Repost from Comments on the Contemporary: Iowa Supreme Court -- Politics Not Law

I don't normally repost another writer's work, but this an important legal analysis of the Iowa Supreme Court ruling on same sex marriage. This post appears on Comments on the Contemporary.

The recent Iowa Supreme Court opinion in the case of Varnum v. Brien filed April 3, 2009 is a classic study in politics and how judges can write an opinion justifying any position they wish to take by ignoring facts, the law and good sense. The Court dismissed traditional marriage by saying:

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, 37 Cal. L. Rev. at 357 (quoting Truax v. Raich, 239 U.S. 33, 41, 36 S. Ct. 7, 10, 60 L. Ed. 131, 135 (1915)).

In other words, by doubletalk.

The Court decision, overruling Iowa's statute defining marriage as a union between a man and woman, is rife with emotional and political content, but very little actual law. Ignoring the very nature of the same-sex relationship, the Court says, in one example, "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."

I have written previous posts that address both of these issue extensively. One comment, there is nothing in either a same-sex relationship or a opposite-sex relationship that insures that a child will be raised in a stable framework. Using this kind of argument has nothing whatsoever to do with equal protection and everything to do with propaganda.

The entire argument of the Court is based on a fallacy, analyzing the constitutionality of the statute based on sexual orientation discrimination. The fallacy is simple; How do you prove sexual orientation? What is the test that a member of the supposed "class" must pass in order to legally become a member? Apparently, unlike any other suspect class, all the person has to do is say that they are a member of the class. Unfortunately, this is not the test for religious discrimination. There are hundreds, perhaps thousands of cases, involving, for example, the military draft, where someone had to prove they were of a certain religious persuasion. But here the Iowa Court would allow anyone, without any qualification whatsoever, to "belong" to the suspect class based on an undefined "sexual orientation."

Although the Court discusses, at length, whether or not sexual orientation is immutable in a legal sense, it does so without ever defining sexual orientation at all. The Court, after examining all of the arguments, makes its decision based on justifying its position and dismissing all counter-arguments as irrelevant.