Thursday, April 30, 2009

Ah, Tradition!

In 1959 Miss Oklahoma, Anita Bryant went on to be named second runner-up in the Miss America Contest.

In 1977, Anita Bryant launched the "Save Our Children" campaign in Dade County Florida after the local government extended legal protections against discrimination in employment, housing and public accommodation to include "sexual orientation," which gave queers of the time a modicum of security in a hostile homophobic environment.

In 2009, the reigning Miss California loses the top spot in the Miss America Contest and immediately launches a campaign to promote homophobia by joining forces with the contemporary movement to "Save Our Straight Marriages" even before she has a chance to enjoy life as a D-list celebrity and orange juice queen like Bryant did.

Carrie Prejean ought to talk to Anita Bryant before letting herself be used by the hateful forces trying to keep same-sex couples from marrying. But then she would have to find the rock of obscurity that Anita crawled under after her marriage was ruined and her lucrative contract with the Florida orange growers association was revoked for her being so obviously retarded.

Miss California: your 15 minutes of fame is up. Please join Ms Bryant and the other high-profile losers who chose to open their damn fool mouths instead of just doing your bimbo best to stand there, pose and give hard-ons to straight men.

Monday, April 27, 2009

What's all the fuss over a little Torture?

Some people I know - and who should certainly know better - still don't get it.

To this day I continue to hear the opinion that the real problem was the release of those photos from Abu Ghraib that broke the news story, exposing the American torturous treatment of Iraqi detainees. As if it would be better had no one ever found out about how we conduct our invasions of any foreign country because "they" deserve it because "they attacked us."

Do you think I do not want to scream?

That kind of attitude may have been excusable in some quarters in the first days after 9/11 and was bound to survive in those who are predisposed to blind reactionary patriotism that was stoked and exploited by the war-hungry, profiteering forces that had inhabited the Administration after the Bush coup of 2000. But after all we've learned about the rationale for going to war in Iraq - WMDs, ties to Al Queda, yellow cake uranium - all now exposed and accepted for being nothing but a pack of self-serving evil lies - how can anyone separate out the well-known acts of torture from all the other surreal and malicious lies we are still force-fed by the cynics and apologists for the deposed Bush/Cheney/Rumsfeld/Rove/Rice/Ascroft/Gonzales cabal?

With the recent release of those torture memos it has come to light that this too - TORTURE of human beings - was just another part of their PR campaign engineered to establish a reason for the invasion of Iraq AFTER it became clear that all their other reasons were nothing but bold face lies.


Apparently, most of America is not.

Since the memos came out all the TV talk still centers on whether waterboarding is torture or whether torture "works" or not. We have become so jaded - so inured to hearing of the depths to which the Bush Administration was willing to dive in order to justify their nefarious war-mongering intentions - that we just gloss over the revelations that torture of detainees in the Iraq War were NEVER ABOUT obtaining useful information that might keep us safe or help defeat our enemies who threaten America.

It was all about justifying the Bush-led invasion of a foreign country on false pretenses and manufactured intelligence that has consistently proven to have been invented in order to rationalize and cover up their high crimes and misdemeanors.

Torture of human beings was plainly carried out by our troops and mercenaries under orders straight from the top of this country's government.

Bush, Cheney, Rumsfeld, Gonzales, Rice and the whole criminal cabal then lied - and continue to lie - to cover up and distract from the facts that are now indisputably evident from their own official words contained in the de-classified memos. Those memos detail how our troops were used to force detainees to say what the cabal wanted to hear -- what they wanted US to hear whether it contained any truth or not.

Cutting through all the shit, this is the bottom line and perfectly explains why the Bush Administration officially authorized torture in blatant violation of the Geneva Conventions. So perfect that we are compelled to shrug it off with a great big, "duh."

Of course: after none of the other lies would hold any water for very long, torture was all they had left.

It was and is their only hope to find some salable justification of their criminal activities. Since no direct evidence could be found to substantiate their headstrong plunge into the huge Middle East catastrophe, they were "forced" to resort to sadistic torture of Iraqi detainees in order to force them to say something that would help make a case for the US having invaded their country and killed all those people including over 5,000 of our own troops!

Wasn't there once a time -- seems not so long ago -- that when the President and other Administration officials LIED about something an investigation was unquestionably warranted? No matter what the cost, how long it may take, or the eventually futile outcome of such an investigation and prosecution after such allegations were made was done almost by routine.

I seem to remember a few things called "Whitewater," "Filegate," "Travelgate" and "the Monica Lewinsky Affair" on which some $60 billion and up to eight years of hearings, house arrests, and impeachment proceedings were justified by the allegations against a SITTING President for things that never amounted to more than a squirt.

How the hell are we going to let the ex-officeholders get away with their devastating ruinous lies even while Dick Cheney, Karl Rove and their apologists are all over the TV circuit bragging about what they did and laughing in our stupid faces?

How now is there the slightest question about whether there should be an investigation and prosecution of those who authorized torture for purely partisan political reasons and, in the process, sold our entire nation out, ruined our reputation -- not to mention our economy -- and cost millions of human lives and trillions of dollars?

All the chatter about whether torture works, or whether it yielded any useful information (we would definitely know by now if it did) is utterly meaningless and wickedly distracting from this central element AND IT NEEDS TO STOP!

For humanity's sake doesn't this warrant more than a wussy "truth commission?" How can we not demand a very serious investigation of these very serious crimes followed by a serious prosecution of the criminals to the fullest extent of the law -- the International Laws against war crimes?

See the New York Times Op-ed piece at

Saturday, April 25, 2009

You HAVE to wonder

All the media are falling in line with the self-imposed requisite focus on the first 100 days of the Obama Administration -- as though there is some kind of legal or superstitious relevance to that nice round number. Not one of them has the creative or business impulse even to make it a focus on the first 99 days and scoop on the competition.

This can be considered an illustration, if one is needed, of the effects of that media consolidation which happened under the Bush Administration during the lead-up to the Iraq invasion where Bush's billionaire friends in corporate media were rewarded with the profitable ownership of nearly all the news outlets across the country while keeping the voices of dissent to a minimum. But all that is just a digression...

What may be more interesting, as a counter-point to the saturated examination of what has been going on in the new Administration, would be an intelligent analysis of the psychology behind the extreme and irrational opposition to it, the proponents of which have sunk to the level of lame side-show silliness (tea-bagging?). It's a malevolent silliness, of course, which is the only thing that makes it newsworthy.

We can hope it is just the dregs of a 20-year-long charade that most people who once bought into have become fed up with. With people like Dick Cheney and Karl Rove still pushing their delusional viewpoints on the gullible public rather than just shutting up and going away you have to wonder how the failed neo-conservative movement can rationally claim any credibility after their eight-year disastrous regime was - and continues to be - rejected soundly by people with half a brain.

Well, I wonder. I really do. I wonder why people en masse are compelled to glom onto prepackaged political mindsets that often cause them to take action against their own best interests? And I wonder if maybe that's just my point of view.

But, apparently, a lot of other people have been wondering about this too. Some who have the smarts and the luxury of thinking about such things for a living have been doing some structured wondering - otherwise known as research - about this very topic and have come up with some pretty interesting ideas and theories that try to make sense out of the circus going on around us.

Jonathan Haidt is one such person: an Associate Professor of Psychology at the University of Virginia. Haidt has been studying politics and morality for a number of years and written several books and articles on the subject. I recently came across an online video of a lecture he gave to the TED conference several years ago that I feel offers the most gratifying, balanced analysis of the underlying psychology of what we are currently seeing and a starting point from which we may be able to move beyond it.

Haidt has identified five foundational moral impulses relevant to how we live our lives as social beings. They are:

• Harm/care. It is wrong to hurt people; it is good to relieve suffering.

• Fairness/reciprocity. Justice and fairness are good; people have certain rights that need to be upheld in social interactions.

• In-group loyalty. People should be true to their group and be wary of threats from the outside. Allegiance, loyalty and patriotism are virtues; betrayal is bad.

• Authority/respect. People should respect social hierarchy; social order is necessary for human life.

• Purity/sanctity. The body and certain aspects of life are sacred. Cleanliness and health, as well as their derivatives of chastity and piety, are all good. Pollution, contamination and the associated character traits of lust and greed are all bad.

Haidt's research reveals that self-identified liberals feel strongly about the first two dimensions -- preventing harm and ensuring fairness -- but often feel little, or even feel negatively, about the other three. Conservatives, on the other hand, are drawn to loyalty, authority and purity, which liberals tend to think of as backward or outdated. People on the right acknowledge the importance of harm prevention and fairness but not with quite the same energy or passion as those on the left.

Whatever point you find yourself on along the political spectrum you may be fed up with bewilderment over the irrational viewpoints to which you are opposed. It would be well worth 20 minutes of your time to watch the video below. If you are moved, as I was afterward, you may consider signing on to the pledge Haidt has posted at his website to commit yourself to acting on the principles that come out of his analysis:

I was led to this discovery by Tom Jacobs who has written a revealing article about Jonathan Haidt currently posted at Miller-McCune's website:

Wednesday, April 22, 2009

What's In YOUR Pocketbook, er... Lady?

What are the chances you'll ever see a US Bank ad like this one from Argentina?

Tuesday, April 21, 2009

Torture Judge Must Be Impeached!

