in our country. This is a proposition that everyone in the United States seems to agree upon, which is why I will never understand how people can oppose gay marriage.

- Scott J. Burrill, JGRJ Student Writer, 2008-09

Who is John Yoo?

John Yoo is a well-known lawyer who advised the Attorney General during his time in the United States Justice Department’s Office of Legal Council. He is most famous for a memo that he wrote concerning interrogation techniques used on enemy combatants during the Bush administration. Within the memo he defended the United States’ interrogation techniques at the military base in Guantanamo Bay, Cuba, claiming that these practices did not rise to the level of torture. Within the memo he defined torture as acts inflicting severe physical, meaning severe enough to inflict organ failure, bodily impairment, or death. He defined mental torture as significant psychological harm that lasts for several months. He went on to suggest that the United States ignore the Geneva Convention when coming to conclusions regarding how to treat enemy combatants.

Additionally, Yoo is famous for his contributions to the Patriot Act, which some have regarded as a necessary and important step in combating terrorism while others have criticized it for limiting the privacy of American citizens. The Patriot Act increased the ability of federal law enforcement to listen to private phone calls and view private records. Needless to say, Yoo is a very controversial figure. His academic credentials are not in dispute. He graduated with a B.A. Summa Cum Laude in American History from Harvard University and went to law school at Yale. In addition to his work as an advisor to President Bush, he once served as general council for the Senate Judiciary Committee and is currently a law professor at the University of California, Berkeley. However, because of some of his practices, he has received much criticism for his views. Our law school even organized a small protest to his coming to the University just recently to deliver an address.

I think that how one might regard Mr. Yoo depends largely on one’s values and priorities. As a generally liberal person, I personally find John Yoo’s stance on torture appalling. Additionally, I worry that the Patriot Act compromises my privacy too much. I worry that the American government is morphing into “Big Brother” in its obsession with policing for terrorist activity. However, at the same time I realize that these opinions are dominated largely by my life experience and priorities regarding politics.

While Mr. Yoo has certainly stirred up controversy, a strong argument can be made that he has done his job in protecting American security. Yoo’s job was to help the United States fight terrorism and make the American people feel safe. Since September 11, 2001, we have been free of any large scale terrorist attacks. It can be argued that this is due to increased intelligence from sources such as federal surveillance and the ability to extract vital information regarding terrorist plans from captured enemy combatants. Yoo advocated for the Patriot Act and a loose definition of torture because he believed in protecting the American people at the expense of a little privacy and the well-being of some foreign prisoners at Guantanamo Bay.

America’s desire for security must be balanced against our desire for privacy and mercy for prisoners of war. Whether you place a higher value on security or individual rights will ultimately determine which side of the debate you end up on. So while one may not agree with Yoo and his policy regarding prisoners and the Patriot Act, consider the other side of the debate. While his ideas may clash with your own, remember that there are millions of Americans who consider what he is doing patriotic and even heroic.

- Tony Frank, JGRJ Student Writer 2008-09

Repeal of the "Global Gag Rule"

On January 23rd, one day after the thirty-sixth anniversary of Roe v. Wade, the case that legalized abortion in the United States, President Obama rescinded the "global gag rule." Also known as the Mexico City policy, this regulation put a restriction on U.S. government funding to international organizations and American NGOs working abroad based on their abortion-related policies. Organizations that provided abortion-related services or lobbied foreign governments in hopes of easing restrictive abortion policies were ineligible for funding under the rule.

This regulation has been tossed back and forth between presidents since Regan created it in 1984. Bill Clinton rescinded the rule on the twentieth anniversary of Roe v. Wade in 1993, and George W. Bush reinstated it immediately after taking office exactly eight years later. Obama promised to rescind the rule during the campaign, and made many women's rights activists nervous when he did not do so on January 22nd. However, the decision to rescind the rule a day later was not without reason – Obama explained that his intention was to respect pro-lifers who see the 22nd as a "day of grief," and while issuing a strong statement on his intention to protect a woman's right to choose and his commitment to women's rights in general, he did not want to mix a change in family planning policy up in the emotions of the day.

So far, Obama's record on women's rights as President is something of a mixed bag. In addition to rescinding the global gag rule, he also signaled his intent to restore funding to the U.N. Population Fund. President Bush has not spent any of the money authorized for the fund over the past eight years, due to his belief that the fund indirectly supports Chinese coercive abortion policies. However, Congress continues to authorize spending for the fund, which operates in 140 countries around the world and provides reproductive health services, education, and other services. In addition to trying to prevent sexually transmitted diseases including HIV and reduce poverty through family planning, the fund has programs aimed at reducing maternal mortality and closing the gender gap in education.

