Thursday, April 9, 2009

Those Darned Activist Judges

Joanna Grossman and Linda McClain provide an analysis of the Iowa State Supreme Court's ruling striking a 1998 state law banning same-sex marriage.

The state proffered three interests that it said were served by the law: preserving "traditional" marriage; promoting "optimal procreation," and serving financial considerations.

The court rightly rejected the first argument, noting that the classification itself cannot be the governmental interest. In other words, the state cannot justify excluding same-sex couples from marriage by merely expressing its desire to restrict marriage only to those traditionally allowed to celebrate it. The court also rejected the third reason – to conserve state resources – as insufficient to justify a classification that receives heightened scrutiny. Saving money is simply not a good enough reason, the court concluded, to justify discrimination.

The court gave deeper consideration to the second reason – the state's desire to promote optimal environments for procreation and childrearing. But, ultimately, it was unconvinced that a ban on same-sex marriage is closely related to such an objective. Though the state offered evidence that dual-gender parenting is "optimal," the court dismissed the experts' opinions as "largely unsupported by reliable scientific studies." By contrast, it stated that plaintiffs "presented an abundance of evidence and research," confirmed by the court's "independent research," for the proposition that "the interests of children are served equally by same-sex parents and opposite-sex parents." The court also found the state's attempt to further "optimal" procreation through marriage laws to be both under- and over-inclusive: Demonstrably bad would-be heterosexual parents are permitted to marry, while some same-sex couples with proven parenting skills are excluded. The court concluded that this sloppy means-end fit raises the specter of prejudice against the excluded group and is, under intermediate scrutiny, fatal.

The court thus concluded, in the final analysis, that the law's exclusion of same-sex couples from marriage was unconstitutional discrimination on the basis of sexual orientation.

If you're interested have a look at the summary or the full opinion (PDF files).

You'd think those judges would actually apply the law instead of legislating from the bench. Um...yes, I'm being facetious.

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