From The Center for Constitutional Rights:

On April 19, 2009, President Obama released four formerly secret torture authorization memos written by the Office of Legal Counsel during the Bush administration. Among other things, these memos justified waterboarding and torture, laying out with chilling detail the methods to be used in torturing CIA prisoners. One of the principal authors of these memos was Jay Bybee, the former head of the Office of Legal Counsel and today a federal judge on the 9th Circuit Court of Appeals. Bybee must be impeached, as a first step in holding those responsible for torture accountable for their actions.

Bybee's memo was written to provide legal cover and attempted justification for torture approved at the highest levels of the Bush administration. It attempts to give a legal veneer to the most brutal of illegal actions, violating U.S. and international law and the U.S. Constitution [The formerly classified Memo is available here:].

Along with justifications for facial “insult” slapping and the use of insects in a confinement box to torture prisoners, Bybee produced a lengthy pseudo-legal justification for the illegal practice of torture through waterboarding: ”Even if one were to parse the statute more finely to treat ‘suffering’ as a distinct concept, the waterboard could not be said to inflict severe suffering. The waterboard is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to suffering.”

It is utterly unacceptable for an individual who produced transparent attempts to justify illegality using the framework of a legal memorandum, and who abused his status as a government lawyer to conspire with other high level government officials to violate the law, to sit as a federal judge, hearing and deciding on issues of supreme constitutional import.

Jay Bybee’s actions in crafting the torture memo constitute High Crimes and Misdemeanors by any standard. Such an individual only brings disrepute to the federal bench and shows a flagrant disregard for the very Constitution he is sworn to uphold.

On Sunday, The New York Times called for Bybee’s impeachment in its staff editorial. The Judiciary Committee must urgently hold a hearing to determine if grounds for impeaching Bybee exist and begin the process of holding those responsible for torture accountable.

Now is the time! The torture memo writers must be held accountable. Jay Bybee is unfit to serve as a federal judge. Write to the House Judiciary Committee to call for hearings regarding impeaching Bybee now:

Sunday, April 12, 2009

Iowa, and now Vermont? What's Going On?

In the 1980s the issue of legalized same-sex marriage as an achievable political goal was not even a blip on anyone's radar. Of course it was the AIDS crisis that took all our energy up at the time: it's hard to think about advancing politically as a community when so many of you are faced with imminent death.

If that sounds at all overly dramatic it just means you are likely too young to have lived through it. That's OK. Many of us did not live through it either, including a sizable number of friends of mine and my partner: himself dead of AIDS in 1992 at the age of 38. Since the two of us were not exactly the conforming type we never fantasized about anything like marriage. We would have never gone that route even if it had been available except and until we were faced with the trauma of death and survivorship as a same-sex couple in America.

As difficult as it would have been had it played out on American soil, our situation was made all the worse for his having died suddenly (in a matter of weeks) while we were an American couple touring the country of Spain. Had our relationship been legally recognized anywhere it would have surly been less complicated to deal with the Spanish officials, the American consulate and the international issues surrounding his sudden collapse and death. Even after 17 years together I was pretty much a non-entity to all of them all and had to beg and kick and scream, humiliating myself in order to exercise my family rights which would have been assumed had we been legalized.

It was not so long ago that the focus of the LGBT community seemed to be divided between a desperate activism in the cause of basic survival and a much more common attitude of assimilationist denial and/or regression into "down-low" sexual attitudes and practices that are just barely less guilt-ridden that life in the closet. In 1992, with the AIDS crisis still raging, the big gay issue grabbing the attention of the general public and inflaming right-wing outrage was Gays in the Military. Even fewer of us really cared about than we did about the impossibly far-off issue of legalized marriage.

What a difference a decade and a half can make.

After years of frustrating defeats and political setbacks on issues that were never even on our agenda until 2003, and after the crushing disappointment of Proposition 8 just six months ago, it may suddenly seem like things are happening too fast and too much in our favor to be real. In just one remarkable week in 2009 the formerly solid, ages-old walls of prejudice and ignorance did more than crumble, They were blown to smithereens in two states on opposite ends of the American spectrum!

Wherever you stand on the issue of marriage, the decisions in Iowa and Vermont that struck down the bans on same-sex marriage may be the most important legal rulings for us as LGBT Americans since the Lawrence v. Texas Supreme Court decision that struck down all remaining US sodomy laws in 2003.

The Iowa decision is important because it is the first time that marriage rights have been upheld on the basis of an Equal Protection provision in a state's Constitution which portends a potential future argument before the US Supreme Court and could do the same for marriage restrictions as Lawrence did for anti-sodomy laws. If that happens it will be a momentous recognition of the equality of LGBT citizens that reaches far beyond the narrow right to marry. The Iowa decision was also the first time that a state Supreme Court has ruled unanimously in our favor.

The Vermont decision is important, of course, because it is the first time that a state ban on same-sex marriage was struck down by an act of the legislature rather than by a court ruling. And the bill that passed made it by a veto-proof majority.

In order to challenge either state's laws opponents of same-sex marriage will have to resort to unprecedented legal and political measures that would just betray the absurdity of their intentions. With the state of the world today - and where do you start to click off the problems we face? - how could it be worth so much to any rational group of people to pour so much time, energy and money into depriving same-sex couples of the right to marry?

Market Anthropomorphism

Even as a Wharton grad with the mandatory grounding in economic theory (macro, micro and everything in between) it has never set well with me to hear talk of "behavior" in the stock market, as in its "reactions" to events reported in the news, its tendency to "correct itself," or any meaningful significance ascribed to the direction it seems to be moving in.

While such language may be used in modeling theories to analyze trends and economic effects for instructional purposes, it would be laughable in academia, or something on the level of blasphemy, to suggest that there is some unseen sentient force shaping the economy.

(I suspect the same is true in theology classes taught at Catholic seminaries. Those in training to perpetuate the faith cannot themselves buy into the silly myths that underlie its powerful hold over people)

Obviously, as consumers we are assumed to know no better than to accept the anthropomorphism of abstract market statistics as reported daily by the corporate media without question. Even though no one seemed to see the current economic collapse coming we are now hit with screaming headlines, breaking news flashes and "in depth analysis" by economic "experts" when the Dow drops a few hundred points in one day. Excitedly they tell us how and why we are facing imminent doom according to that great and mighty oracle of capitalism - the Market.

Often, within 24 hours we find that - no, we have not yet crossed that feared line of unthinkable disaster. In fact, the market has rebound in a "self correction" when the gains reported the next day are double in number of points by which it had fallen. Hallelujah! The Gods of capitalism have been appeased!

Someone must have sacrificed a virgin.

The oracle tells us we have been spared and are free to go on investing for another day. Or, for most of us, we can be happy that our capitalist overlords will continue to invest and keep us under their thumbs for another day even as our retirement nest eggs crumble.

What is this mighty oracle - the Market - but an unseen vehicle of communication with the spirits that supposedly drive our economy? It possesses human traits but no human form. Its force is felt but never seen - like the wind. Like those ancient seers we now look down on as primitive and superstitious, the media high priests we call "economic experts" measure and interpret signs found in market trends.

Rush Limbaugh, Spiritual Leader of the Republican Party and self-appointed economic oracle, recently proclaimed that the
Dow Jones Industrial Average is down 166 points today. It's been flirting around that 166 to 180. It's 'cause Obama is coming home. Remember when Obama left, the markets skyrocketed. The markets know Obama is coming back and so the markets are plummeting.
(see Limbaugh Wire transcript from Media Matters, 4/7/09)

Joe Bageant has a slightly different take on things. He is the author of the book Dear Hunting with Jesus: Dispatches from America's Class War.

As a recent blog entry Bageant addresses what he calls "The American Hologram" in the text of a lecture he has given to several college audiences, titled: Escape from the Zombie Food Court, excerpted below...

This financial-ization of our consciousness under American-style capitalism has become all we know. That's why we fear its loss. Hence the bailouts of the thousands of "zombie banks," dead but still walking, thanks to the people's taxpayer offerings to the money god so that banks will not die.

We believe that we dare not let corporations die. Corporations feed us. They entertain us. Corporations occupy one full half of our waking hours of our lives, through employment, either directly or indirectly. They heal us when we are sick. So it's easy to see why the corporations feel like a friendly, benevolent entity in the larger American consciousness.

Corporations are, of course, deathless and faceless machines and have no soul or human emotions. That we look to them for so much makes us a corporate cult and makes corporations a fetish of our culture. Yet to us, they are like the weather -- just there. We suffer under a mass national hallucination.

Americans, regardless of income or social position, now live in a culture entirely perceived inside a self-referential media hologram of a nation and world that does not exist. Our national reality is staged and held together by media, chiefly movie and television images. We live in a "theater state."

In our theater state, we know the world through media productions, which are edited and shaped to instruct us on how to look and behave and view the outside world.

As in all staged productions and illusions, everyone we see is an actor. There are the television actors portraying what supposedly represents reality. Non-actors in Congress perform in front of the cameras as the American empire's cultural machinery weaves and spins out our cultural mythology.

In any case, the media culture's production of martyrs, good guys and bad guys, fallen heroes and concept outlaws, is not just big corporate business. It is the armature of our cultural behavior.

It tells us who to fear (Middle Eastern terrorists, Mr. Chavez in Venezuela and foreign made pharmaceuticals), who to scorn (again, the same candidates, along with Britney Spears, for her lousy child-rearing skills).

Our daily news is the modern version of Roman coliseum shows. Elections are personality combat, chariot races, not examinations of solutions being offered. None are offered.

