Activist Judge Enforces Constitution

I recently emerged from a protracted and uncomfortable stay in summary judgment hell to discover that the good guys won one in my absence. Robert B. Hanson, a state court trial judge with the Polk County District Court in Iowa, ruled on August 30 that an Iowa statute limiting marriage to heterosexuals only violated the due process and equal protection provisions of the Iowa Constitution.

The plaintiffs were six committed, long-term same sex couples who had applied for marriage licenses with the Polk County, Iowa Registrar and been turned down because of Section 595.2(1) of the Iowa Code, which limits marriage to heterosexual couples. Plaintiffs sought an order declaring the statutory ban on same-sex marriage unconstitutional and an injunction requiring the Registrar to issue marriage licenses to them. On cross-motions for summary judgment, the court ruled for the plaintiffs on virtually every issue.

The opinion is available here:

Varnum v. Brien (PDF, 63 pages).

It’s masterful on several levels. First, this is one ballsy judge. As far as I’m aware, he’s the first jurist in the country to apply “strict scrutiny” to a due process/equal protection challenge to a same-sex marriage ban.

A quick word of explanation is in order. No court applies a constitutional equal protection guarantee as written. Doing so would require invalidation of every law that affords any sort of disparate treatment, i.e., pretty much every law. To avoid that absurd result, courts have developed a multi-tiered analytical approach for equal protection/substantive due process claims based on who or what activity a law targets. A statute that impairs the exercise of a fundamental right or establishes a suspect classification — race being the quintessential one — is subject to “strict scrutiny.” Under that approach, the law is unconstitutional unless the state proves that it’s the least restrictive means of achieving a compelling state interest. When you see a court declare early in its opinion that it will apply strict scrutiny, it’s close to certain that the court will find the law under consideration unconstitutional.

If the law doesn’t impair a fundamental right or create a suspect classification, it’s generally subject to “rational basis” review. Under that standard, the law is presumptively constitutional and will be upheld if it’s rationally related to any legitimate government interest. The burdens of production and persuasion are on the challenging party. The government interest doesn’t even have to be what the legislature actually had in mind when it passed the law. If the lawyers can come up with any legitimate reason the legislature might have used, the law survives. The reason so devised can be total post hoc bullshit.

In this case, the judge noted that U.S. Supreme Court and Iowa Supreme Court have deemed marriage a fundamental right. On that basis he applied strict scrutiny and shot down the law because the purported state interests — (1) promoting procreation, (2) promoting child-rearing in a mother-father setting, (3) promoting stability in opposite-sex relationships, (4) conserving public and private resources, and (5) “promoting the concept or integrity of traditional marriage” — are not compelling. In addition, the means of promoting those interest, namely a total ban on same-sex marriage, isn’t narrowly tailored to produce those results. For instance, the defense never managed to articulate exactly how precluding gays from marrying promotes procreation.

Finding this law unconstitutional under a strict scrutiny approach is a no-brainer. The ballsy part is the judge’s holding that the term “marriage” in the sentence “Marriage is a fundamental right” includes same sex marriage. That’s some pretty revolutionary stuff right there.

As to equal protection analysis, there’s an intermediate level of judicial scrutiny that applies to classifications based on gender. Under that analysis, a statute violates equal protection rights unless it’s “substantially related” to an “important” government interest. As with strict scrutiny, the government bears the burden of proof. The judge held that the same sex marriage ban was a gender based classification that failed intermediate scrutiny. The defense produced no evidence that prohibiting men from marrying men and women from marrying women had any bearing on the five policy rationales listed above.

No trial judge fancies getting reversed on appeal, so Judge Hanson covered his own backside with the absolutely magnificent rational basis analysis that begins on Page 49 of the opinion. Especially satisfying is Judge Hanson’s use of a line from Antonin Scalia’s dissenting opinion in Lawrence v. Texas, 539 U.S. 558 (2003), in which the U.S. Supreme Court shot down a Texas statute criminalizing gay “sodomy.” Scalia made a rather half-assed slippery slope claim in his dissent, arguing that the majority’s holding opened the door to striking down heterosexual only marriage laws. Encouraging procreation would not be sufficient to uphold those laws, Scalia pontificates, because “the sterile and the elderly are allowed to marry.”

Well, no shit, Tony! I have no idea whether it actually happened, but I’d like to think that Judge Hansen was in his chambers roaring with laughter over using Scalia’s words to bring about the very catastrophic consequence that Scalia was warning against.

But that’s nowhere near the most amusing part of the opinion. The real funneh begins on Page 5, where the judge provides his reasons for rejecting certain “expert testimony” proffered by the defense. Among the witnesses were three socially conservative wingnuts who apparently hold academic posts at McGill University in Montreal, Canada. One such crackpot, Margaret Sommerville, “specifically eschews empirical research and methods of logical reasoning in favor of ‘moral intuition.'” Beyond the McGill crazies, the defense proffered an alleged economist whose self-described research focuses on “big synthetic stuff and wander[ing] into other people’s territories.”

Jesus Christ. The Daubert decision has rarely if ever appeared more tailor-made to specific “experts.”

But the real beauty of the decision lies in the statement of undisputed facts set out on Pages 16 through 43. This magnificently detailed, superbly presented material is the result of stellar lawyering on the part of plaintiffs’ counsel. Check out in particular the “Harms from the Denial of Marital Rights” section beginning on Page 21. You’ll rarely see a better laundry list of the legal rights and obligations involved with marriage.

It’s foolhardy to call any trial court decision “bulletproof” on appeal, especially one involving an issue as contentious as gay marriage, but this ruling is about as close as you can get. The Iowa Supreme Court is free to reverse, of course, but they’ll have to do a helluva lot of disregarding the trial court record and disingenuous intellectual tap dancing to do it.

On the down side, the judge stayed his ruling pending appeal.

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