Obama also signed the Ledbetter Fair Pay Act, which takes away the 180-day time limit on women's differential pay claims. McCain notoriously referred to the act as a "trial lawyer's dream" in justifying his opposition during the campaign, but those in support of the act have pointed out that it can be very difficult to pull together a case in 180 days. The clock starts ticking when the employer makes the decision to pay a woman less than her male counterpart, and women may not be aware of the discrimination right away or be able to get information quickly.

On the other hand, once again showing his desire to keep the Christian right in the political picture and not alienate those across the aisle, Obama convinced House Democrats to drop a provision in the stimulus package that would provide $200 million for education and contraception. This was a politically hot topic, with conservatives decrying the inclusion of "condoms" in a stimulus package and liberals pointing out the financial benefits to the country in the long run in preventing unwanted pregnancies and sexually transmitted diseases. Despite resistance from his base, Obama chose to advocate dropping the provision to avoid ruffling political feathers.

Only time will tell whether President Obama can support women in the long run despite his political goals of maintaining bipartisan support, including the support of those opposed to family planning, sex education, and abortion. Some other policies that he may choose to rescind include a last-minute Health and Human Services "conscience" rule that allows health care providers at every stage to refuse to provide services including birth control for religious or moral reasons and a bevy of funding policies that require abstinence-only education, objection to sex work (even in countries where it is legal), and other moral tangents in order for domestic and international organizations to receive funds. Often, these provisions apply to funding that has a broad reach, extending to poverty reduction and increasing opportunities for women in developing nations. There is also a lack of logical correlation in many cases between the funding restrictions and their goal, for example in the case of AIDS in Africa where many infections are transmitted within marriage, making abstinence-only education pointless. Another action Obama might support is repeal of the Hyde Amendment, a law that bars federal Medicaid funding for abortion except in cases where the woman's life is in danger or she is a victim of rape or incest.

In my experience working for nine months on policies related to financial access to abortion, I learned that lack of access to abortion, and to other family planning services, can be dangerous to the woman and expensive for the state. Women on Medicaid, for example, may induce abortion in an unsafe environment because they do not qualify for coverage under the Hyde Amendment and cannot afford to support another child. This can lead to permanent damage or death, as well as costing the state much more than the cost of an abortion. Pregnancy is also very expensive for the state, as is the cost of supporting a woman who has more children than she can afford.
These are also not always "elective" abortions. Women can be faced with a very difficult choice when the fetus has an abnormality that will make it unlikely to survive or ever be a healthy child. Women whose health is endangered by the pregnancy also may not have access to a safe abortion if their state does not choose to provide Medicaid funding.

The same issues come up in the context of the global gag rule – women in developing countries, especially, may turn to unsafe abortions if their state does not allow or fund abortion. By taking away funding from organizations that help these women, the policy not only made it more likely that women would turn to unsafe funding because underfunded clinics could not help them, but also made unwanted pregnancies more likely because organizations could not afford to provide contraceptives and other reproductive health care services. In areas where AIDS runs rampant, contraception and education programs are absolutely crucial, and have nothing to do with abortion, but funding could be cut off from these programs if the same organization was involved with abortion services.

These issues are not only moral – they concern the health, safety, and lives of women. Family planning services can reduce poverty and the gender gap. They can also decrease maternal mortality rates, increase female education, and make pregnancies safer. For these reasons, I hope that Obama will continue to support reconsideration of these policies and a legal framework that empowers women in the U.S. and around the world.

- Judith Faucette, JGRJ Student Writer 2008-09

Equality in the U.S. is Not Yet Realized

Over the last few decades, America has made impressive leaps forward in civil rights and equality. The 60s saw the end of legal discrimination and race relations have been improving since. With the 60s also came the election of John F. Kennedy, the first non-Protestant to serve as President of the United States. On November 4, 2008, America proved that it has taken yet another step forward by electing a non-white candidate to the highest office in the nation for the first time in its history. A bi-racial President seemed like an impossibility just fifty years ago, but Americans have proved that most are willing to vote for a black candidate if they feel he is qualified. Many have suggested that this is the beginning of the end of racism and discrimination. As excited I am that the people of this country did not allow Barack Obama’s race to keep him from the White House, I think it is quite naïve to think that discrimination in America is dead or even dying.

Having a man of color in the White House is a sign that things are changing for the better, but there is still a long way to go with respect to American white society viewing blacks as equal. Once Obama leaves the Senate for the Oval Office, there will be no black senators. There are a few black representatives, but the number is not proportional to the percentage of the population blacks represent. Additionally, though Barack managed to win the Presidency, he did so despite erroneous contentions that he is Muslim, he has associations with terrorists and extremists, and that he was not born in the United States. All of these contentions are indicators of strong prejudice by a certain portion of the population based on fear, racial bigotry, and hatred of religious minorities.