[After the initial uproar over Abu Ghraib] Americans, like children got bored with the subject of torture long ago, so we quit seeing the victims. Plenty of new evidence has been coming out for years since Lynndie [Englund]'s famous pics from Abu Ghraib. But the short American attention span, created by our rapid-fire media, says, "Move on to the next hologram please. Whoa! Stop the remote. Nice butt shot of Sarah Palin there!"

The result is that Americans cannot achieve [an effective psychic/emotional attachment to the world]. It is "beyond ideological challenge, because it is called into existence affectively." Americans are conditioned to reject any affective attachment that does not have a happy ending. And in that, we remain mostly a nation of children. We never get to grow up.

So, we tell ourselves the Little Golden Book fairy tales -- that we are a great and compassionate people and that we are personally innocent of any of our government's horrific crimes abroad. Guiltless as individuals. And we do remain innocent, in a sense, as long as we cannot see beyond the media hologram.

But it is a terrible kind of self-inflicted innocence that can come to no good. We are a nation of latchkey kids babysat by an electronic hallucination, the national hologram.

For the entire article go to Joe Bageant's Blog


Saturday, April 4, 2009

IOWA Supreme Court Affirms Same-Sex Marriage!

In one of the most amazing and unexpected court rulings ever, the State Supreme Court of Iowa has definitively declared same-sex marriage to be completely legal under the law! Yes. IOWA!

The unanimous decision brilliantly rips through every specious argument ever made for banning same-sex couples from full and equal access to the constitutional right to marry.

The more I read through the 69 page ruling the giddier I became until - I admit it - I totally choked up over the astounding reasonableness and logic of the Court. Even if I have no personal interest in getting married, I feel strangely validated by how this document establishes a legal framework for recognition of LGBT people's full constitutional equality.

Coming on the heels of Proposition 8 where California's electorate effectively stabbed every living LGBT person in the back with a single popular vote, this strong, well-thought out decision reads like a healing tonic.

Though it needs no sugar coating, I've gone through, re-formatted and edited it down to try and make it more palatable to those who find court cases daunting to read. It's still a lot to get through and, in some spots, it may still come off as so much legalese. But I took out most of the citations and all footnotes that make court renderings cumbersome to read.

If you prefer to read the ruling in the raw, see:


No. 07–1499 Filed April 3, 2009

Chief Justice CADY: In this case, we must decide if our state statute limiting civil marriage to a union between a man and a woman violates the Iowa Constitution, as the district court ruled. On our review, we hold the Iowa marriage statute violates the equal protection clause of the Iowa Constitution. Therefore, we AFFIRM the decision of the district court.

Background Facts and Proceedings

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. Like all Iowans, they prize their liberties and live within the borders of this state with the expectation that their rights will be maintained and protected—a belief embraced by our state motto (“Our liberties we prize and our rights we will maintain” inscribed on the Great Seal of Iowa and on [the Iowa] state flag).

Despite the commonality shared with other Iowans, the twelve plaintiffs are different from most in one way. They are sexually and romantically attracted to members of their own sex. 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. Unlike opposite-sex couples in Iowa, same-sex couples are not permitted to marry in Iowa.

Despite this law, the six same-sex couples in this litigation asked the Polk County recorder to issue marriage licenses to them. The recorder, following the law, refused to issue the licenses, and the six couples have been unable to be married in this state. Except for the statutory restriction that defines marriage as a union between a man and a woman, the twelve plaintiffs met the legal requirements to marry in Iowa.

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.

The individual rights claimed by plaintiffs to be adversely affected (by the action of the legislative branch in enacting the same-sex marriage ban and the action of the government officials of the executive branch in enforcing the ban) included the fundamental right to marry, as well as rights to privacy and familial association. Additionally, plaintiffs claimed the legislative and the executive actions unconstitutionally discriminated against them on several bases, including sexual orientation.

These disadvantages and problems include the legal inability to make many life and death decisions affecting their partner, including decisions related to health care, burial arrangements, autopsy, and disposition of remains following death. Various plaintiffs told of the inability to share in their partners’ state-provided health insurance, public employee pension benefits, and many private-employer-provided benefits and protections. They also explained how several tax benefits are denied.

Adoption proceedings are also more cumbersome and expensive for unmarried partners. Other obstacles presented by the inability to enter into a civil marriage include numerous nongovernmental benefits of marriage that are so common in daily life they often go unnoticed, such as something so simple as spousal health club memberships.

Yet, perhaps the ultimate disadvantage expressed in the testimony of the plaintiffs is the inability to obtain for themselves and for their children the personal and public affirmation that accompanies marriage. The parties also explored the reasons for defining marriage in a way that denies these benefits to same-sex couples.

(Summary of Arguments for maintaining the ban against gay marriage)

The County offered five primary interests of society in support of the legislature’s exclusive definition of marriage. The first three interests are broadly related to the advancement of child rearing. Specifically, the objectives centered on promoting procreation, promoting child rearing by a mother and a father within a marriage, and promoting stability in an opposite-sex relationship to raise and nurture children.

The fourth interest raised by the County addressed the conservation of state resources, while the final reason concerned the governmental interest in promoting the concept and integrity of the traditional notion of marriage.

Much of the testimony presented by the County was in the form of opinions by various individuals that same-sex marriage would harm the institution of marriage and also harm children raised in same-sex marriages. Two college professors testified that a heterosexual marriage is, overall, the optimal forum in which to raise children. A retired pediatrician challenged the accuracy of some of the medical research that concludes there is no significant difference between children raised by same-sex couples and opposite-sex couples.

A clinical psychologist testified sexual orientation is not as defined and stable as race and gender and can change over time. He acknowledged, however, it is difficult to change a person’s sexual orientation, and efforts to do so can be harmful to the person.

(Summary of Arguments for lifting the ban against gay marriage)

The plaintiffs produced evidence to demonstrate sexual orientation and gender have no effect on children raised by same-sex couples, and same-sex couples can raise children as well as opposite-sex couples. They also submitted evidence to show that most scientific research has repudiated the commonly assumed notion that children need opposite-sex parents or biological parents to grow into well-adjusted adults.

Many leading organizations, including the American Academy of Pediatrics, the American Psychiatric Association, the American Psychological Association, the National Association of Social Workers, and the Child Welfare League of America, weighed the available research and supported the conclusion that gay and lesbian parents are as effective as heterosexual parents in raising children.

For example, the official policy of the American Psychological Association declares, “There is no scientific evidence that parenting effectiveness is related to parental sexual orientation: Lesbian and gay parents are as likely as heterosexual parents to provide supportive and healthy environments for children. ” Almost every professional group that has studied the issue indicates children are not harmed when raised by same-sex couples, but to the contrary, benefit from them. In Iowa, agencies that license foster parents have found same-sex couples to be good and acceptable parents. It is estimated that more than 5800 same-sex couples live throughout Iowa, and over one-third of these couples are raising children.

The district court concluded the statute was unconstitutional under the due process and equal protection clauses of the Iowa Constitution and granted summary judgment to the plaintiffs. It initially ordered the county recorder to begin processing marriage licenses for same-sex couples, but stayed the order during the pendency of an appeal.

Constitutional Separation of Powers

We approach the resolution of this case with a keen and respectful understanding of our Iowa Constitution and the vital roles of the three branches of government, as well as the role of the people. It is important for these roles to be identified and expressed from time to time when individuals seek recognition of rights, if only to serve as a reminder of the process of governing that has served us so well as a state for over 150 years.

The Iowa Constitution is the cornerstone of governing in Iowa. Like the United States Constitution, the Iowa Constitution creates a remarkable blueprint for government. It establishes three separate, but equal, branches of government and delineates the limited roles and powers of each branch.

Among other basic principles essential to our form of government, the constitution defines certain individual rights upon which the government may not infringe.

This case, as with most other civil rights actions before it, implicates these broad constitutional principles of governing. The legislature, in carrying out its constitutional role to make public policy decisions, enacted a law that effectively excludes gay and lesbian people from the institution of civil marriage. The executive branch of government, in carrying out its role to execute the law, enforced this statute through a county official who refused to issue marriage licenses to six same-sex couples. These Iowans, believing that the law is inconsistent with certain constitutional mandates, exercised their constitutional right to petition the courts for redress of their grievance. This court, consistent with its role to interpret the law and resolve disputes, now has the responsibility to determine if the law enacted by the legislative branch and enforced by the executive branch violates the Iowa Constitution.

A statute inconsistent with the Iowa Constitution must be declared void, even though it may be supported by strong and deep-seated traditional beliefs and popular opinion. Iowa Const. art. XII, § 1 (providing any law inconsistent with the constitution is void). As Chief Justice John Marshall wrote over two centuries ago, “It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it . . . .” [Marbury v. Madison,1803].

It is also well established that courts must, under all circumstances, protect the supremacy of the constitution as a means of protecting our republican form of government and our freedoms. As was observed by Justice Robert H. Jackson decades ago in reference to the United States Constitution, the very purpose of limiting the power of the elected branches of government by constitutional provisions like the Equal Protection Clause is “to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” [W. Va. State Bd. Of Educ. v. Barnette, 1943].

The same principle applies to the provisions of the Iowa Constitution that limit government power. The idea that courts, free from the political influences in the other two branches of government, are better suited to protect individual rights was recognized at the time our Iowa Constitution was formed. [Koehler v. Hill, Iowa 1883] “Judges ought not to be partisans, and be influenced by partisan control. Their duty is to interpret and apply the law, to the end that the liberty, and the rights and property, of the people may be secured.”

