Gay Marriage: Iowa Supreme Court Wrong on the Law

by P.A. Madison on April 4th, 2009

Reading through the unanimous, 69-page decision of the Iowa Supreme Court striking down the state’s 10-year-old ban on same-sex marriage, reads more as an advocacy for same-sex marriage than constitutional fact finding. While I do not have much time to Blog on this case now, I will quickly point out deliberate and obvious factual errors the court used to invalidate Iowa’s same-sex ban.

The court declares the “primary constitutional principle at the heart of this case is the doctrine of equal protection.” The court assumes this doctrine of equal protection is found under Section VI of the Iowa Constitution that reads: “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.”

The constitutional provision that all laws shall be general and of uniform operation does not require them to operate uniformly on all the people of the State, nor, when relating to cities, on all the cities of the State, but if a law is made to operate upon a particular condition as to persons or property, and is operative whenever and wherever the same conditions exist, affixing the same consequences, it is a general law in its operation even though it only operates in one of the conditions or classes specified. State ex rel. West v. Des Moines, 31 L.R.A. 186, 96 Iowa, 521. 65 N.W. 818.

The second section of the clause that reads, “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, has a specific and well understood meaning and was borrowed from the Indiana State Constitution of 1851, which had adopted the language with the following understanding during the State constitutional convention:

The section which declares that the Legislature shall not bestow any title of nobility, nor confer hereditary distinctions, nor grant extraordinary privileges, was read a second time.

Mr. READ of Monroe moved to amend by striking out the words, “grant extraordinary privileges,” and inserting the following: “Nor grant to any citizen or class of citizens privileges and immunities which, upon the same terms, shall not belong equally to all citizens.”

Mr. READ said that his object in offering this amendment was to render the section more distinct and definite in its signification. It was not designed to Interfere with the rights of corporations, and had no reference whatever to a State Bank, nor would it affect any of the institutions of the State. He was convinced that such a principle as that embraced in the amendment should find a place in the Constitution. He had consulted a number of legal gentlemen on the subject, and they all agreed it was a sound principle. It was merely intended to prevent that which had been much complained of in this country, and which might be called class legislation.

Class legislation is one of those terms that today can generally mean whatever a person presents it to mean, but really never had anything to do with discrimination based on race, sex, age or religion. Essentially it meant giving a privilege to one or a few named individuals or companies while ignoring everyone else. It was namely in response to the outcry of granting the right of eminent domain to railroad companies. The granting of a exclusive liquor license only to a certain wealthy liquor magnet and no one else would also be considered class legislation because it excludes everyone else.

On the other hand, requiring $50,000 or more land ownership as a condition for granting a liquor license would not be class legislation because it is merely a condition and not a privilege being exclusively granted to one individual or company. Justice John Pettit, a delegate to the convention at the time, explained the proposed Indiana provision this way during the constitutional convention of 1851:

This section applies to the future action of the Legislature. It declares that the Legislature shall not hereafter place one class of citizens upon a pedestal of fame and wealth, and trample another in the dust of ignominy and poverty. That is what this section provides for. … Well, sir, the section before us provides that no rights shall be given to one class of the community that are not given, upon the same terms, the same conditions, and under the same circumstances, to all.

Same purpose was sought for the language during the Iowa constitutional convention of 1857. Future speaker of the Iowa House, John Edwards, who advocated for the insertion of the words from the Indiana Constitution, explained the meaning of the words this way during the Iowa convention:

[I]ts object is contained in a nut shell, and is merely this: It is to prevent the General Assembly from granting any privileges or immunities to any citizen or class of citizens that it would not be willing to grant to any other citizen or class of citizens upon the same terms. It is to prevent the Legislature from granting exclusive privileges to any class of citizens.

George Ells provided for the benefit of members of the Iowa Convention Webster’s difinition that “embraces all we claim for the word ‘privilege’”:

A particular and peculiar benefit or advantage enjoyed by a person, company or society, beyond the common advantages of other citizens. A privilege may be a particular right granted by law or held by custom, or it may be an exemption from some burden to which others are subject. The nobles of Great Britain have the privilege of being triable by their peers only. Members of Parliament and of our Legislatures have the privilege of exemption from arrests in certain cases. The powers of a banking company are privileges granted by the Legislature.

