Same-sex marriage will be legal in Iowa!

Citing Marbury v. Madison, McCulloch v. Maryland, Lawrence v. Texas, Dred Scott v. Sanford, and Brown v. Board of Education, the Iowa Supreme Court today ruled that the state statute defining marriage as between a man and a woman is unconstitutional under the Iowa Constitution. Beginning in three weeks, same-sex couples will be able to marry in Iowa. (Read the full, awesome, unanimous opinion here. No. 07–1499.)

I'm going to quote some of the best excerpts:

In fulfilling this mandate under the Iowa Constitution, we look to the past and to precedent. We look backwards, not because citizens’ rights are constrained to those previously recognized, but because historical constitutional principles provide the framework to define our future as we confront the challenges of today.

Our responsibility, however, is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time. The framers of the Iowa Constitution knew, as did the drafters of the United States Constitution, that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” and as our constitution “endures, persons in every generation can invoke its principles in their own search for greater freedom” and equality. ...

Finally, it should be recognized that the constitution belongs to the people, not the government or even the judicial branch of government.

p. 15.

The primary constitutional principle at the heart of this case is the doctrine of equal protection. ...

The point in time when the standard of equal protection finally takes a new form is a product of the conviction of one, or many, individuals that a particular grouping results in inequality and the ability of the judicial system to perform its constitutional role free from the influences that tend to make society’s understanding of equal protection resistant to change. As Justice Oliver Wendell Holmes poignantly said, “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.” ...

So, today, this court again faces an important issue that hinges on our definition of equal protection. This issue comes to us with the same importance as our landmark cases of the past. The same-sex-marriage debate waged in this case is part of a strong national dialogue5 centered on a fundamental, deep-seated, traditional institution that has excluded, by state action, a particular class of Iowans. This class of people asks a simple and direct question: How can a state premised on the constitutional principle of equal protection justify exclusion of a class of Iowans from civil marriage?

pp. 16-18.

Therefore, with respect to the subject and purposes of Iowa’s marriage laws, we find that the plaintiffs are similarly situated compared to heterosexual persons. Plaintiffs are in committed and loving relationships, many raising families, just like heterosexual couples. Moreover, official recognition of their status provides an institutional basis for defining their fundamental relational rights and responsibilities, just as it does for heterosexual couples. Society benefits, for example, from providing samesex couples a stable framework within which to raise their children and the power to make health care and end-of-life decisions for loved ones, just as it does when that framework is provided for opposite-sex couples.

In short, for purposes of Iowa’s marriage laws, which are designed to bring a sense of order to the legal relationships of committed couples and their families in myriad ways, plaintiffs are similarly situated in every important respect, but for their sexual orientation. As indicated above, this distinction cannot defeat the application of equal protection analysis through the application of the similarly situated concept because, under this circular approach, all distinctions would evade equal protection review. Therefore, with respect to the government’s purpose of “providing an institutional basis for defining the fundamental relational rights and responsibilities of persons,” same–sex couples are similarly situated to opposite–sex couples.

pp. 28-29.

The case was decided on state constitutional grounds, so it is impossible for Polk County to challenge the ruling in the U.S. Supreme Court. Short of a state constitutional amendment, which simply can't be done in three weeks, this ruling will remain the law in Iowa. Same-sex couples (apparently there are 5,800 of them in Iowa) will start marrying.

The County advanced a number of arguments in support of its claim that the state statute should be upheld: maintaining traditional marriage, promotion of optimal environment to raise children, promotion of procreation, promoting stability in opposite-sex relationships, and conservation of resources. First, the court found no governmental interest in maintaining traditional marriage. Second, it found that same-sex parents fare just as well as opposite sex ones in raising children. It also found that the exclusion of same-sex marriages did not promote procreation or stability in opposite-sex relationships. Finally, it found that the state's interest in conserving resources was not substantially improved by keeping same-sex marriages illegal.