In fulfilling this mandate under the Iowa Constitution, we look to the past and to precedent. We look backwards, not because citizens’ rights are constrained to those previously recognized, but because historical constitutional principles provide the framework to define our future as we confront the challenges of today.

Our responsibility, however, 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 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.

Equal Protection

A. Background Principles. 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. For sure, our nation has struggled to achieve a broad national consensus on equal protection of the laws when it has been forced to apply that principle to some of the institutions, traditions, and norms woven into the fabric of our society. This observation is important today because it reveals equal protection can only be defined by the standards of each generation

The process of defining equal protection, as shown by our history as captured and told in court decisions, begins by classifying people into groups. A classification persists until a new understanding of equal protection is achieved.

The point in time when the standard of equal protection finally takes a new form is a product of the conviction of one, or many, individuals that a particular grouping results in inequality and the ability of the judicial system to perform its constitutional role free from the influences that tend to make society’s understanding of equal protection resistant to change. As Justice Oliver Wendell Holmes poignantly said, “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”

This concept is evident in our past cases. In the first reported case of the Supreme Court of the Territory of Iowa, In re Ralph, 1 Morris 1 (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, which upheld the rights of a slave owner to treat a person as property. Similarly, in Clark v. Board of Directors, we struck blows to the concept of segregation long before the United States Supreme Court’s decision in Brown v. Board of Education.

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?

B. Legal Tests to Gauge Equal Protection. The foundational principle of equal protection is expressed in article I, section 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.”

Like the Federal Equal Protection Clause found in the Fourteenth Amendment to the United States Constitution, Iowa’s constitutional promise of equal protection “ ‘is essentially a direction that all persons similarly situated should be treated alike.’

Even in the zealous protection of the constitution’s mandate of equal protection, courts must give respect to the legislative process and presume Plaintiffs’ challenge to Iowa Code section 595.2 is based on the equal protection guarantee in the Iowa Constitution and does not implicate federal constitutional protections. Generally, we view the federal and state equal protection clauses as “identical in scope, import, and purpose.” At the same time, we have jealously guarded our right to “employ a different analytical framework” under the state equal protection clause as well as to independently apply the federally formulated principles.

Here again, we find federal precedent instructive in interpreting the Iowa Constitution, but we refuse to follow it blindly. The United States Supreme Court has not resolved the broad question of whether an absolute ban of marriages between persons of the same sex violates the Federal Equal Protection Clause. [See Lawrence, 539 U.S (noting that case does not decide “whether the government must give formal recognition to any relationship that homosexual persons seek to enter”). Nor has the Court resolved many of the narrower legal questions presented by this lawsuit.

Nonetheless, the federal framework traditionally employed for resolution of equal protection cases provides a useful starting point for evaluation of Iowa’s constitutional equal protection provision.

Its enactments are constitutional. We understand that Iowa’s tripartite system of government requires the legislature to make difficult policy choices, including distributing benefits and burdens amongst the citizens of Iowa. In this process, some classifications and barriers are inevitable. As a result, courts pay deference to legislative decisions when called upon to determine whether the Iowa Constitution’s mandate of equality has been violated by legislative action. More specifically, when evaluating challenges based on the equal protection clause, our deference to legislative policymaking is primarily manifested in the level of scrutiny we apply to review legislative action.

In most cases, we apply a very deferential standard known as the “rational basis test.” Under the rational basis test, “[t]he plaintiff has the heavy burden of showing the statute unconstitutional and must negate every reasonable basis upon which the classification may be sustained.” In deference to the legislature, a statute will satisfy the requirements of the equal protection clause “so long as there is a plausible policy reason for the classification, the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decision maker, and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational.”

The rational basis test defers to the legislature’s prerogative to make policy decisions by requiring only a plausible policy justification, mere rationality of the facts underlying the decision and, again, a merely rational relationship between the classification and the policy justification. Nonetheless, the deference built into the rational basis test is not dispositive because this court engages in a meaningful review of all legislation challenged on equal protection grounds by applying the rational basis test to the facts of each case.

The constitutional guarantee of equal protection, however, demands certain types of statutory classifications must be subjected to closer scrutiny by courts. Thus, courts apply a heightened level of scrutiny under equal protection analysis when reasons exist to suspect “prejudice against discrete and insular minorities . . . which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.”

Under this approach, classifications based on race, alienage, or national origin and those affecting fundamental rights are evaluated according to a standard known as “strict scrutiny.”

Classifications subject to strict scrutiny are presumptively invalid and must be narrowly tailored to serve a compelling governmental interest.

A middle tier of analysis exists between rational basis and strict scrutiny. This intermediate tier has been applied to statutes classifying on the basis of gender or illegitimacy and requires the party seeking to uphold the statute to demonstrate the challenged classification is substantially related to the achievement of an important governmental objective.

It is known as “intermediate scrutiny” or “heightened scrutiny,” and groups entitled to this tier of review are often called “quasi-suspect” groups. To survive intermediate scrutiny, the law must not only further an important governmental interest and be substantially related to that interest, but the justification for the classification must be genuine and must not depend on broad generalizations.

C. Determination of Constitutional Facts. The parties expended considerable effort developing a summary judgment record to assist the district court in deciding the legal issues presented in this case, including which level of scrutiny to apply. Before proceeding to determine these legal issues, we consider the role of the evidence offered by the parties to support their legal arguments. The district court excluded some of the offered testimony, which the County has raised as an issue on appeal.

Our law recognizes a distinction between “adjudicative” and “legislative” facts. Most often, judicial decision-making is predicated solely on a finding of facts relating to the parties and their particular circumstances. These facts are referred to as “adjudicative” facts and the resolution of a dispute over these facts is done within the framework of a set of rules to determine the admissibility of evidence tending to prove such facts. At times, however, judicial decision-making involves crafting rules of law based on social, economic, political, or scientific facts [see McCormick on Evidence].

These facts have been denominated as “legislative” facts and become relevant to judicial decision-making when courts are required to decide the constitutionality of a statute, among other occasions. As a result, judicial decision-making in the context of constitutional issues can involve the “process of adapting law to a volatile social-political environment.”

Legislative facts are relevant in deciding these constitutional issues because courts must normally analyze “whether there exist circumstances which constitutionally either legitimate the exercise of legislative power or substantiate the rationality of the legislative product.” In fact, the common role of legislative facts in constitutional cases has led to an alternative designation of legislative facts called “constitutional facts” to better describe those facts “which assist a court in forming a judgment on a question of constitutional law.”

Unlike adjudicative facts, legislative or constitutional facts “may be presented either formally or informally.” There is no formalized set of rules governing a court’s ability to consider legislative or constitutional facts.

Thus, constitutional facts are introduced into judicial decisions through independent research by judges and written briefs of the parties, as well as testimony of witnesses.

Importantly, constitutional facts are not subject to the rules of evidence when presented by a party in the form of witness testimony. Conceptually, testimony relating to constitutional facts is only presented as authority for the legal decision the court is required to make, and it would be inconsistent to apply formal rules of evidence to facts in the form of testimony that a court can independently obtain and consider in deciding the case.

Nonetheless, courts consider the “actual truth-content” of constitutional facts. Such facts are generally disputable, and courts must rely on the most compelling data in order to give needed intellectual legitimacy to the law or rule crafted by the court. Consequently, we review all of the material tendered by the parties in this case to assist us in our review of the constitutionality of the civil marriage statute.

D. Similarly Situated People. The County seeks to undercut the plaintiffs’ equal protection claim by asserting the plaintiffs are not similarly situated to heterosexuals. We consider this threshold argument before proceeding to the application of our equal protection test.

We begin by recognizing the constitutional pledge of equal protection does not prohibit laws that impose classifications. Many statutes impose classifications by granting special benefits or declaring special burdens, and the equal protection clause does not require all laws to apply uniformly to all people.

Instead, equal protection demands that laws treat alike all people who are “ ‘similarly situated with respect to the legitimate purposes of the law.’ This requirement of equal protection—that the law must treat all similarly situated people the same—has generated a narrow threshold test. Under this threshold test, if plaintiffs cannot show as a preliminary matter that they are similarly situated, courts do not further consider whether their different treatment under a statute is permitted under the equal protection clause.

Not only have we utilized this test in the past, but courts from other jurisdictions have confronted it in cases involving equal protection challenges to statutes that restrict marriage to opposite-sex couples.

The County references this threshold test in this case and asserts the plaintiffs are not similarly situated to opposite-sex couples so as to necessitate further equal protection analysis because the plaintiffs cannot “procreate naturally.” In other words, the County argues the statute does not treat similarly situated persons differently, but merely treats dissimilar persons differently.

In considering whether two classes are similarly situated, a court cannot simply look at the trait used by the legislature to define a classification under a statute and conclude a person without that trait is not similarly situated to persons with the trait.

The equal protection clause does not merely ensure the challenged statute applies equally to all people in the legislative classification. “ ‘[S]imilarly situated’ cannot mean simply ‘similar in the possession of the classifying trait.’ All members of any class are similarly situated in this respect and consequently, any classification whatsoever would be reasonable by this test.”

In the same way, the similarly situated requirement cannot possibly be interpreted to require plaintiffs to be identical in every way to people treated more favorably by the law. No two people or groups of people are the same in every way, and nearly every equal protection claim could be run aground onto the shoals of a threshold analysis if the two groups needed to be a mirror image of one another. Such a threshold analysis would hollow out the constitution’s promise of equal protection.

Thus, equal protection before the law demands more than the equal application of the classifications made by the law. The law itself must be equal.