During the 1866 Nevada Constitutional Convention, identical language was proposed to be inserted into the Constitution that would have the following effect:

Mr. Nourse: I understand that the object of the section is to prevent such disgraceful proceedings as occurred in the last Legislature. … a prohibition of special legislation–that you shall not grant to John Smith and his associates, a charter to build a road here or there, but you may pass a general act, providing that persons who wish, may incorporate so and so, and thereupon, if you choose, may have the right of way across private property–may have the power to have it condemned to their own use by such course as may be prescribed by the Legislature; leaving the whole thing open to public competition, and not tied up to any right given specially, and irrevocably, to any favored corporation, like, for example, the Camden and Amboy Railroad in New Jersey.

In Strange v. Board, etc., 173 Ind. 640, the Indiana Supreme Court confirmed the above:

As we have shown, there may be classifications, and rights may be conferred upon some classes and not upon others. A familiar example is the conferring upon corporations and upon individuals, the right of eminent domain, and all that is required is that the privileges or rights conferred or liabilities imposed shall be the same to all who fall within the same class or are similarly situated, and that is an express recognition of the clause of our own Constitution (Section 23 which is identical to Iowa’s Section 6).

The Indiana Supreme Court in Morrison v. Sadler, 821 N.E.2d 15 (Ind. App. 2005) has already tackled the same issues (DOMA) as presented before the Iowa Supreme Court under identical constitutional language and held limiting marriage to opposite-sex couples does not violate the State Equal Privileges and Immunities Clause. The Indiana appellate court also pointed out that there “is binding United States Supreme Court precedent indicating that state bans on same-sex marriage do not violate the United States Constitution.”

Thomas Cooley says: “Many states prohibit the intermarriage of white persons and negroes; and since the fourteenth amendment this regulation has been contested as the offspring of race prejudice, as establishing an unreasonable discrimination, and as depriving one class of the equal protection of the laws. Strictly, however, the regulation discriminates no more against one race than against another; it merely forbids marriage between the two. Nor can it be said to so narrow the privilege of marriage as practically to impede and prevent it. Race prejudice, no doubt, has had something to do with establishing this law, but it cannot be said to be so entirely without reason in its support as to be purely arbitrary. The general current of judicial decision is, that it deprives a citizen of nothing that he can claim as a legal right, privilege or exemption.

The court demonstrated their incompetence in interpreting constitutional law when they wrote: “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.‘” Would disallowing marriage to “one man and one woman,” who are closely related also render marriage “no right at all”? Put a different way, would marriage be “no right at all” if closely related (brother and sister) gay or lesbian couples were disallowed by law?

If the answer is no (and this is the well-established answer), then neither can disallowing marriage between the same sexes would have no material effect on any right by law to marriage between opposite-sex partners. The court is simply grasping at straws here.

CONCLUSION

Why did I devote attention to the debates of both the Indiana and Iowa constitutional conventions? Because the Iowa Supreme Court uses textual and historical arguments when interpreting the Iowa Constitution. The court says the purpose of any constitutional inquiry is “to ascertain the intent of the framers. Redmond v. Ray, 268 N.W.2d 849, 853 (Iowa 1978).

The court relies on plain text that “give[s] the words used by the framers their natural and commonly understood meaning.” Howard v. Schildberg Constr. Co., 528 N.W.2d 550, 553 (Iowa 1995). The court will “also examine the constitutional history and consider ‘the object to be attained or the evil to be remedied as disclosed by circumstances at the time of adoption.’” Id.

When the constitutionality of a statute is merely doubtful, the Iowa Supreme Court will not interfere, as it must be shown that legislative enactments clearly, palpably and without doubt infringe upon constitutional rights before an attack will be upheld. State v. Jaeger, 249 NW2d 688 (Iowa, 1977).

Therefore, Iowa laws of marriage are neither class legislation nor does the law grant exclusive privileges or immunities to any one class at the exclusion of all other classes of citizens who meet the conditions of law for entering into marriage. Likewise, denial of SSM also operates equally on all couples who meet the condition of being same-sex and places no new burdens or special obligations upon them.