Although our President-elect is a black man, racism is far from over. Though this is a great victory for race relations, it is still to be seen whether this country is willing to put aside race completely when evaluating candidates for political office. There has never been a serious candidate for President who was Asian, Latino, Arab, or of any other racial minority group. Too often Americans tend to view this country as white and black, forgetting about the other racial minority groups and the discrimination they face. Helping white society embrace all of the other minority groups as equals is a lofty task that lies ahead of us.

In addition to racial minorities, there are several other minority groups that face discrimination on a severe level even to this day. Women are still disappointingly underrepresented in politics, though we are making steady strides toward giving women more and more power in American society. Religious minorities still have a long fight ahead for their equality; at this point it is all but unimaginable that a Muslim, Buddhist, Hindu, or Atheist could make a serious run at a high political office. Gays and lesbians have a lot of work to do in changing social attitudes before they can make a serious run at the Presidency as they are still fighting for their basic rights. In the same election that saw the election of the first minority President, we also saw two states outright ban same-sex marriage, and Arkansas banned unmarried couples from adopting children, with the explicit goal of stopping same-sex couples from raising children.

What I would like to say to my fellow Americans is that we are right to celebrate the election of Barack Obama. It is an historic event, and no matter who one voted for, we should all be proud that the candidate’s race did not keep him from winning the election; it is evidence of bounds forward in the fight for eliminating discrimination in America. But we cannot allow this victory to spoil us and be satisfied. We must continue the fight for social and legal equality for all of the citizens of the United States. We have a long way to go, but if the next fifty years can show the same rate of improvement, then I look toward experiencing America’s future with great anticipation and hope.

- Tony Frank, JGRJ Student Writer 2008-09

Crack Cocaine Sentencing and Race in the U.S., Part II

The disparity of crack versus cocaine sentencing debate is one that still sparks considerable controversy. What is not debatable is the impact of crack cocaine sentencing on the black community. After the war on drugs was launched by the administration of Ronald Reagan, the campaign’s main attention was focused in the predominately black urban community. It was here that the negative effects of crack cocaine were felt the most. Meanwhile, the cocaine epidemic had the strongest presence in suburban white America and received much less attention. In an effort to remedy the negative consequences of drug abuse, legislatures across the country passed harsh penalties including mandatory minimum sentences targeting the derivative crack cocaine drug while users and distributors of the parent drug cocaine were able to escape with less punishment.

As a chemist, I feel this policy is counterintuitive. In fact, it took nearly 100 times the amount of cocaine in order to receive the same sentence for crack cocaine. It is important to note there is a broad disparity in the use of discretion related to the scope of drug arrests as it is often referred to as a victimless crime. Because police are not usually responding to a complaint, a significant amount of subjectivity controls how and where activity is policed. As a result, the effect on certain communities varies. This discretion may explain why there was a significant rise in the number of African Americans in prison or jail from between 1980 and 2003. The discretionary policies of police departments are also evidenced in drug arrests within the same state. For example, Dallas and Fort Worth are 30 miles apart, but drug arrests in Fort Worth increased 81% between 1980 and 2003. Meanwhile, Dallas experienced a decline of 42% for the same period. There is hardly any evidence to suggest that changes in drug use or drug selling justify this variation. Therefore, the discretion suggests that African Americans have been the target of discriminatory policing as well as discriminatory sentences for nearly the same drug.

It is true that there is a distinction between crack and cocaine, but it is also true that conceivably cocaine should have been the target of tougher penalties. You can’t have crack without cocaine. Also, let’s look at the truth that cocaine is used primarily by persons of privilege including many of the lawmakers and judges who played a hand in the disparity. Let’s look at the truth that historically disparities such as this which cut across racial, socioeconomic, and political lines do not exist by coincidence. Usually the disparity exists as a byproduct of discrimination. We cannot accept this.

As for those who argue in essence that both are illegal so there should be no legitimate complaint for blacks who have been affected disproportionately by the discrepancy absent of any legitimate reason, I simply cannot agree. Let’s assume that 80% of whites drive Lexus and 80% of blacks drive Toyota. Both groups drive their respective cars and the total number of cars driven everyday reflect the makeup of the population. Let’s then assume that both groups challenge speeding tickets at nearly the same frequency and that laws were crafted in a way that penalized speeding in a Lexus much less severely. If overwhelming evidence suggested that blacks were not only apprehended at a much higher rate, and more importantly sentenced more harshly, those same people who have no problem with the crack cocaine disparity would have to argue that there is nothing wrong with this either.

The fact is neither scenario warrants extreme differences in the legal penalties. If the focus is on the distinction between crack and crack cocaine, then one also conveniently ignores the fact crack does not exist in the absence of cocaine. In short, a framers’ intent argument is probably not the best argument considering those most affected by the disparity in the crack cocaine sentencing are black, but it would probably work well if we assumed for a second the framers were black. At least then, we could surely argue they would not have accepted these gross inequalities in the criminal justice system.

- Volney Brand, JGRJ Student Writer 2008-09