Sunday, April 5, 2009

Iowa Supreme Court -- Politics not law

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.

More later


  1. From the court ruling, "A specific tradition sought to be maintained cannot be an important governmental objective for equal protection purposes". By this reasoning frequent and fair elections should be outlawed, because not everyone gets elected (no equal protection), it's just a tradition that someone gets elected.

    But then equal protection is just a tradition too, maybe that should be eliminated? What about citizenship and naturalization? Should we declare all people in the world to be US citizens because only by "tradition" we exclude certain people?

    Didn't the judges just declare legal and historical precedent to be invalid? Does that mean they can't use precedent in making decisions? I think they opened up a Pandora's Box of problems (with out the hope at the end).

  2. I liked this one a lot. I hope you don't mind. I reposted this to my own website.

  3. I find it curious that someone whose blog begins with a quote establishing the importance of liberty and equality would so quickly deny such values to homosexuals. As your quote states, we should not be concerned with merely the liberty and equality of ourselves, but of ALL persons: "And now I desire that this inequality should be no more in this land, especially among this my people; but I desire that this land be a land of liberty, and every man may enjoy his rights and privileges alike."

  4. James Tanner, the Court opinion referred to sexual orientation about 100 times. It made a leap into gay identity politics by referring to "intimacy".

    From your reading, do you agree that the opinion failed to establish "intimacy" as a legal requirement in marital status?

    I think the court used the term as euphemism for sexual attraction, sexual behavior, and sexual identity. These the court did mention. Yet none of these are legal requirements.

    It was from "intimacy" that the court lept to a claim that the man-woman criterion classified based on sexual orientation.

    It did a hop and a skip and a jump, without its feet touching the ground at any point.

  5. Just because you're incapable of understanding the legal analysis doesn't make it "doubletalk."

  6. Ah! I see you've started to gather comments from others. You've also warranted a "scathing" rebuke from one of the folks who has nothing better to do than pick apart other peoples' blogs.

    I find it interesting that since someone doesn't agree with my point of view that they always seem to call my credentials into question: "If you were a real college professor, you would think...." I looks like your professional background has been called into question since you don't agree with the idea of same sex marriage: "Because you're incapable of understanding the legal analysis...."

    I guess what impresses me about these types of statements is the assumption that we're somehow uneducated or incapable of analysis since we don't come to the same conclusions as gay activists. The implication is that only people who agree with gay activists are intelligent.

  7. It goes even one step beyond that Euripides. I've never "met" more closed-minded individuals than so-called liberals (e.g., gay activists or other liberal activists) who comment online. As you said, many simply resort to ad hominem attacks. I've met countless people who can't fathom how any intelligent person could be conservative.

    It's like the attacks against Pres. Bush. Occasionally his policies were attacked but more often he was attacked; he was compared to a chimpanzee, he was declared a dunce, he was ridiculed by mass media for 8 years as someone who was completely inept. Instead of criticizing policies with intelligent analysis, many resorted to attacks on his character because it's much easier to do. They declared him imbecile, completely ignoring his scholastic aptitude testing scores (that put estimates of his IQ at about 118, or about the 90th percentile). They also ignored the fact that he read at least books a year, even while president; most books were non-fiction - histories and biographies (source: How many books do all of these critics read?

    I took this semi-digression in order to support my argument (and Euripides') that so many liberals (and conservatives, for that matter) resort to ad hominem attacks when they disagree with someone. The constant attacks on Pres. Bush over his 8 year tenure were just one symptom of that.

  8. Jared, indeed some of the most intellectually provocative and politically astute criticisms of GWB's various policies were made by conservatives.