And finally: “If all laws were held unconstitutional because they did not embrace all persons few would stand the test.” City of Clinton v. Wilson, 257 Ill. 580; Hawthorn v. People, 109 id. 302.

UPDATE: I found some time today to update this on my way out the door, and also removed a few lines that could be misunderstood.

Related: Historical Meaning Behind ‘Equal Protection of the Laws’


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21 Responses | Leave a Comment
  1. The bottom line is that Governor Chet Culver did exactly what “conservative” “Republican” Governors Romney and Schwarzenegger did.

    Culver pretended that the court’s opinion was actually the new “law of the land.”

    Culver, like Romney and Schwarzenegger, violated his oath by illegally authorizing alterations to and issuance of marriage licenses to same sex couples without a binding, enabling, accompanying statute.

    Culver belongs behind bars for his flagrant act of executive tyranny.

    Shame on the Iowa Republicans for not one elected representative having the courage to uphold their sworn oath and impeach and remove Culver from office.

    We are deluding ourselves if we claim that we are a constitutional republic.

  2. JimAZtec says:

    Stephen Toothman said: “The court has not made new law, any interpretation that says otherwise is ignoring 200 years of jurisprudence beginning with Marbury V Madison.”

    Yes they have… the law says marriage is between a man and woman, the court vetoed this law, and established a new law that says opposite-sex couples have a new right to marry contrary to any law.

    Stephen Toothman said: “The Iowa Supreme Court struck down what they determined in fact and in law to be an unconstitutional statute. That is indeed one of the powers of the supreme court.”

    No, they did not rely on facts in their determination. If they had they would had no choice but to uphold the law. The 7 justices were so lost and confused that they insisted the Iowa constitution “establishes three separate, but equal, branches of government.” They consider themselves equal to the executive and legislative branches with equal powers. Now that is scary.

    Stephen Toothman said: “I have searched and searched for this language in Iowa Code, in the documents of the Iowa Supreme Court, and even asked a couple lawyer friends of mine to find it. We have all come up empty. So you if you would care to provide a citation for this or some kind of reference, I would appreciate it. It is however certain mentioned no where in the text of the opinion in question.”

    Well if you could not pick it out from Madison’s conclusion, see Allen v. Clayton, 63 Iowa, 11, 18 N.W. 663, among a dozen on the subject.

  3. Stephen Toothman says:

    In Reply to JimAZtec:

    I apologize for being tardy in my reply, I have not had a chance to get back here to leave a comment.

    Let me deal with your statements in reverse order:

    First:

    “That is true, but no amount “heightened scrutiny” can make the court a legislative body with full legislative powers or provide new powers for the court to modify or expand constitutional provisions.”

    The court has not made new law, any interpretation that says otherwise is ignoring 200 years of jurisprudence beginning with Marbury V Madison. The Iowa Supreme Court struck down what they determined in fact and in law to be an unconstitutional statute. That is indeed one of the powers of the supreme court.

    Second:

    “The Iowa court’s canons of statutory and constitutional construction says, “First, the context relating to the same subject-matter; Second, the evil intended to be remedied by the adoption of the constitution; Third, the debates in the convention which formed the constitution; Fourth, the contemporaneous legislative construction of the language in question; and Fifth, the practical construction given to the language, and long acquiesced in, by the people of the state.””

    I have searched and searched for this language in Iowa Code, in the documents of the Iowa Supreme Court, and even asked a couple lawyer friends of mine to find it. We have all come up empty. So you if you would care to provide a citation for this or some kind of reference, I would appreciate it. It is however certain mentioned no where in the text of the opinion in question.

  4. JimAZtec says:

    In Reply to Stephen Toothman:

    “The Iowa Supreme Court has in many cases in the past has made clear what the language from Section VI means and it is not limited simply to “class legislation”. Look back at the precedents the justices have used if you have any doubt about this.”

    The Iowa court’s canons of statutory and constitutional construction says, “First, the context relating to the same subject-matter; Second, the evil intended to be remedied by the adoption of the constitution; Third, the debates in the convention which formed the constitution; Fourth, the contemporaneous legislative construction of the language in question; and Fifth, the practical construction given to the language, and long acquiesced in, by the people of the state.”

