Iowa’s Living Constitution

Gay marriage is now a matter of Iowan constitutional law.  The state’s Supreme Court struck down the state’s ban on same-sex marriage under Iowa’s equal protection clause making it the third state in the last year to prohibit the enactment of such statutes.  Congratulations are certainly in order to those that have been denied this right for far too long.

Yet, I still feel somewhat conflicted by this result.  A huge part of me thinks that it’s great because people should be allowed to marry whoever they want.  But another side of me questions the way in which this legal obstacle in Iowa was removed.

It’s worth comparing this decision to Lawrence v. Texas, which I’ve already written was wrongly decided.  In Lawrence, Justice Kennedy’s majority opinion was rooted in an almost metaphysical interpretation of the Fourteenth Amendment’s Due Process Clause.  Sexuality, according to the Court, is a protected liberty under the principle of substantive due process.  But the Iowa Supreme Court did not strike down its same sex marriage bans on that rationale.  Rather, they adopted the reasoning of Justice O’Connor’s concurring opinion in Lawrence that such statutes violate Iowa’s equal protection clause.

At first glance, this decision seems less problematic than Lawrence.  Equal protection, in principle, seems like a more appropriate legal ground upon which to base invalidation of gay marriage bans.  Furthermore, this is by and large the state making the decision for itself.  However, I still feel that such steps should be taken by legislatures rather than courts.  Iowa has had an equal protection component to its constitution since 1857.  Just as the federal constitution, it was undoubtedly passed having protection of African Americans in mind.  Nobody would have thought in 1857 that the equal protection clause in the Iowa Constitution (or the United States Constitution 11 years later) was intended to do away with the traditional understanding of marriage.

Iowa’s Supreme Court fully recognized this.  Its opinion explicitly adopted the position that “equal protection can only be defined by the standards of each generation.”  This is basically an argument for a living constitution.  While such a theory seems to make a lot of sense, it entrusts nine judges with the task of keeping their finger to the pulse of social norm.  This I have a problem with.

When something like traditional marriage is so engrained in society, redefining it should be the task of the people through the democratic process.  As much as I’m happy for gays and lesbians in Iowa, I can’t help but be disappointed in the process through which they’ve achieved this basic right to marry the person they want.