In other words, to truly ensure equality before the law, the equal protection guarantee requires that laws treat all those who are similarly situated with respect to the purposes of the law alike. This requirement makes it “impossible to pass judgment on the reasonableness of a [legislative] classification without taking into consideration, or identifying, the purpose of the law.” [Tussman & tenBroek]

The purposes of the law must be referenced in order to meaningfully evaluate whether the law equally protects all people similarly situated with respect to those purposes. For these reasons, the trait asserted by the County is insufficient to support its threshold argument.

Nevertheless, we have said our marriage laws “are rooted in the necessity of providing an institutional basis for defining the fundamental relational rights and responsibilities of persons in organized society.”

Therefore, with respect to the subject and purposes of Iowa’s marriage laws, we find that the plaintiffs are similarly situated compared to heterosexual persons.

Plaintiffs are in committed and loving relationships, many raising families, just like heterosexual couples. Moreover, official recognition of their status provides an institutional basis for defining their fundamental relational rights and responsibilities, just as it does for heterosexual couples. Society benefits, for example, from providing same sex couples a stable framework within which to raise their children and the power to make health care and end-of-life decisions for loved ones, just as it does when that framework is provided for opposite-sex couples.

In short, for purposes of Iowa’s marriage laws, which are designed to bring a sense of order to the legal relationships of committed couples and their families in myriad ways, plaintiffs are similarly situated in every important respect, but for their sexual orientation. As indicated above, this distinction cannot defeat the application of equal protection analysis through the application of the similarly situated concept because, under this circular approach, all distinctions would evade equal protection review.

Therefore, with respect to the government’s purpose of “providing an institutional basis for defining the fundamental relational rights and responsibilities of persons,” same–sex couples are similarly situated to opposite–sex couples.

E. Classification Undertaken in Iowa Code Section 595.2. Plaintiffs believe Iowa Code section 595.2 classifies on the bases of gender and sexual orientation. The County argues the same-sex marriage ban does not discriminate on either basis. The district court held section 595.2 classifies according to gender.

As we will explain, we believe the ban on civil marriages between two people of the same sex classifies on the basis of sexual orientation. While we have applied the threshold analysis in previous cases, we have, at times, directly or indirectly infused that analysis with principles traditionally applied in the complete equal protection analysis.

This approach is almost inevitable for the test to have any real value as an analytical tool to resolve equal protection claims. Consequently, we question the usefulness of the threshold test and express caution in the future use of the threshold analysis.

Because the plaintiffs here satisfy the threshold test we have followed in the past, the outcome in this case would not be affected by abandoning that test now. Therefore, we leave to future parties the task of arguing the applicability of the threshold similarly situated analysis in future cases. The County initially points out that section 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, section 595.2 only incidentally impacts disparately upon gay and lesbian people.

The County’s position reveals the importance of accurately and precisely defining the classification in analyzing all equal protection challenges. The manner in which a classification is defined impacts the utility of an equal protection analysis as a means of revealing discrimination. Therefore, it is critical that a court reviewing the statute identify the true nature of the classification.

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.

Under such a law, gay or lesbian individuals cannot simultaneously fulfill their deeply felt need for a committed personal relationship, as influenced by their sexual orientation, and gain the civil status and attendant benefits granted by the statute. 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

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.

By purposefully placing civil marriage outside the realistic reach of gay and lesbian individuals, the ban on same-sex civil marriages differentiates implicitly on the basis of sexual orientation.

Thus, we proceed to analyze the constitutionality of the statute based on sexual orientation discrimination.

F. Framework for Determining Appropriate Level of Judicial Scrutiny. Our determination that the marriage statute employs a sexual orientation-based classification does not, of course, control the outcome of our equal protection inquiry. Most statutes, one way or the other, create classifications. [Clements v. Fashing, 1982) “Classification is the essence of all legislation, and only those classifications which are invidious, arbitrary, or irrational offend the Equal Protection Clause of the Constitution.”]

To determine if this particular classification violates constitutional principles of equal protection, we must next ask what level of scrutiny applies to classifications of this type.

The County argues the more deferential rational basis test should apply, while plaintiffs argue closer scrutiny is appropriate. Although neither we nor the United States Supreme Court has decided which level of scrutiny applies to legislative classifications based on sexual orientation, numerous Supreme Court equal protection cases provide a general framework to guide our analysis under the Iowa Constitution.

The Supreme Court has expressed a number of general principles to assist in identifying the appropriate level of scrutiny. Classifications based on factors like race, alienage, national origin, sex, or illegitimacy are so seldom relevant to achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy.

Rather than bearing some relationship to the burdened class’s ability to contribute to society, such classifications often reflect irrelevant stereotypes. “For these reasons and because such discrimination is unlikely to be soon rectified by legislative means,” laws based on these types of classifications must withstand more intense judicial scrutiny than other types of classifications.

Instead of adopting a rigid formula to determine whether certain legislative classifications warrant more demanding constitutional analysis, the Supreme Court has looked to four factors: (1) the history of invidious discrimination against the class burdened by the legislation; (2) whether the characteristics that distinguish the class indicate a typical class member’s ability to contribute to society; (3) whether the distinguishing characteristic is “immutable” or beyond the class member’s control; and (4) the political power of the subject class.

Both parties recognize the relevance of these factors. They disagree, however, over how the factors should be applied to decide whether sexual orientation is a suspect or quasi-suspect class.

The County essentially views the factors as elements, asserting each must be fulfilled before we may abandon our deferential level of scrutiny. To this end, the County argues the immutability and political powerlessness “elements” are not satisfied in this case.

In its effort to treat the factors as essential elements, the County overlooks the flexible manner in which the Supreme Court has applied the four factors in the past. For purposes of state constitutional analysis, we likewise refuse to view all the factors as elements or as individually demanding a certain weight in every case.

Instead, we analyze each of the four factors and assess how each bears on the question of whether the Iowa Constitution requires a more searching scrutiny be applied to the specific classification at issue. We note the first two factors—history of intentional discrimination and relationship of classifying characteristic to a person’s ability to contribute—have always been present when heightened scrutiny has been applied. They have been critical to the analysis and could be considered as prerequisites to concluding a group is a suspect or quasisuspect class.

However, we consider the last two factors—immutability of the characteristic and political powerlessness of the group—to supplement the analysis as a means to discern whether a need for heightened scrutiny exists.

G. Determination of Appropriate Level of Scrutiny. Guided by the established framework, we next consider each of the four traditional factors and assess how each bears on the question of whether the constitution demands a more searching scrutiny be applied to the sexual-orientation based classification in Iowa’s marriage statute.

1. History of discrimination against gay and lesbian people. The first consideration is whether gay and lesbian people have suffered a history of purposeful unequal treatment because of their sexual orientation.

The County does not, and could not in good faith, dispute the historical reality that gay and lesbian people as a group have long been the victim of purposeful and invidious discrimination because of their sexual orientation.

The long and painful history of discrimination against gay and lesbian persons is epitomized by the criminalization of homosexual conduct in many parts of this country until very recently (see Lawrence v Texas, invalidating criminalization of homosexual sodomy in 2003).

Additionally, only a few years ago persons identified as homosexual were dismissed from military service regardless of past dedication and demonstrated valor. Public employees identified as gay or lesbian have been thought to pose security risks due to a perceived risk of extortion resulting from a threat of public exposure. School-yard bullies have psychologically ground children with apparently gay or lesbian sexual orientation in the cruel mortar and pestle of school-yard prejudice.

At the same time, lesbian and gay people continue to be frequent victims of hate crimes (see Criminal Justice Information Servs. Div., FBI, Hate Crime Statistics 2007, according to FBI-collected data, the only hate crimes occurring more frequently than sexual-orientation-motivated hate crimes are crimes based on race or religious bias).

The Iowa General Assembly has recognized the need to address sexual-orientation-based discrimination by including sexual orientation as a characteristic protected in the Iowa Civil Rights Act, by defining hate crimes to include certain offenses committed because of the victim’s sexual orientation, and by prohibiting “harassing or bullying” behavior in schools based on sexual orientation (see Iowa Code §§ 216.2–.18A: Iowa Civil Rights Act/sexual-orientation-based discrimination/school harassment and bullying).

These statutory enactments demonstrate a legislative recognition of the need to remedy historical sexual-orientation based discrimination.

In sum, this history of discrimination suggests any legislative burdens placed on lesbian and gay people as a class “are more likely than others to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective.” [Plyler]. This observation favors an elevated scrutiny to uncover any such prejudice.

2. Sexual orientation and the ability to contribute to society. A second relevant consideration is whether the characteristic at issue—sexual orientation—is related to the person’s ability to contribute to society.

Heightened scrutiny is applied when the classification bears no relationship to a person’s ability to contribute to society. The existence of this factor indicates the classification is likely based on irrelevant stereotypes and prejudice. [Kerrigan]

A classification unrelated to a person’s ability to perform or contribute to society typically reflects “prejudice and antipathy—a view that those in the burdened class are not as worthy or deserving as others” or “reflect[s] outmoded notions of the relative capabilities of persons with the characteristic.” [Cleburne Living Ctr.]

Not surprisingly, none of the same-sex marriage decisions from other state courts around the nation have found a person’s sexual orientation to be indicative of the person’s general ability to contribute to society.

The County references plaintiffs’ inability to procreate “naturally,” presumably pointing out each couple’s inability to procreate without assistance. Plaintiffs’ inability to contribute children to society by procreation through sexual intercourse with each other does not dictate the outcome of our consideration under this factor.