    Without such rules the court can do exactly what it did, pull crap out of their asses that have little to do with the constitution :-) Madison simply employed the courts own rules for determining the constitutionality of Iowa’s DOMA.

    “The Iowa Supreme court has three standards of review and in this case stated that this act required higher scrutiny than the “rational basis test” and therefore has larger toolkit to address questions of constitutionality.”

    That is true, but no amount “heightened scrutiny” can make the court a legislative body with full legislative powers or provide new powers for the court to modify or expand constitutional provisions.

  5. JimAZtec says:

    In Reply to Garwin T: Slavery and women rights were dealt with democratically per the constitution and not through some tyrannical court making up its own law and rights.

  6. Stephen Toothman says:

    First let me say thank you, I have been asking the opponents of marriage equality to provide a rational legal argument as to why the Iowa Supreme Court was wrong. Though you final comment about pedophilia does not help your case. As I am sure you are well aware pedophilia is a crime of consent and is not related to the question of marriage equality at all.

    However, I think your analysis misses the point of the opinion on several counts.

    1. The Iowa Supreme Court has in many cases in the past has made clear what the language from Section VI means and it is not limited simply to “class legislation”. Look back at the precedents the justices have used if you have any doubt about this.

    2. You rely on Morrison v. Sadler from Indiana as a persuasive argument. What you fail to explain is that the Indiana Supreme only uses the “rational basis test” for questions of constitutionality. The Iowa Supreme court has three standards of review and in this case stated that this act required higher scrutiny than the “rational basis test” and therefore has larger toolkit to address questions of constitutionality.

    3. You fail to address one of the core pieces of the opinion. While on its face this section of Iowa Code would not appear to discriminate, the justices held this is not the case. They state that because of their sexual orientation limiting marriage to “one man and one woman” is “no right at all”. This provides the underpinning for the justices to say homosexuals are indeed similarly situated and are indeed being discriminated.

  7. Garwin T says:

    The second section of the clause that reads, “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,” has a specific and well understood meaning and was borrowed from the Indiana State Constitution of 1851…

    Even considering that your reference to the Indiana Constitution may be correct, the Constitution is an evolving document. Slavery per Dred Scott was constitutionally protected and Women’s rights were nihl in the mid 1800s but we have since grown to embarce equal protection rights for minority who were once not protected. That’s the bueaty of it…

  8. St. John says:

    I must say I enjoyed reading this. Your conclusion is more legally sound then the one put forward by the court.

  9. Joel Gray says:

    In Reply to Wilford Brimley: “Stay tuned for federal court cases. Though Iowa has been forced to recognize homosexual marriage, all of those people will still be single under federal law.”

    Federal law? What the heck happened to States’ Rights? Keep the federals off our backs!

  10. JimAZtec says:

    David Schwartz said: “The historical meaning is irrelevant. What matters is what it means now.”

    Ah, so no longer are constitutions meaning required to be changed through changes as provided by each instrument, just load the court with “Warren” jurists and reinvent the meaning?

    A constitution that only means what 5 selected justices says it should mean is as worthless as the justices themselves.

  11. JimAZtec says:

    In Reply to Matt:

    I read the opinion.

    This Iowa ruling is nothing but a weak, incompetent attempt to make a case for heightened scrutiny and the court used highly suspect SCOTUS rulings such as Brennan’s opinion in the highly divisive case of Plyler v. Doe (LMAO!). This is another attempt by the court to place itself above the legislature or voters under the false pretense of interpreting law. The fact is section 6 never has been historically viewed as demanding “laws” to operate on everyone alike. If it had then Iowa’s past laws of excluding woman from practicing law, trade, real estate or other licenses would have been instantly found invalid. It took an act of the legislature to confer rights to woman and not any dorky supreme court acting as a legislature.

    Section 6 has never changed – it is the same words under the same meaning and purpose for which the words were adopted and for the first 150 years been consistently recognized by many different state courts.

    This IA ruling is as odious as when the SCOTUS once ruled that a federal law that read estates could only go to “creditors, legatees, assignees or strangers to the blood” doesn’t mean what it says, but really means “next of kin.”

    Troy: You rock.

