Iowa's impact on Indiana: my heart versus my head

by Don Sherfick

“So…you’re a lawyer….what’s your take on the Iowa decision?” my friend, knowing my involvementand interest in helping fight the so-called “Indiana Marriage Protection Amendment” that’s dead again this time around in the General Assembly.  Last Friday's unanimous decision by the Iowa Supreme Court saying that restricting civil marriage to opposite sex couples had already prompted speculation concerning the impact on Indiana.

“Very well-reasoned”, I responded, knowing that the next comment from her would be something about my longstanding insistence that despite loud squawking by those pushing the discriminatory measure (first called SJR-7 and then with some wordsmithing SJR-15), such a decision just wasn’t in the cards for the Hoosier state.

I must confess that my heart and my head are not at all in sync on this one.  If I were to say that in my heart I didn’t rejoice in its impact on gay and lesbian couples in Iowa, and its psychological effects throughout the nation, my nose would and should immediately grow longer like Pinocchio’s.  And folks like the Indiana Family Institute’s Ryan McCann would, as they’ve done before, call me out for doublespeak, something I still believe they wrote the book on when it comes to this kind of “bait and switch” and other contradictory behavior. 

But my head looks at the reality of the situation, and despite all of the rhetoric about impending doom spreading across the Mississippi River, across Illinois, and into the Indiana Supreme Court’s chambers, I still say, with others who’ve bothered to study Indiana constitutional law, that it simply "AIN'T gonna happen here".   At least not until Justices Scalia, Thomas, and maybe Alito endorse late term abortions and singing the full praises of Roe vs. Wade.

Now I’m not going to put you to sleep with a lot of legal gobbdygook on how the Iowa and Indiana court precedents take a very different approach to “equal protection analysis”. At least not now, until I get a chance to go back and read the entire Iowa decision in more depth, long footnotes included. Suffice it to say now that while our highest court falls all over itself to defer to the General Assembly, not even looking at motive when it’s staring the justices in the face, their Iowa counterparts looked and saw an antigay motivation they said couldn’t stand Iowa constitutional muster.

In dealing with Indiana’s marriage laws, our courts have said that so long as there is any plausible reason for treating similar classes of people differently, they’ll rubber stamp it and go out for coffee even if they think the legislature didn’t have that reason anywhere in mind when the law was enacted.

I could go on and on here, and probably will later on, but for now, when you begin to read and hear the noisy chorus of people insisting that Indiana needs an amendment because “unelected activist judge” disease is just one state away from Hoosierland, remember this: Every state is different when it comes to interpreting its constitution . Remember not too long ago when our opponents were making distinctions between Michigan/Ohio decisions and what Indiana would do concerning things like domestic partnerships/domestic violence under different amendment language?  They can’t have both sides of the same argument…..but of course that doesn’t deter them from trying.

Besides, all this stuff about the “tyranny of an unelected activist judiciary” as the reason for a constitutional amendment is just so much disingenuous baloney (you won’t find that term in Black’s Law Dictionary).  Once upon a time those pushing a prior version of their proposed amendment loudly claimed that it definitely wouldn’t  keep the General Assembly from enacting civil unions. Now, although they’ve gone to great lengths to avoid pointing it out, their new measure would stop a popularly elected set of lawmakers from passing such legislation or anything near it.

 Read My Lips:  It AIN’T  just about judges…that’s a convenient and misleading slogan…..what they really want is do is make it nearly impossible for future Hoosiers, already changing in their attitudes, to work the popular will concerning the civil rights of gay and lesbian couples.  “The times, they are a changing”, and those who take upon themselves to permanently enshrine what they consider “God’s will” into the state’s highest legal document are getting frantic.

In the meantime, my hat’s off to the wonderful folks at Lambda Legal and their colleagues for a splendid showing in Iowa in dealing with Iowa constitutional law.  In my dreams I’d like to see something like that here.  But I always wake up, and am slapped in the face by the very real and different practical judicial realities in the Indiana landscape.  Our opponents know that, too, but since when did a little thing like Indiana constitutional law principles stop them from passing the collection plate and trying to hide all the ramifications of what they’re trying to do.

Comments

[Ed Fox]

Don,

It is not (merely) the difference between Indiana constitutional law and Iowa constitutional law that is important. There is a gulf between the cultures of the two states. (There are probably several, but let us limit our discussion to one that matters here.) Iowans pride themselves on the fact that the single founding principle of the state is equality Hoosiers do not.

In following this case I was struck by the fact that everyone in Iowa, reporters, people in the street, even opposing counsel proclaimed that equality of all people was the most important Iowa value. They proclaimed that Iowa was not bound by the restrictions placed on equality from time to time by the United States Supreme Court, but that it was Iowa's right and tradition to go further to protect and affirm the equality of all. Indiana has a wonderful bill of rights, but the courts have declared, for this purpose, at least, that it is moot, mere verbiage, without effect. And Hoosiers do not discuss legal and social questions in a framework of equality first. So there is little reason to believe that the virus of equality will soon infect our courts; not that IFI needs any reason at all, not that they resort to it often.

There is an example of this shunning of reason, appropriate to this discussion: They insist that "unelected, activist, judges" make up their decisions from whole cloth in utter disregard for the law of the land. Why, if they really believe that, do they go on to believe that what is needed to stop those judges is another law? Why do they believe that such rogue judges, as inhabit their febrile minds, would suddenly defer to their law and desist? Do they believe that their words have some magic power that is lacking in the constitutions of the United States and Indiana? Are their drafting skills so infinitely superior to any that have come before? Or have they concocted some spell to incant over their amendment that will ward off evil spirits and judges?

I understand that your concerns are not allayed by my reason, because it is irrational reaction and irrational fear that you believe may get the amendment ball rolling again here. You are not wrong to be concerned, but we cannot cower in the shadows afraid to win. California has shown us that we can take a loss that we thought would be unbearable, and rebound, stronger than ever. Despite setbacks, we are clearly winning;IFI and friends are panicked that their case is beyond hope. Now is not the time to falter. Now is not the time to let them regroup.

There are a couple of things about the Iowa decision that are important (every word is important): it was unanimous. Let me repeat: IT WAS UNANIMOUS. All the other court decisions on this matter have been split. All have been close. This one was not. This decision shreds every argument and leaves no cover for prejudiced judges who would conceil their bias.

This decision continues the development of the arguments and issues at law, and in society, that surrounds this cause. This decision makes a quantum leap, thanks to Judge Robert B. Hanson, and the efforts of Lambda Legal, in that development. I urge everyone to read both Judge Hanson's decision (you may skip the first thirty pages) and the Iowa Supreme Court's recent one. They abound with descriptions of the wrongs to same-sex couples and their children and to the utter futility of the supposed support for "traditional" marriage. Those descriptions are given in simple language that is easy to understand. The supreme court added a coda to its decision on the place of religion in our laws and the total lack of effect of their decision on the religious freedoms of such people as IFI.

Just as those arguments have developed from case to case, starting in Hawaii, so they develop in the general discussion. That is the ammunition that will allow us to prevail on the Indiana legislature to abstain in the near future from disgracing themselves, and just maybe, go on to enact equality in this state.

Make a list of gains and losses for yourself. Refer to it every time your spirits start to flag.

[Jenny]

Great article! I came to a very similar conclusion that I shared on my own blog. My link is attached if you want to check it out.