Tuesday, April 7, 2009


by Jordan Bubin

There are very few things about which Robbie George and I agree. One of them is that it’s factually impossible for the government to be neutral on marriage. It’s amusing—in a sad way—to hear politicians claim to be neutral on the issue; you’re either for, or against. The issue gets all sorts of pretend-complicated when the principles of federalism and constitutional interpretation get worked in there, but not really: the state is either protecting you, or its not. It either grants you rights, or it denies them. In the last week, two more states have recognized this, and decided to get on the list of states which have removed their heads from their rectums.

Last week, as Laura Smith-Gary already mentioned, Iowa’s Supreme Court declared that laws prohibiting marriage based on the gender of the parties involved violated the equal protection clause of the Iowa State Constitution. It seems (to me, anyway) to be frequently argued that a same-sex marriage ban is not discriminatory, for it doesn’t in fact prohibit anyone from getting married. The argument sucks pretty hardcore, but I feel that gay marriage efforts, in response, shy away from the idea of equal protection. Here’s the Iowa court’s thoughts, when I’m stuck reading some cramped argument for class about how same-sex marriage bans are in no way discriminatory,

“It is true the marriage statute does not expressly prohibit gay and lesbian persons from marrying; it does, however, require that if they marry, it must be to someone of the opposite sex. Viewed in the complete context of marriage, including intimacy, civil marriage with a person of the opposite sex is as unappealing to a gay or lesbian person as civil marriage with a person of the same sex is to a heterosexual. Thus, the right of a gay or lesbian person under the marriage statute to enter into a civil marriage only with a person of the opposite sex is no right at all.”

Judicial decision are frequently full of cramped reasoning due to the constructed categories of the cases that came before it, and this one is no different, but it got it right above. Props to the salt-of-the-earth in the Midwest, and hopefully neighboring states will get jealous of the tourism dollars about to pour into Iowa and emerge from their rectums as well.

Then today, Vermont’s legislature overrode a gubernatorial veto to legalize gay marriage. What is awesome about this is that, though Vermont is now the fourth state to do so, it is the first where common sense arose in the legislature rather than through the court system. Don’t get me wrong; it’s great when the courts step in and patch things up. But I do think that, at times, doing so advances a cause by only a few years, and costs it many more by solidifying the opposition. There’s plenty of evidence to show that Roe v. Wade was what truly ignited the pro-lifers. Similarly, it seems to me that were Cali’s court to overturn Prop 8, it would merely serve to give fundies a springboard from which to win resoundingly in the next go-round. Courts are cool—but they do come off as the unelected bastards thwarting the will of the people in such situations. Sure, it seems like the right thing to do, but it gives demagogues a great tool to whip up anger.

Hence, it’s great that Vermont stepped up, ignored Jim Douglas, and made good things happen. Maybe Iowa’s decision influenced their ability to listen to their consciences. Perfect. Hopefully, Vermont’s legislators, by showing that it’s possible, will pave the way for other states to do the same, and we won’t have to wait for courts to figure out the longest logical route to approving what’s morally right.

For fun, a brief history of marriage in America, look above (or follow this link). Ignore Dubya; he’s thankfully gone. But the other panels ring painfully funny to me.


At April 8, 2009 at 10:36 AM , Blogger LSG said...

This is all happening at once -- D.C. is trying to get on board too, in another legislative (well, council) win. This could become a showdown, though, since apparently D.C. legislation has to be approved by Congress.


Great post, Jordan, I'm glad you're pointing out the power of the legislative vote.


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