In this brief essay, I will first summarize the Iowa Supreme Court’s “reasoning” in Varnum v. O’Brien, and then highlight two parts of its opinion which most clearly defy reason, subvert established law, and threaten children all at the same time. I will close with a look at the court’s treatment of religion.

The Supreme Court of Iowa voted unanimously (7-0) to overturn a law passed by the Iowa Legislature in 1998 which provided that “only a marriage between a male and a female is valid.” (Iowa Code sec. 595.2(1)). The court held that the law violated the state constitution’s “equal protection” clause by treating gay and lesbian persons differently from heterosexual persons, without a sufficient justification.  The court required the defendant (in this case the Polk County Recorder in his official capacity) to demonstrate that the statute furthered an “important governmental objective” by means “substantially related to the achievement” of the objective.  The recorder proffered the usual objectives states offer in such challenges.  Among these are the two we will consider in more detail: that dual-sex marriage served that state’s interests in procreation, and that it serves the state’s interest in providing what it called an “optimal” environment for children, i.e. married parents of both sexes.  But the Iowa Supreme Court judges rejected the state’s claims of a relationship between these objectives and dual-sexed marriage. They furthermore claimed that even if Iowa really intended its marriage law to serve them, a ban on same-sex marriage was not a sufficiently narrowly-tailored means for doing so.

Before turning to a closer consideration of the arguments back and forth over the sufficiency of the state’s objectives, it should be noted that anyone reading the opening paragraph of the Iowa opinion would have little doubt how the state’s arguments would fare. The court’s opinion opens with a litany of the virtues of gay and lesbian Iowans, and of their contributions to Iowa society.  It treats the reader and the defendant/state condescendingly and alike: as listeners who probably need reminding that homosexual human beings possess human dignity.

Here is how the court irrationally interprets the two most important arguments offered by the state of Iowa on behalf of dual-gender marriage. First, we look at the state’s argument that marriage fosters procreation. Before turning to the confusion that is the court’s interpretation of and response to this argument, it helps to consider what the state must have intend logically by its procreation argument.  First, the state must have meant that it wants to encourage procreative relationships. The state wants society itself to continue, to have a future. Second, the state wants to link procreation to marriage.  This shades into the second argument that marriage is the best place for rearing children, but it also has additional content which is perhaps best understood by distinction.  If procreation is separated from marriage, then marriage is all about adult interests and wants – romance, social validation or state benefits.  It is not about working together to build the future, or sacrificing oneself for more vulnerable others.  More than arguably, recent decades’ delinking of marriage and procreation, and sex and procreation, and the vaulting of adult’s over children’s interests,  has so demonstrably harmed children, that the need to link marriage and procreation is more urgent now than ever.

Now consider how the Supreme Court of Iowa treated the state’s procreation rationale.  The court first calls the state’s identification of its interest in “procreation,” a “semantic trick.” It says that the state has simply taken the one difference between same and opposite sexed couples, and, in a circular manner, made it the rationale for discriminating against the former.   When it does finally look a bit more closely at the state’s argument, it rebuffs it summarily in a total of two paragraphs . “Gay and lesbian persons are capable of procreation,” the court asserts… and then says nothing more on the subject.  Unpacking this, we see that the Iowa Supreme Court is actually claiming that there is not a shred of difference between a the process of  conception from an act of intercourse between one’s parents, and conception in a laboratory using the gametes of one or more “donors,” and maybe a surrogate womb. There is not a shred of difference between being reared by one’s biological parents and never knowing one or both biological parents.  The Court sees no need for messy testimony from the increasing numbers of children seeking their biological parents, no need to think about the threat of commodifying donors or “made to order” children, no need to talk about the fate of half a million frozen embryos.  No need even to think about the vast difference in numbers between numbers of same sex couples seeking to have test-tube children, and the number of opposite sex couples who procreate.  Way too complicated, and way too long to fit into the two paragraphs the Iowa Court thought the issue deserved. Also, not what judges do (legislatures do this).

The court’s final treatment of the proffered procreation rationale is equally brief, but even more bizarre. The court claims that, in order to succeed with its procreation rationale, the state must  prove that banning same sex marriage causes gays and lesbian to turn straight in order to marry and procreate. Since the state cannot prove this, then it can’t show that banning same sex marriage promotes procreation.

There are no words to characterize what the court proposed here. It reflects a court willing even to appear ridiculous in order to have its way.

Iowa also argued that “social scientists say with confidence” that marriage “is the optimal milieu for child rearing.”  Thus the state intended its ban on same-sex marriage to promote child rearing within a family bonded by marriage.  This proposition finds support not only in common sense, but – as the state suggested – by increasing amounts of scientific research.  There is a great deal of evidence that children are naturally desirous of knowing their origins and maintaining a link with their biological parents. Margaret Somerville of McGill University, and others, have written persuasively of this.  There is no conclusive evidence regarding the outcomes for children reared in same-sex households. Yet in a mere 11 paragraphs, the Iowa Supreme Court reaches a conclusion that legions of expert social  scientists, child-developments specialists, family systems theorists, psychologists and others conclude that they could not.  Said the court: “Plaintiffs’ presented an abundance of evidence and research, confirmed by our independent research, supporting  the proposition that the interests of children are served equally by same-sex parents and opposite-sex parents.”   What of the state’s opinion that children are more likely reared beneficially with their own, dual-gender parents? It is “thoughtful and sincere,” says the court, but “largely unsupported by reliable scientific studies.” The court goes further here, in fact, and holds it really believes that the “entire concept of a need for dual sex parenting is “based more on stereotype than anything else.”

One final note about the Iowa Supreme Court’s response to the state’s claimed objectives in banning same-sex marriage. The state never claimed that its objectives included forwarding particular religious ideas about marriage. But that didn’t stop the Iowa Supreme Court from attributing this argument to the state. The court called religious opposition to same –sex marriage a rationale “left unspoken” and “most likely motivat[ing]” the state.  It is extraordinary that the court would “finger” religion without any encouragement from the defendant in this case.  It seems nothing more than a foil for the court to instruct readers that some religious communities support same sex marriage, and to suggest – after disparaging all the rest of the state’s proffered rationales – that the forbidden rationale of “religious belief” is all they really have. By treating religion in a separate set of pages in its opinion, too, the court forwards the notion that there is no overlap between religious and rational arguments against same-sex marriage.

Much, much more could be said about the flaws and even insults of this opinion, particularly its frightening manner of reading rights into state constitutions which it admits would be “unimaginable” to the drafters.   So many commentators view this opinion as “outrageous” that the court’s overreaching might actually backfire on the cause so eagerly embraced by justices who insist repeatedly upon their impartiality, and superior ability to “translate” the equal protection clause of their state’s constitution.   

For now, both houses of the Iowa legislature are firmly in the hands of Democrats who support same-sex marriage. In fact, Iowa’s Senate Majority Leader is not in the least ashamed that he is personally preventing the people and the legislature of Iowa from even debating the issue this year. There are several methods available for amending the Iowa Constitution. It cannot not be done in less than years. Legislators have the power to prevent amendments no matter which method is used. But the people of Iowa are stirred up, even shocked by what has been done to them by seven unelected judges. They are formulating their strategy now.

(c) Culture of Life Foundation 2009.  Reproduction granted with attribution required.