Iowa marriage argument – good try

by on December 9, 2008  •  In Marriage

Lambda Legal did their typically excellent job of lawyering with the challenge to the Iowa marriage law that was argued this morning before the Iowa Supreme Court. (Kudos to lead counsel Camilla Taylor) But the court did not seem particularly receptive. (You can watch a webcast on the Des Moines Register web page; read the briefs at the court's web page.)  Although one can never confidently predict an outcome from hearing the argument, since judges routinely play devil's advocate with their questions, I would be very surprised if this case puts Iowa into the short list of states with marriage equality.

Most of the arguments in defense of the exclusion were same old, same old: that polygamy is around the corner; that in a few generations, the legality of same-sex marriage might somehow discourage different-sex couples from marrying (a horrific prospect, all agreed), and that the goal of preserving a traditional institution could satisfy a rational basis test.  The court was having none of the attempt to secure a heightened scrutiny standard.

Several judges expressed discomfort that the trial court had excluded some of the state's expert witnesses as unqualified (background here). However, all of the depositions and statements were in the record (even if excluded as evidence), and Lambda's local counsel who argued the case (quite well, I thought), invited the justices to basically just read the materials if they were curious. Technically, the court could rule that the exclusions were error and send the case back to the trial level, with instructions to consider the state's evidence and rule again, but I doubt that will happen.

At the end, in his rebuttal, the attorney defending the statute (a mini-DoMA adopted 10 years ago) warned that radical homosexuals (ok, he didn't say that, but he communicated that) were out to "destroy marriage to gain equality." So to save marriage, we have to deny … You get it.

It's laughable as a legal argument, but an effective sound bite, not least because the response is always to fall into the trap of arguing, oh no, we LOVE marriage, it's great, fabulous, just what we've always wanted, bring on the drunken dancing relatives.

To quote literally the last words spoken before the court, which sounded more like a rorschach response than a legal argument: "when family life is good, life is good." The attorney for the state, who said it, apparently thought that the meaning of that particular Hallmark phrase was not only self-evident but also presumptively universal. And that assumption pretty much says it all.


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