The court then addressed "the reason for the exclusion of gay and lesbian couples from civil marriage left unspoken by the County: religious opposition to same-sex marriage." It found that even though a religious objection is not sufficient to uphold the statute, even some religions support same-sex marriage:

This contrast of opinions in our society largely explains the absence of any religion-based rationale to test the constitutionality of Iowa’s same-sex marriage ban. Our constitution does not permit any branch of government to resolve these types of religious debates and entrusts to courts the task of ensuring government avoids them.

p. 65. Citing the separation of church and state, the court makes clear that this case must be decided on equal protection grounds, and not on free exercise of religion grounds.

Finally, perhaps the best sentence of the whole opinion, on p. 69: "All justices concur."

Today's a proud day to be an Iowan.

Spring and organic vegetable gardens

Six weeks of classes remain in my second year of law school. Tomorrow we begin selecting classes for fall of our third year, so today I grapple with whether to take tedious courses that may help me pass for the Bar exam, or invigorating courses and clinics that will help me stay motivated to finish law school and become a lawyer. Both goals are important, and my fall schedule will probably reflect a little of each one.

To mark the first days of spring, the daffodils bloom here in Williamsburg, even as frost continues to cover the grass each morning. I ran the annual Ali's Run 5K yesterday morning in crisp, cool air.

A hundred and eighty miles up the road in Washington, the president continues to grapple with the financial crisis. I'm as appalled by anyone by the AIG bonus fiasco, and the capitalist money-grubbing it stands for. President Obama certainly has his hands full. But this week, the First Lady has identified another critical cultural issue that deserves at least as much attention — food.

Michelle Obama has begun work on an organic vegetable garden on the South Lawn of the White House, citing several goals. The garden is meant to provide healthy food for her daughters, feed Washington's poor people, and to please an eager kitchen staff longing for fresh ingredients. More importantly, however, the garden addresses a national issue: our long overdue need to think about what we eat.

Michael Pollan, author of The Omnivore's Dilemma and a longtime advocate for changing the nation's food policies, first argued for a White House vegetable garden back in 1991. Instead of worshipping our chemically treated, unnatural lawns, he said, we should either let our yards return to their natural state, such as wetlands or meadows, or turn them into gardens and orchards. This helps the environment but just as important, it also helps our stomachs. We are a nation of obese people, and although we continue to experiment with diet and exercise fads, even cutting back on fat and red meat, the problem continues to get worse, not better.

Michelle Obama has put the focus back on the larger problem: we eat too much processed food. The prime culprits are partially hydrogenated soybean oil, a dangerous preservative found in everything from Oreos to peanut butter, and high fructose corn syrup, the primary sweetener in Coke and Pepsi. We can put the blame on at least four groups of people for getting us into the processed food diet. First, companies like Archer Daniels Midland (sorry, Cedar Rapids) have successfully lobbied the government for huge subsidies to prop up high fructose corn syrup production. They've also engaged in a shameless ad campaign. At one point, our consumption of high fructose corn syrup even passed our sugar consumption, though that trend has recently started to go the other direction. But ADM could only be successful with help from the second group: members of Congress and the USDA, which have only exacerbated the problem by granting the subsidies and failing to enact helpful regulations. Third, we can blame the food companies that make highly processed foods, but even they are starting to turn things around (in Canada, too). Some local governments and hospitals are doing their part as well. Finally, though, we can blame ourselves for buying and eating the junk. It's cheap and it's easy, but it only makes us fat.

The good news is that the solution is easy. We can do what millions of Americans do already: grow much of our own food, go to the grocery store more often for fresh ingredients, and toss all the processed foods from our cupboards. Thanks to Michelle Obama for drawing attention to food. That reminds me, I'm hungry.

Live-blog: W&M Law ACLU hosts defense attorney David Baugh

Today I'm live-blogging from Room 133 at the Marshall-Wythe School of Law. Our ACLU chapter is hosting David Baugh. Baugh recently left private practice to serve as the Richmond Capital Defender, working for the Virginia Indigent Defense Commission. While he was in private practice he often served as a cooperating attorney for the ACLU of Virginia. His most noteworthy case with the ACLU was when he represented the Imperial Wizard of the Ku Klux Klan on a First Amendment criminal case. (Baugh is African-American.) Baugh is the son of a Tuskeegee Airman, and has a wealth of stories.

1:02 p.m.—Our chapter president, Tom Fitzpatrick, has introduced Mr. Baugh.

