I just spoke to my wife, and she agreed to allow me to post her entry from the Religious Action Center of Reform Judaism today.

Since she is a law professor, I thought her take on this might be of interest to some.

Sally Frank is a member of the Union for Reform Judaism’s Commission on Social Action and a Professor at Drake University Law School.  All views expressed are her own.

Last Friday, the Iowa Supreme Court overturned Iowa’s ban on same sex marriage in a unanimous opinion authored by arguably the most conservative Justice on the Court.  It is obvious in reading the opinion that the Court is anticipating the negative reaction it will get from some.  After describing the ordinariness of the twelve plaintiffs and how they stand out only because of their sexual orientation, the Court went on to give a civics lesson.  It reminded its readers of the roles of each branch of government and that it was fulfilling its role in determining the constitutionality of a statute.  The Court then summarized its history of leadership in civil rights issues.  The first case in the territorial Iowa Supreme Court ruled that no one could be property and therefore refused to allow the return of a fugitive slave years before the Dred Scott case, it outlawed school segregation and ruled against separate but equal in the late 1800’s.  It was also the first state to admit women to the bar.

Another important aspect of the ruling was that it analyzed discrimination based on sexual orientation with heightened scrutiny.  This is the level of scrutiny used when reviewing laws discriminating on the basis of gender.  To pass this scrutiny, the government had to show that the law was closely related to a significant governmental interest.  The Court held open the possibility of analyzing future cases involving sexual orientation under the even higher test of strict scrutiny which is the test used for race discrimination.

Once the Court determined how to review the statute, it analyzed every argument raised to support the marriage ban and found all of them lacking.  It then addressed the unstated argument- – the objections of some religious groups to marriage equality.  In a footnote, the Court specifically referred to Reform Judaism’s support for marriage equality.  The opinion clearly stated throughout that the issue before it was civil marriage.  In this section of the opinion, the Court made clear that religious marriage is up to each religious group and would not be affected by this ruling.

Lastly, the Court ruled that Civil Union or any other attempt to address the ruling without having civil marriage would fail constitutional tests.  This ruling, as with all rulings from the Iowa Supreme Court will be effective in twenty-one days, unless the County seeks further review.  The County Attorney has said he will not do that.  Thus, we in Iowa are ready to welcome our own residents and those from around the country to come and get married starting April 24.  (There is a 3 day waiting period from getting the marriage license to getting married, though.)

I was in the County Courthouse the morning that the ruling was issued and the excitement was palpable.  Several people were stopping by the courtroom of the judge who issued the ruling that was upheld by the Supreme Court.  He quickly told us that the cake we saw sitting there was because it was his birthday not to celebrate the ruling.  Modestly, he said merely that he was glad that the Supreme Court had found his reasoning sound.

Friday night, there were celebration rallies throughout the state.  In Des Moines, about 1,000 people came for a rally that lasted just over one hour.  Many had tears in their eyes as we greeted the plaintiffs, their lawyers, and those from organizations supporting them.  Des Moines’ mayor also spoke.  There were similar rallies with hundreds of people all around the state.  One speaker mentioned discussing with a California chapter of her organization how to celebrate Iowa.  She announced that there would be popcorn on the street of the Castro that night. After the rally there was a party celebrating the ruling, which was widely attended.  The joy is still palpable today.

For those wondering about the possibility of an amendment to the state constitution, nothing will happen soon.  A letter was read at the rally from the majority leaders of our state assembly and state senate hailing the ruling and saying that given the short time left in this legislative session and the pressing budget issues facing the state there would be no reason to waste time debating this issue.   A constitutional amendment in Iowa has to pass two separate legislatures before it can get on the ballot.  This is the first year of our current legislature.  Thus, no amendment can pass for at least 2 ½ years.  The momentum may not be strong to amend the constitution either.  Even a conservative columnist for the Register suggested that people look at the tourist dollars the ruling will bring before they get too upset and try to overturn the ruling.

To read the ruling of the Court, go here

and click on ruling.

Posted by Religious Action Center of Reform Judaism on April 6, 2009 4:55 PM |