Decisions such as the Iowa Supreme Court’s recent announcement that the state’s constitution requires the state to make same-sex monogamous marriage legal pose a practical dilemma for those of us who support gay marriage, but oppose the more egregious varieties of legal hocus-pocus.
And make no mistake—the court’s decision is a bunch of question-begging nonsense, poorly disguised by a smokescreen of law talk.
Stripped of its verbiage, the court’s opinion comes down to the following claims: First, it’s a bad thing for the state to treat people differently on the basis of sexual orientation, unless the state has a good enough reason. Second, the reasons the state gave for treating same sex-couples differently from opposite-sex couples in regard to marriage weren’t good enough.
That’s it. These conclusions might raise various questions in the mind of someone who hasn’t enjoyed the benefits of a legal education. Such as, what was the court’s basis for these claims? Is there anything specifically “legal” about these conclusions? And how did the judges figure this stuff out, especially given that it took more than a century before anyone noticed Iowa’s constitution contained this requirement?
Personally, I think a decision like this (and the whole fracas in California, and elsewhere) is one good argument for dumping civil marriage altogether. And there are more.
He did make one statement that I found especially fascinating:
To dive into the law talk for a moment, the court said it was interpreting the equal-protection clause of the Iowa constitution, which, like the U.S. Constitution, guarantees the state’s citizens that they will be treated equally by the law.
Yet, just as in the case of the federal constitution, this phrase is, as a practical matter, meaningless. It’s meaningless because a legal directive telling the government to treat people equally in and of itself decides nothing. As my old criminal-law professor Peter Westen pointed out in a famous article 25 years ago, in terms of legal-decision-making, equality is an empty idea.
In an Elitist Snob society, equality is both an empty idea and a dead letter. When you centralise power and the ability of people to obtain that power, you by necessity stratify society. And that stratification eviscerates equality on a practical level, irrespective of whether you make it a mantra or not.