1:03 p.m.—"It's hard to have faith." The hardest thing to do is to teach a child to float. If you can't float, you're not deep enough in the water. Baugh's lesson: You've got to have faith in the Constitution.

1:04 p.m.—When Madison wrote the Constitution, he didn't say that certain people have rights. Everybody has those rights. Freedom of Expression: If someone else doesn't have the right to free expression.

1:06 p.m.—It's possible to come out of law school, be $200,000 in debt, and never have studied the Bill of Rights! "The Bill of Rights is a brilliant document." Baugh says he has been a member of the ACLU since he got expelled from college. (He's wearing a red and gold ACLU pin on his lapel, where politicians tend to wear American flags.)

1:08 p.m.—"The Bill of Rights is brilliant. I think George W. Bush is an asshole and I wish he'd die. Do you know what I just said is illegal in 95% of the countries in this world?" Someone asks, "Even though he's not the president anymore? "You can say Obama's an asshole. It doesn't matter."

1:10 p.m.—"The only way to protect religion is to leave it alone. That's like Kung Fu crap. It's brilliant." We have the right to bear arms. The ACLU never seems to talk about that one. "I tell my students all the time: if Jews had weapons, there never would've been a Holocaust. If deer had guns, there would be no hunting season." The right of the people to bear arms is the right to rise up against the government.

1:12 p.m.—"If any of you thinks there's a superior race, spend an hour with a Klansman. Dumb as a rock."

1:14 p.m.—"I had no doubt in my mind that O.J. Simpson was guilty, that he did it. I also had no doubt in my mind that he shouldn't have been convicted." Baugh believes this because the prosecutor was biased, the judge wasn't very bright, and the trial was a circus.

1:15 p.m.—"Every time a lawyer tries a case and a defendant gets acquitted, the system gets a little stronger." A woman asked him last night: "David, don't you worry about those technicalities?" He replied, "Those 'technicalities' are the Bill of Rights!"

1:17 p.m.—"When I was studying the philosophy of law, I realized there are two forces at work in the criminal justice system. There is order, and there is freedom. ... Those two forces are constantly at war. Order has a lot of supporters. Freedom doesn't have a lot of supporters, so I chose to work on freedom." Then Baugh realized that there is a third force: Morality.

1:20 p.m.—Baugh enters discussion of Commonwealth v. Black, 538 U.S. 343 (2003), a First Amendment cross-burning case. He represented a KKK Grand Dragon. "Little did I know that when an African-American agrees to protect the First Amendment, all hell breaks loose," Baugh says. He says this gave him some stature with his kids, because the BBC started calling the house. "They realize you're not just the fat guy who cuts the grass anymore."

1:25 p.m.—Baugh's case was to attack the Virginia cross-burning statute as unconstitutional. At the Supreme Court arguments, Baugh says that Scalia said that burning a cross is like pointing a loaded gun, not speech. "And for the first time in ten years, Clarence Thomas asked a question. You could've heard a fly piss on cotton in that courtroom."

1:28 p.m.—On whether it was tough to defend a Klansman, Baugh says it's a resounding "no." He was defending the rules.

1:31 p.m.—"Nobody is so guilty of a crime that they shouldn't get a fair trial. Nobody is so guilty of a crime that the law can presume that they did it," Baugh said. A judge's job is not to make sure that the guilty get convicted and the innocent go free, but to follow the rules, he says.

1:38 p.m.—Baugh's discussing a case he argued in New York, the bombing of a U.S. Embassy. At trial, he said he told the jury that the issue was not whether the defendant should be executed, but whether they should kill him. The judge stopped him. "Don't say 'kill,' say 'execute.'" Why's that, Baugh asks? Because killing is illegal, and execution is legal. "Well, you know what? No law was ever broken in the Holocaust."

1:41 p.m.—"The ACLU is despised by most Americans because we advocate technicalities."

1:45 p.m.—Baugh was a prosecutor for five years, and in private practice as a defense attorney for 30 years. Now he's a capital defender. "I absolutely love going to work in the morning. I have a purpose."

1:48 p.m.—"It's a wonderful feeling to have a cause," Baugh says. "Find a purpose."