The inquiry into gay and lesbian people’s ability to contribute to society is a general one, designed to signal whether such classifications routinely risk elevating stereotype over ability. A person’s ability to procreate is merely one of many ways in which the person can contribute to society.

The inability of gay and lesbian partners to contribute by procreation through sexual intercourse with each other does not indicate whether legislative classifications based on sexual preference—which can conceivably occur in any legislative subject matter area—will generally be based on “stereotyped characteristics not truly indicative of their abilities.” [Murgia]

3. Immutability of sexual orientation. The parties, consistent with the same-sex-marriage scholarship, opinions, and jurisprudence, contest whether sexual orientation is immutable or unresponsive to attempted change.

The County seizes on this debate to argue the summary judgment granted by the district court in this case was improper because plaintiffs could not prove, as a matter of fact, that sexuality is immutable. This argument, however, essentially limits the constitutional relevance of mutability to those instances in which the trait defining the burdened class is absolutely impervious to change.

To evaluate this argument, we must first consider the rationale for using immutability as a factor.

A human trait that defines a group is “immutable” when the trait exists “solely by the accident of birth,” [Frontiero v. Richardson] or when the person with the trait has no ability to change it. [Bakke] Immutability is a factor in determining the appropriate level of scrutiny because the inability of a person to change a characteristic that is used to justify different treatment makes the discrimination violative of the rather “ ‘basic concept of our system that legal burdens should bear some relationship to individual responsibility.’ ”

“Legislation imposing special disabilities upon groups disfavored by virtue of circumstances beyond their control suggests the kind of ‘class or caste’ treatment that the Fourteenth Amendment was designed to abolish.”

Put another way, when a characteristic is immutable, different treatment based on this characteristic seems “all the more invidious and unfair.” [Frontiero]

Additionally, immutability can relate to the scope and permanency of the barrier imposed on the group. Temporary barriers tend to be less burdensome on a group and more likely to actually advance a legitimate governmental interest. Consequently, such barriers normally do not warrant heightened scrutiny.

The permanency of the barrier also depends on the ability of the individual to change the characteristic responsible for the discrimination. This aspect of immutability may separate truly victimized individuals from those who have invited discrimination by changing themselves so as to be identified with the group.

As implied by Justice Ferren, in dissent, in Dean: The degree to which an individual controls, or cannot avoid, the acquisition of the defining trait, and the relative ease or difficulty with which a trait can be changed, are relevant to whether a classification is “suspect” or “quasi-suspect” because this inquiry is one way of asking whether someone, rather than being victimized, has voluntarily joined a persecuted group and thereby invited the discrimination.

Importantly, this background reveals courts need not definitively resolve the nature-versus-nurture debate currently raging over the origin of sexual orientation in order to decide plaintiffs’ equal protection claims.

The constitutional relevance of the immutability factor is not reserved to those instances in which the trait defining the burdened class is absolutely impossible to change. Compare [Sherman] (suggesting heightened scrutiny is applicable to gender classifications), with Iowa Code § 144.23 (providing legal procedure to obtain new birth certificate indicating change in gender).

That is, we agree with those courts that have held the immutability “prong of the suspectness inquiry surely is satisfied when . . .the identifying trait is ‘so central to a person’s identity that it would be abhorrent for government to penalize a person for refusing to change [it].’ ”

Also see [Kerrigan] (quoting Watkins v. U.S. Army, 875 F.2d 699, 726 (9th Cir. 1989) “Because a person’s sexual orientation is so integral an aspect of one’s identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment.”

In this case, the County acknowledges sexual orientation is highly resistant to change. Additionally, “sexual orientation ‘forms a significant part of a person’s identity.’ ”[Kerrigan], . Sexual orientation influences the formation of personal relationships between all people—heterosexual, gay, or lesbian—to fulfill each person’s fundamental needs for love and attachment.

Accordingly, because sexual orientation is central to personal identity and “ ‘may be altered [if at all] only at the expense of significant damage to the individual’s sense of self,’ ” classifications based on sexual orientation “are no less entitled to consideration as a suspect or quasi-suspect class than any other group that has been deemed to exhibit an immutable characteristic [ Jantz v. Muci] .

Sexual orientation is not the type of human trait that allows courts to relax their standard of review because the barrier is temporary or susceptible to self-help.

4. Political powerlessness of lesbian and gay people. As observed, the political power of the burdened class has been referenced repeatedly in Supreme Court cases determining the level of scrutiny to be applied to a given piece of legislation. Unfortunately, the Court has never defined what it means to be politically powerless for purposes of this analysis, nor has it quantified a maximum amount of political power a group may enjoy while still receiving the protection from unfair discrimination accompanying heightened scrutiny.

The County points to the numerous legal protections gay and lesbian people have secured against discrimination, and the County argues those protections demonstrate gay and lesbian people are not a politically powerless class.

The County’s argument implies gay and lesbian people must be characterized by a complete, or nearly complete, lack of political power before courts should subject sexual-orientation-based legislative burdens to a heightened scrutiny.

Notwithstanding the lack of a mathematical equation to guide the analysis of this factor, a number of helpful general principles related to the political power of suspect classes can be culled from the Supreme Court’s cases.

First, these cases show absolute political powerlessness is not necessary to subject legislative burdens on a certain class to heightened scrutiny. For example, females enjoyed at least some measure of political power when the Supreme Court first heightened its scrutiny of gender classifications.

Second, Supreme Court jurisprudence establishes that a group’s current political powerlessness is not a prerequisite to enhanced judicial protection. “[I]f a group’s current political powerlessness [was] a prerequisite to a characteristic’s being considered a constitutionally suspect basis for differential treatment, it would be impossible to justify the numerous decisions that continue to treat sex, race, and religion as suspect classifications.”

Race continues to be a suspect classification, [Grutter v. Bollinger], even though racial minorities enjoy growing political power. Likewise, gender classifications receive various forms of heightened scrutiny, even though women continue to gain political power.

(By one measure—occupation of public office—the political power of racial minorities is unbounded in this country today. This fact was on display January 20, 2009,when Barack H. Obama, the African-American son of a native Kenyan, was inaugurated as the forty-fourth President of the United States of America).

While a more in-depth discussion of the history of the political-power factor is possible, we are satisfied, for the purpose of analyzing the Iowa Constitution, the political powerlessness factor of the level-of-scrutiny inquiry does not require a showing of absolute political powerlessness.

Rather, the touchstone of the analysis should be “whether the group lacks sufficient political strength to bring a prompt end to the prejudice and discrimination through traditional political means.”

It is also important to observe that the political power of gays and lesbians, while responsible for greater acceptance and decreased discrimination, has done little to remove barriers to civil marriage.

Although a small number of state legislatures have approved civil unions for gay and lesbian people without judicial intervention, no legislature has secured the right to civil marriage for gay and lesbian people without court order.

The myriad statutes and regulatory protections against discrimination based on sexual orientation in such areas as employment, housing, public accommodations, and education have not only been absent in the area of marriage, but legislative bodies have taken affirmative steps to shore up the concept of traditional marriage by specifically excluding gays and lesbians.

Like Iowa, over forty other states have passed statutes or constitutional amendments to ban same-sex marriages.

Thus, although equal rights for gays and lesbians have been increasingly recognized in the political arena, the right to civil marriage is a notable exception to this trend.

Consequently, the specific right sought in this case has largely lacked any extensive political support and has actually experienced an affirmative backlash.

We are convinced gay and lesbian people are not so politically powerful as to overcome the unfair and severe prejudice that history suggests produces discrimination based on sexual orientation.

Gays and lesbians certainly possess no more political power than women enjoyed four decades ago when the Supreme Court began subjecting gender-based legislation to closer scrutiny.

Additionally, gay and lesbian people are, as a class, currently no more powerful than women or members of some racial minorities.

These facts demonstrate, at the least, the political-power factor does not weigh against heightened judicial scrutiny of sexual-orientation based legislation.

5. Classifications based on sexual orientation demand closer scrutiny. In summarizing the rationale supporting heightened scrutiny of legislation classifying on the basis of sexual orientation, it would be difficult to improve upon the words of the Supreme Court of Connecticut: “Gay persons have been subjected to and stigmatized by a long history of purposeful and invidious discrimination that continues to manifest itself in society.”

The characteristic that defines the members of this group—attraction to persons of the same sex—bears no logical relationship to their ability to perform in society, either in familial relations or otherwise as productive citizens.

Because sexual orientation is such an essential component of personhood, even if there is some possibility that a person’s sexual preference can be altered, it would be wholly unacceptable for the state to require anyone to do so. Gay persons also represent a distinct minority of the population.

It is true, of course, that gay persons recently have made significant advances in obtaining equal treatment under the law. Nonetheless, we conclude that, as a minority group that continues to suffer the enduring effects of centuries of legally sanctioned discrimination, laws singling them out for disparate treatment are subject to heightened judicial scrutiny to ensure that those laws are not the product of such historical prejudice and stereotyping.

We agree with the observations of the Connecticut Supreme Court.

The factors established to guide our determination of the level of scrutiny to utilize in our examination of the equal protection claim in this case all point to an elevated level of scrutiny. Accordingly, we hold that legislative classifications based on sexual orientation must be examined under a heightened level of scrutiny under the Iowa Constitution.

H. Application of Heightened Scrutiny. Plaintiffs argue sexual orientation-based statutes should be subject to the most searching scrutiny. The County asserts Iowa’s marriage statute, section 595.2, may be reviewed, at most, according to an intermediate level of scrutiny.

