Last April, I sat in a pew of an Ames Baptist church sanctuary and listened to Bob Vander Plaats rail against the evils of abortion. En route to his third consecutive failed bid for governor, the lanky, likeable evangelical stood by the pulpit and encouraged his audience to partake in a 40-day vigil outside Planned Parenthood. But the fresher concern was that same-sex marriage had now been legal for a full year in Iowa.
After his speech, I approached Vander Plaats to get a quote for the local paper. How, I asked, would he overturn the 2009 state Supreme Court decision that struck down the Defense of Marriage Act? “The governor has authority in the Constitution to hold separation of powers in check,” he answered. “That’s why you need the issue of the executive order.”
That constitutionally dubious proposal, coupled with the image of Vander Plaats by the pulpit, is a telling example of the way the Christian right has attempted to muddy the distinction between theology and Iowa law. Its efforts, which will almost certainly fail in the long-term, are paying off for now. Already, with the help of nearly $1 million from out-of-state anti-gay groups, Vander Plaats spearheaded the ouster of the three Supreme Court justices up for a retention vote last year – an unprecedented victory that could have a serious impact on courts across the nation.
Vander Plaats is now barnstorming Iowa’s 99 counties, speaking in Pizza Ranch meeting rooms and imploring the four other justices responsible for the court’s unanimous marriage ruling to resign. He tells his sympathizers that he wants to protect their “freedom” from judicial “tyranny.” He is so consumed with his cause that a former campaign advisor called him “obsessed.”
Meanwhile, Iowa’s Republican House majority has launched its own offensive. On February 1, it voted with three Democrats for a constitutional amendment to ban not only same-sex marriage but civil unions too. The vote incensed gay rights activists, but its only practical purpose was to mollify fervent constituents. Senate Majority Leader Mike Gronstal, a Democrat, has vowed to kill any efforts to even debate the proposal in his chamber. He has the authority to do so and reversing course now would amount to political seppuku.
The day before the vote, Republican Rep. Rich Anderson presided over a public hearing ostensibly convened to reinforce the notion that Iowa voters should have the final say on marriage. In reality, the hearing was a pointless affair that changed the mind of no one. Its saving grace was Zach Wahls, the 19-year-old son of lesbian parents whose video-recorded testimony quickly swept across the Internet. He made the irrelevant “I support marriage as defined by God” arguments of the opposition sound all the more inane.
During the hearing, Anderson asked the raucous crowd to keep the discussion respectful. Before the House vote the next day, he claimed that failing to ban same-sex marriage would lead to state-sanctioned polygamy. A few days later, he introduced legislation to let businesses deny services to married gay couples. The bill was strongly condemned. Anderson quickly shelved it, with the caveat that a revised draft may resurface.
By now, all of this is old news. Same-sex marriage in Iowa faces no immediate threat of repeal. The arguments against it are specious at best, so conservatives have resorted to ideological war on the court’s authority. Because of this, the gay rights community has looked to the future with understandable anxiety. Paul Nemeth, a former college classmate of mine who is gay, has been reassured of the futility of the House vote but says, “It still worries me.”
Of course, no one expected the Supreme Court’s decision to end the marriage debate. Iowa takes pride in its traditional Midwestern values and has a strong evangelical population. It was the third state to legalize same-sex marriage in a country where popular opinion has only recently shifted in favor of the practice in liberal California. Opposition to the ruling, in other words, should be seen not as a step backward for gay rights but an inevitable part of progress.
Critics of the Iowa ruling like to argue that the court engaged in “activism.” Jonathan Narcisse, the former independent candidate for governor, told the Progressive last October that the justices “made law in clear violation of their constitutional authority.” But all the court did was apply a straightforward interpretation of the state’s equal protection clause to point out the obvious: because Iowa’s marriage laws excluded a class of citizens, a problem existed.
The pleas to give Iowa voters the final say on same-sex marriage ignore this entirely. Justice Mark Cady, who authored the case opinion, anticipated these pleas, writing that his court had the responsibility “to protect constitutional rights of individuals from legislative enactments” regardless of whether they “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.” Case in point: the year after the US Supreme Court struck down a ban on interracial marriage a Gallup poll showed that only 20 percent of Americans supported mixed-race unions.
The Iowa Supreme Court reviewed the Defense of Marriage Act under intermediate scrutiny, meaning that the state had the burden to show that the law would “substantially further” an “important governmental objective” – which it failed to do. Courts, however, have traditionally not required sexual orientation-based claims to undergo this level of examination.
But even under the most basic scrutiny – rational basis, which requires that a law reasonably relates to a state interest deemed legitimate by the court – same-sex marriage opponents have sparse ammunition.* Their best argument, that traditional marriage fosters responsible procreation, neglects straight partners who never have children. Their other key contention, that traditional marriage provides a healthier family environment, is anecdotal and rejected by a significant body of science. Still, the fact that several courts – including one in New York where same-sex marriage could soon be legal – have embraced these arguments gives hope to the Vander Plaats brigade.
Its hope, however, is transient. There is a more persuasive argument to be made that the government has a legitimate interest to mainstream the acceptance of the LGBT community. Last September alone, at least six gay teens killed themselves, apparently over their sexuality. My old classmate Paul Nemeth sent a letter to all 100 members of the Iowa House detailing his own suicide attempt 10 years ago. By all indications, his generation has little interest in relegating gays to second-class citizenry.
In the meantime, Bob Vander Plaats is working to repeat his success with Mike Huckabee in 2008 and again propel a social conservative to victory in the Iowa caucuses. He has made bedfellows with people who compare the health risks of smoking to homosexuality and blame gays for the Holocaust. So have some GOP presidential hopefuls – a winning strategy for next year’s Iowa primary, perhaps, but not forever.
It is true that the majority of states have constitutional amendments banning same-sex marriage and that many judges will probably still uphold them. But as a new generation comes to power these laws will become increasingly vulnerable. If state legislatures don’t eventually extend marriage rights to gays the federal Supreme Court someday will. The prospect of same-sex marriage as the law of the land is a matter not of if but when.
Clarification: While the arguments of gay rights opponents may be weak, this statement isn’t entirely true. Under rational basis review, which usually plays out in the state’s favor, the state is only required to hypothesize an interest it claims to be legitimate, whether or not it actually is.
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