The Iowa Way


Today’s unanimous ruling in favor of same-sex marriage by the Iowa Supreme Court not only takes a two-by-four to the actual secular arguments advanced by appellant Polk County on behalf  of the state statute limiting civil marriage to a union between a man and a woman. It also acknowledges the religious basis of opposition to gay and lesbian unions, and proceeds to 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.”

What follows is as clear an articulation as could be desired of the difference between civil marriage as constituted by a government forbidden to legislate “respecting an establishment of religion,” and marriage as it may be conceived religiously. I’ve included the relevant section after the jump because from now on it’s the text to be reckoned with for religious opponents of same-sex marriage, be they Catholic bishops, Southern Baptist pastors, Orthodox rabbis, or members of the Vermont House of Representatives. It’s a great text for classroom use as well.

And one other thing. By noting that there are various religious groups that recognize same-sex marriage, the Court makes it clear that this is not an issue pitting secular norms against  “religion.” There are “people of faith” on both sides. Those disposed to construct the culture wars purely as secular v. religious take note.

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.29 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.30 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.31

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. See Iowa Const. art. I, § 3 (“The general assembly shall make no 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 v. Baumhover, 182 Iowa 691, 710, 166 N.W. 202, 208 (1918). 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, 290 U.S. 398, 483, 54 S. Ct. 231, 256, 78 L. Ed. 413, 452 (1934) (Sutherland, J. dissenting).

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.

29A survey in the Des Moines Register in 2008 found 28.1% of individuals surveyed supported same-sex marriage, 30.2% opposed same-sex marriage but supported civil unions, and thirty-two percent of respondents opposed both same-sex marriage and civil unions. Erin Jordan, About 6 in 10 Iowans back same-sex unions, poll finds, Des Moines
Register, Nov. 26, 2008, at 4B. The Des Moines Register survey is consistent with a national survey by the PEW Research Center in 2003. This PEW survey found that fifty-nine percent of Americans oppose same-sex marriage, and thirty-two percent favor same-sex marriage. Schuman, 96 Geo. L.J. at 2108. However, opposition to same-sex marriage jumped to eighty percent for people “with a high level of religious commitment,” with only twelve percent of such people in favor of same-sex marriage. Id.

30Schuman, 96 Geo. L.J. at 2109-12 (discussing the religious arguments against same-sex marriage found in both the Old and New Testaments of the Bible, supporting a conclusion that homosexuality is considered to be a sin and same-sex marriage to be an extension of that sin).

31Many religions recognize same-sex marriage, such as Buddhists, Quakers, Unitarians, and Reform and Reconstructionist Jews. Schuman, 96 Geo. L.J. at 2108. Amicus curiae Iowa and National Faith Leaders, Communities, and Scholars point out the United Church of Christ encourages, but does not require, its local congregations to adopt wedding policies that do not discriminate between heterosexual, gay, and lesbian couples, while the Episcopal Church permits priests to perform liturgies and blessings at same-sex weddings as a matter of pastoral care. Additionally, many groups and clergy within various religions are working to achieve inclusion of same-sex marriage. Id. at 2108-09.