Because we conclude Iowa’s same-sex marriage statute cannot withstand intermediate scrutiny, we need not decide whether classifications based on sexual orientation are subject to a higher level of scrutiny. Thus, we turn to a discussion of the intermediate scrutiny standard.

1. Intermediate scrutiny standard. “To withstand intermediate scrutiny, a statutory classification must be substantially related to an important governmental objective.”

In applying an intermediate standard to review gender-based classifications, the Supreme Court has stated: “Focusing on the differential treatment or denial of opportunity for which relief is sought, the reviewing court must determine whether the proffered justification is ‘exceedingly persuasive.’ ”

To this end, courts evaluate whether the proffered governmental objectives are important and whether the statutory classification is “ ‘substantially related to the achievement of those objectives.’ ”

2. Statutory classification: exclusion of gay and lesbian people from civil marriage. To identify the statutory classification, we focus on the “differential treatment or denial of opportunity for which relief is sought.

Plaintiffs bring this lawsuit complaining of their exclusion from the institution of civil marriage. In response, the County offers support for the legislature’s decision to statutorily establish heterosexual civil marriage.

Because the relevant focal point is the opportunity sought by the plaintiffs, the issue presented by this lawsuit is whether the state has “exceedingly persuasive” reasons for denying civil marriage to same-sex couples, not whether state sanctioned, heterosexual marriage is constitutional.

Thus, the question we must answer is whether excluding gay and lesbian people from civil marriage is substantially related to any important governmental objective.

3. Governmental objectives. 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.

The first step in scrutinizing a statutory classification can be to determine whether the objectives purportedly advanced by the classification are important.

“The burden of justification is demanding and it rests entirely on the State.”

Where we find, or can assume, the proffered governmental interests are sufficiently weighty to be called “important,” the critical inquiry is whether these governmental objectives can fairly be said to be advanced by the legislative classification.

First we must examine the legitimacy of the end to be achieved; we then scrutinize the means used to achieve that end.

In this analysis, we drill down to analyze the “link between classification and objective.”

a. Maintaining traditional marriage.

First, the County argues the same-sex marriage ban promotes the “integrity of traditional marriage” by “maintaining the historical and traditional marriage norm ([as] one between a man and a woman).”

This argument is straightforward and has superficial appeal. A specific tradition sought to be maintained cannot be an important governmental objective for equal protection purposes, however, when the tradition is nothing more than the historical classification currently expressed in the statute being challenged.

When a certain tradition is used as both the governmental objective and the classification to further that objective, the equal protection analysis is transformed into the circular question of whether the classification accomplishes the governmental objective, which objective is to maintain the classification.

In other words, the equal protection clause is converted into a “ ‘barren form of words’ ” when “ ‘discrimination . . . is made an end in itself.’ ” [Tussman & tenBroek]

This precise situation is presented by the County’s claim that the statute in this case exists to preserve the traditional understanding of marriage.

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]

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.’ ”

“[W]hen tradition is offered to justify preserving a statutory scheme that has been challenged on equal protection grounds, we must determine whether the reasons underlying that tradition are sufficient to satisfy constitutional requirements.” [Kerrigan]

Thus, we must analyze the legislature’s objective in maintaining the traditional classification being challenged. The reasons underlying traditional marriage may include the other objectives asserted by the County, objectives we will separately address in this decision.

However, some underlying reason other than the preservation of tradition must be identified.

Because the County offers no particular governmental reason underlying the tradition of limiting civil marriage to heterosexual couples, we press forward to consider other plausible reasons for the legislative classification.

b. Promotion of optimal environment to raise children. Another governmental objective proffered by the County is the promotion of “child rearing by a father and a mother in a marital relationship which social scientists say with confidence is the optimal milieu for child rearing.”

This objective implicates the broader governmental interest to promote the best interests of children. The “best interests of children” is, undeniably, an important governmental objective. Yet, we first examine the underlying premise proffered by the County that the optimal environment for children is to be raised within a marriage of both a mother and a father.

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.

On the other hand, we acknowledge the existence of reasoned opinions that dual-gender parenting is the optimal environment for children. These opinions, while thoughtful and sincere, were largely unsupported by reliable scientific studies.

Even assuming there may be a rational basis at this time to believe the legislative classification advances a legitimate government interest, this assumed fact would not be sufficient to survive the equal protection analysis applicable in this case.

In order to ensure this classification based on sexual orientation is not borne of prejudice and stereotype, intermediate scrutiny demands a closer relationship between the legislative classification and the purpose of the classification than mere rationality. Under intermediate scrutiny, the relationship between the government’s goal and the classification employed to further that goal must be “substantial.”

In order to evaluate that relationship, it is helpful to consider whether the legislation is over-inclusive or under-inclusive.

A statute is under-inclusive when the classification made in the statute “does not include all who are similarly situated with respect to the purpose of the law.” [Tussman & tenBroek]

An under-inclusive statute means all people included in the statutory classification have the trait that is relevant to the aim of the statute, but other people with the trait are not included in the classification.

A statute is over-inclusive when the classification made in the statute includes more persons than those who are similarly situated with respect to the purpose of the law.

An over-inclusive statute “imposes a burden upon a wider range of individuals than are included in the class of those” with the trait relevant to the aim of the law.

As the degree to which a statutory classification is shown to be over-inclusive or underinclusive increases, so does the difficulty in demonstrating the classification substantially furthers the legislative goal.

We begin with the County’s argument that the goal of the same-sex marriage ban is to ensure children will be raised only in the optimal milieu. In pursuit of this objective, the statutory exclusion of gay and lesbian people is both under-inclusive and over-inclusive.

The civil marriage statute is under-inclusive because it does not exclude from marriage other groups of parents—such as child abusers, sexual predators, parents neglecting to provide child support, and violent felons—that are undeniably less than optimal parents.

Such under-inclusion tends to demonstrate that the sexual-orientation-based classification is grounded in prejudice or “overbroad generalizations about the different talents, capacities, or preferences” of gay and lesbian people, rather than having a substantial relationship to some important objective.

If the marriage statute was truly focused on optimal parenting, many classifications of people would be excluded, not merely gay and lesbian people.

While a statute does not automatically violate equal protection merely by being under-inclusive, the degree of under-inclusion nonetheless indicates the substantiality of the relationship between the legislative means and end.

As applied to this case, it could be argued the same-sex marriage ban is just one legislative step toward ensuring the optimal environment for raising children.

Under this argument, the governmental objective is slightly more modest. It seeks to reduce the number of same-sex parent households, nudging our state a step closer to providing the asserted optimal milieu for children.

Even evaluated in light of this narrower objective, however, the ban on same-sex marriage is flawed.

The ban on same-sex marriage is substantially over-inclusive because not all same-sex couples choose to raise children. Yet, the marriage statute denies civil marriage to all gay and lesbian people in order to discourage the limited number of same-sex couples who desire to raise children.

In doing so, the legislature includes a consequential number of “individuals within the statute’s purview who are not afflicted with the evil the statute seeks to remedy.” [Conaway]

At the same time, the exclusion of gay and lesbian people from marriage is under-inclusive, even in relation to the narrower goal of improving child rearing by limiting same-sex parenting.

Quite obviously, the statute does not prohibit same-sex couples from raising children. Same-sex couples currently raise children in Iowa, even while being excluded from civil marriage, and such couples will undoubtedly continue to do so.

Recognition of this under-inclusion puts in perspective just how minimally the same-sex marriage ban actually advances the purported legislative goal.

A law so simultaneously over-inclusive and under-inclusive is not substantially related to the government’s objective.

In the end, a careful analysis of the over- and under-inclusiveness of the statute reveals it is less about using marriage to achieve an optimal environment for children and more about merely precluding gay and lesbian people from civil marriage

If the statute was truly about the best interest of children, some benefit to children derived from the ban on same-sex civil marriages would be observable.

Yet, the germane analysis does not show how the best interests of children of gay and lesbian parents, who are denied an environment supported by the benefits of marriage under the statute, are served by the ban.

Likewise, the exclusion of gays and lesbians from marriage does not benefit the interests of those children of heterosexual parents, who are able to enjoy the environment supported by marriage with or without the inclusion of same-sex couples.

The ban on same-sex civil marriage can only logically be justified as a means to ensure the asserted optimal environment for raising children if fewer children will be raised within same-sex relationships or more children will be raised in dual-gender marriages.

Yet, the same-sex-marriage ban will accomplish these outcomes only when people in same-sex relationships choose not to raise children without the benefit of marriage or when children are adopted by dual- gender couples who would have been adopted by same-sex couples but for the same-sex civil marriage ban.

We discern no substantial support for this proposition. These outcomes, at best, are minimally advanced by the classification.

Consequently, a classification that limits civil marriage to opposite-sex couples is simply not substantially related to the objective of promoting the optimal environment to raise children.

This conclusion suggests stereotype and prejudice, or some other unarticulated reason, could be present to explain the real objectives of the statute.

c. Promotion of procreation. 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.

Conceptually, the promotion of procreation as an objective of marriage is compatible with the inclusion of gays and lesbians within the definition of marriage.

Gay and lesbian persons are capable of procreation.

Thus, the 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.

Even if possibly true, the link between exclusion of gay and lesbian people from marriage and increased procreation is far too tenuous to withstand heightened scrutiny.

Specifically, the statute is significantly under-inclusive with respect to the objective of increasing procreation because it does not include a variety of groups that do not procreate for reasons such as age, physical disability, or choice.

