Ken Klukowski

Iowa’s Supreme Court has now declared a constitutional right to same-sex marriage. The court’s claim to have dispassionately arrived at this decision is undermined by its comparison of this decision to prior cases about slavery and discrimination and by the Iowa court’s breaking with the U.S. Supreme Court while claiming to follow precedent. It will now be difficult for Iowa voters to ever decide this issue for themselves. Same-sex marriage has come to the Midwest by judicial decree.

On April 2, the Iowa Supreme Court held that the Iowa statute banning same-sex marriage violates the equal protection guarantee of the Iowa Constitution. The opinion was unanimous. There was no dissent, and no separate opinion. The Iowa court spoke with one voice to hold that the Iowa Constitution includes the right of homosexuals to marry, invalidating any state law to the contrary. Iowa joins Massachusetts and Connecticut in declaring gay marriage through judicial fiat.

Although the opinion is written with clarity and evenhanded language, the Iowa court chose to cast this issue in terms that show what the justices personally believe. It compared this case to two cases in the 1800s, one where it refused to support slavery and another where it refused to uphold a law banning women from being lawyers. The Iowa court pointed out that in both cases it arrived at these conclusions years before the U.S. Supreme Court, suggesting it considers itself to play a leading role in breaking new ground for equal rights.

Although the court said it was taking its equal protection cues from the U.S. Supreme Court, its opinion shows the Iowa court did the exact opposite on the only point that matters. Often in law you can set up a situation where if a court applies a certain legal test it will lead to the result you seek. For equal protection cases, the Iowa court decided that “heightened scrutiny” was appropriate for cases involving homosexuals. However, in the 1996 case Romer v. Evans, the U.S. Supreme Court held that heightened scrutiny does not apply to gays. Instead it applied minimal scrutiny, called the rational-basis test.

While that sounds technical, it decided this case. It’s very rare for a law to fail rational-basis review. However, heightened scrutiny (especially a form called “strict scrutiny”) is usually fatal to the law in question. By picking the test, you pick the result. And by ignoring the U.S. Supreme Court’s precedent, the Iowa court achieved the result it sought.


Ken Klukowski

Ken Klukowski is a bestselling author and Townhall’s legal contributor covering the U.S. Supreme Court, and a fellow with the Family Research Council, American Civil Rights Union, and Liberty University School of Law.