  12. Matt says:

    Hey Troy -

    Try reading the opinion. Your theory of the “classification” and whether same-sex couples are similarly situated was considered and then repudiated by all seven of the Iowa justices.

  13. David Schwartz says:

    The historical meaning is irrelevant. What matters is what it means now.

    For example, when the framers of the Federal Constitution wrote “due process”, they mean process that is actually in fact due. They would find the argument absurd that they didn’t include a right to DNA evidence because DNA evidence wasn’t *considered* due at the time they wrote the Constitution.

    A right to “due process” means that showing that some process is in fact due means that it is in fact a right.

    The case is the same here. What was considered part of that right at the time does not determine what is part of the right now.

    This argument is even wronger, if that’s possible. It not only argues that only those rights considered at the time apply but goes further to argue that only those particular mechanisms of violating the right considered at the time apply. So even if you had a right to privacy, it wouldn’t extent to, say, electronic espionage, since nobody at the time considered electronic espionage to violate a right to privacy.

  14. Troy says:

    “all that is required is that the privileges or rights conferred or liabilities imposed shall be the same to all who fall within the same class or are similarly situated”

    Same sex couple do not fall within the same class or are similarly situated as a man and a woman to argue discrimination. Only a hetrosexual couple can have a valid complaint if they were not granted a marriage license due to some law singling them out because only they fall within the the rights conferred!

    Why is this so challenging for the court? Pretty simple shit.

  15. Bob Longfellow says:

    I agree the court’s reliance of section six is suspect in light of the history of exclusions by law the court has upheld in the past. Generally speaking, states with the same constitutional clause as Indiana and Iowa rarely found legislative acts to be class legislation under these clauses.

  16. Matt says:

    Even if P.A. Madison’s argument that Section VI of the Iowa Constitution should be construed differently is colorable, the Iowa Supreme Court has a massive line of precedent conforming to its present application of Section VI as a constitutional provision coterminous with the U.S. Supreme Court’s interpretation of the Equal Protection clause of the Fourteenth Amendment.

    In sum, sorry, P.A. Madison. History has passed you by.

  17. Law Stud says:

    The meaning placed on the clause would eliminate the clause from being used to strike down Same Sex Marriages because such laws have no effect of “granting” an exclusive privilege of marriage to any one citizen or class of citizens.

    Exactly correct. If excluding same sex couples from marriage is class legislation then entire statutes of all kinds become unconstitutional. The court stepped far out of its constitutional bounds here.

  18. Craig says:

    In Reply to Spencer Tracy: The court failed to make any kind factual, convincing basis for insisting Section 6 demands non-discrimination in marriage. The simple fact is the Iowa constitution demands no such thing as its history proves.

    Was pretty stupid of the court to say section 6 is a import of the 14th amendment when there was no 14th amendment when Iowas constitution was framed! The court is simply making up shit which only moonbats would be unwilling to question.

  19. Spencer Tracy says:

    Your assessment is incorrect. You provide a convoluted, nearly incomprehensible analysis of the court’s decision. In fact, their language is quite clear and precise. The State of Iowa MUST provide equal protection to all citizens. Since there is no demonstratable and compelling reason to exclude a person simply based on sexual orientation, those people shall enjoy marriage benefits. Churches, of course, may continue to marry only the people they choose. Governments, however, may not allow religious ideology (the routine source of this bigotry) to cloud good judgment. You may not like it but it’s the law now. Get used to it.

  20. Wilford Brimley says:

    Everyone already has the same rights and responsibilities of marriage. Any eligible man can marry any eligible woman. Everyone is limited to one marital partner.

    Anyone can live with and love whoever they want, same sex or opposite sex. We don’t have to change the definition of marriage to make Lambda Legal happy. Five years out, in Massachusetts, most gays in relationships aren’t even married. Everyone can live their life as they want. The issue is whether the government has to officially recognize those relationships.

    Stay tuned for federal court cases. Though Iowa has been forced to recognize homosexual marriage, all of those people will still be single under federal law.

  21. To Whom it may concern:

    I believe that iss right for everyone to chose what kind life want and be able love someojne of same sex.

    Thank you for leading voice my opinion.

    Sincerely;

    Rosalyn Teplitz

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