In other words, the classification is not substantially related to the asserted legislative purpose.

d. Promoting stability in opposite-sex relationships. 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. The stability of opposite-sex relationships is an important governmental interest, but the exclusion of same-sex couples from marriage is not substantially related to that objective.

e. Conservation of resources. The conservation of state resources is another objective arguably furthered by excluding gay and lesbian persons from civil marriage.

The argument is based on a simple premise: couples who are married enjoy numerous governmental benefits, so the state’s fiscal burden associated with civil marriage is reduced if less people are allowed to marry.

In the common sense of the word, then, it is “rational” for the legislature to seek to conserve state resources by limiting the number of couples allowed to form civil marriages.

By way of example, the County hypothesizes that, due to our laws granting tax benefits to married couples, the State of Iowa would reap less tax revenue if individual taxpaying gay and lesbian people were allowed to obtain a civil marriage.

Certainly, Iowa’s marriage statute causes numerous government benefits, including tax benefits, to be withheld from plaintiffs. Thus, the ban on same-sex marriages may conserve some state resources.

Excluding any group from civil marriage—African-Americans, illegitimates, aliens, even red-haired individuals—would conserve state resources in an equally “rational” way. Yet, such classifications so obviously offend our society’s collective sense of equality that courts have not hesitated to provide added protections against such inequalities.

One primary requirement of the equal protection clause is a more substantial relationship between the legislative goal and the means used to attain the goal.

When heightened scrutiny is applicable, the means must substantially further the legislative end. Consequently, in this case, the sexual-orientation-based classification must substantially further the conservation-of-resources objective.

As observed in our analysis of the other reasons offered in support of the marriage statute, significant degrees of over-inclusion and under- inclusion shed light on the true relationship between exclusion of gay and lesbian people from civil marriage and the goal of conserving governmental resources.

Exclusion of all same-sex couples is an extremely blunt instrument for conserving state resources through limiting access to civil marriage.

In other words, the exclusion of same-sex couples is overinclusive because many same-sex couples, if allowed to marry, would not use more state resources than they currently consume as unmarried couples.

To reference the County’s example, while many heterosexual couples who have obtained a civil marriage do not file joint tax returns—or experience any other tax benefit from marital status—many same-sex couples may not file a joint tax return either.

The two classes created by the statute—opposite-sex couples and same-sex couples—may use the same amount of state resources. Thus, the two classes are similarly situated for the purpose of conserving state resources, yet the classes are treated differently by the law.

In this way, sexual orientation is a flawed indicator of resource usage.

Just as exclusion of same-sex couples from marriage is a blunt instrument, however, it is also significantly undersized if the true goal is to conserve state resources.

That is to say, the classification is underinclusive. The goal of conservation of state resources would be equally served by excluding any similar-sized group from civil marriage.

Indeed, under the County’s logic, more state resources would be conserved by excluding groups more numerous than Iowa’s estimated 5800 same-sex couples (for example, persons marrying for a second or subsequent time).

Importantly, there is also no suggestion same-sex couples would use more state resources if allowed to obtain a civil marriage than heterosexual couples who obtain a civil marriage.

Such over-inclusion and under-inclusion demonstrates the trait of sexual orientation is a poor proxy for regulating aspiring spouses’ usage of state resources.

This tenuous relationship between the classification and its purpose demonstrates many people who are similarly situated with respect to the purpose of the law are treated differently.

As a result, the sexual orientation-based classification does not substantially further the suggested governmental interest, as required by intermediate scrutiny.

4. Conclusion. Having examined each proffered governmental objective through the appropriate lens of intermediate scrutiny, we conclude the sexual-orientation-based classification under the marriage statute does not substantially further any of the objectives.

While the objectives asserted may be important (and many undoubtedly are important), none are furthered in a substantial way by the exclusion of same-sex couples from civil marriage.

Our equal protection clause requires more than has been offered to justify the continued existence of the same-sex marriage ban under the statute.

I. Religious Opposition to Same-Sex Marriage.

Now that we have addressed and rejected each specific interest advanced by the County to justify the classification drawn under the statute, we consider the reason for the exclusion of gay and lesbian couples from civil marriage left unspoken by the County: religious opposition to same-sex marriage.

The County’s silence reflects, we believe, its understanding this reason cannot, under our Iowa Constitution, be used to justify a ban on same-sex marriage.

While unexpressed, religious sentiment most likely motivates many, if not most, opponents of same-sex civil marriage and perhaps even shapes the views of those people who may accept gay and lesbian unions but find the notion of same-sex marriage unsettling.

Consequently, we address the religious undercurrent propelling the same-sex marriage debate as a means to fully explain our rationale for rejecting the dual-gender requirement of the marriage statute.

It is quite understandable that religiously motivated opposition to same-sex civil marriage shapes the basis for legal opposition to same-sex marriage, even if only indirectly. Religious objections to same-sex marriage are supported by thousands of years of tradition and biblical interpretation.

The belief that the “sanctity of marriage” would be undermined by the inclusion of gay and lesbian couples bears a striking conceptual resemblance to the expressed secular rationale for maintaining the tradition of marriage as a union between dual-gender couples, but better identifies the source of the opposition.

Whether expressly or impliedly, much of society rejects same-sex marriage due to sincere, deeply ingrained— even fundamental—religious belief.

Yet, such views are not the only religious views of marriage.

As demonstrated by amicus groups, other equally sincere groups and people in Iowa and around the nation have strong religious views that yield the opposite conclusion.

This contrast of opinions in our society largely explains the absence of any religion-based rationale to test the constitutionality of Iowa’s same-sex marriage ban.

Our constitution does not permit any branch of government to resolve these types of religious debates and entrusts to courts the task of ensuring government avoids them. See Iowa Const. art. I, § 3 (“The general assembly shall make no law respecting an establishment of religion . . . .”).

The statute at issue in this case does not prescribe a definition of marriage for religious institutions. Instead, the statute declares, “Marriage is a civil contract” and then regulates that civil contract. Iowa Code § 595A.1.

Thus, in pursuing our task in this case, we proceed as civil judges, far removed from the theological debate of religious clerics, and focus only on the concept of civil marriage and the state licensing system that identifies a limited class of persons entitled to secular rights and benefits associated with civil marriage.

We, of course, have a constitutional mandate to protect the free exercise of religion in Iowa, which includes the freedom of a religious organization to define marriages it solemnizes as unions between a man and a woman. law . . . prohibiting the free exercise [of religion] . . . .”).

This mission to protect religious freedom is consistent with our task to prevent government from endorsing any religious view. State government can have no religious views, either directly or indirectly, expressed through its legislation. [Knowlton]. 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.

”The only legitimate inquiry we can make is whether [the statute] is constitutional. If it is not, its virtues . . . cannot save it; if it is, its faults cannot be invoked to accomplish its destruction. If the provisions of the Constitution be not upheld when they pinch as well as when they comfort, they may as well be abandoned.” [Home Bldg. & Loan Ass’n v. Blaisdell, 1934]

In the final analysis, we give respect to the views of all Iowans on the issue of same-sex marriage—religious or otherwise—by giving respect to our constitutional principles.

These principles require that the state recognize both opposite-sex and same-sex civil marriage.

Religious doctrine and views contrary to this principle of law are unaffected, and people can continue to associate with the religion that best reflects their views.

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.

J. Constitutional Infirmity. We are firmly convinced the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective.

The legislature has excluded a historically disfavored class of persons from a supremely important civil institution without a constitutionally sufficient justification.

There is no material fact, genuinely in dispute, that can affect this determination.

We have a constitutional duty to ensure equal protection of the law. Faithfulness to that duty requires us to hold Iowa’s marriage statute, Iowa Code section 595.2, violates the Iowa Constitution.

To decide otherwise would be an abdication of our constitutional duty. If gay and lesbian people must submit to different treatment without an exceedingly persuasive justification, they are deprived of the benefits of the principle of equal protection upon which the rule of law is founded.

Iowa Code section 595.2 denies gay and lesbian people the equal protection of the law promised by the Iowa Constitution.


Because our civil marriage statute fails to provide equal protection of the law under the Iowa Constitution, we must decide how to best remedy the constitutional violation.

The sole remedy requested by plaintiffs is admission into the institution of civil marriage.

The County does not suggest an alternative remedy.

The high courts of other jurisdictions have remedied constitutionally invalid bans on same-sex marriage in two ways. Some courts have ordered gay and lesbian people to be allowed to access the institution of civil marriage (Mass. 2004).

Other courts have allowed their state legislatures to create parallel civil institutions for same-sex couples. (N.J. 2006; Vt. 1999).

Iowa Code section 595.2 is unconstitutional because the County has been unable to identify a constitutionally adequate justification for excluding plaintiffs from the institution of civil marriage.

A new distinction based on sexual orientation would be equally suspect and difficult to square with the fundamental principles of equal protection embodied in our constitution.

This record, our independent research, and the appropriate equal protection analysis do not suggest the existence of a justification for such a legislative classification that substantially furthers any governmental objective.

Consequently, the language in Iowa Code section 595.2 limiting civil marriage to a man and a woman must be stricken from the statute, and the remaining statutory language must be interpreted and applied in a manner allowing gay and lesbian people full access to the institution of civil marriage.


Iowa Code section 595.2 violates the equal protection provision of the Iowa Constitution. Our decision becomes effective upon issuance of procedendo*.

All justices concur.

*See Iowa R. App. P. 6.1208 (stating procedendo shall issue twenty-one days after the opinion is filed unless a petition for rehearing is filed).