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Gay marriage litigation continues throughout the several states. Recently a trial court in Iowa struck down Iowa’s limitation of marriage to opposite-gender couples, whereas the Maryland Court of Appeals upheld Maryland’s similar limitation. This article, the fourth in a series, will briefly analyze these cases.

I. Iowa

In Varnum v. Brien, the Iowa District Court for Polk County ruled on summary judgment that Iowa Code § 595.2(1) violated the plaintiffs’ due process and equal protection rights.1, 2 In Iowa, the party moving for summary judgment bears the initial burden of showing that no genuine issue of material fact exists.3 The non-moving party may only resist the motion by “set[ting] forth specific facts constituting competent evidence to support a prima facie claim.”4 In other words, the nonmoving party “must show there is a genuine issue of fact” if the moving party adequately supports its summary judgment motion.5 Iowa Code § 595.2(1) provides that “[o]nly a marriage between a male and a female is valid.” Judge Robert Hanson enjoined Polk County from refusing to issue marriage licenses to same-sex couples.6, 7 Four hours later, Judge Hanson stayed his ruling, but one same-sex marriage license was issued in the interim.8 As of this writing, the case is scheduled to be appealed to the Iowa Supreme Court, which may either hear the case directly or send it to the Iowa Court of Appeals.

The plaintiffs were twelve lesbians and gay men who comprised six same-sex couples, two of which have minor children. The defendant was Timothy Brien in his official capacity as the Recorder for Polk County, Iowa. The court noted that the state failed to provide sufficient facts; in stark contrast, the plaintiffs provided strong factual support for their case.9 For example, the court pointed out that the state failed to provide sufficient facts supporting the state’s basic interest in providing a married man and married woman as the optimal environment for raising children.10  Even worse, the state simply denied the plaintiffs’ facts “for lack of knowledge” with insufficient reference to the record, rather than putting forth the state’s own facts to sufficiently challenge the plaintiffs’ facts such that the court could find a genuine issue of material fact.11 The state’s failure to submit facts was so dire that the court accepted as undisputed “all of the facts contained in the ‘Statement of Material Facts in Support of All Plaintiff’s Motion for Summary Judgment.’”12

A. Due Process

The state’s failure to provide sufficient facts led to the court ruling against it and finding that § 595.2(1) violated the plaintiff s’ due process rights. The court rejected the state’s rationales behind prohibiting same-sex marriage, and noted that “the Defendant makes no argument that promoting procreation, child rearing by a mother and father in a marriage relationship, promoting stability in opposite sex relationships, promoting the concept of traditional marriage or conservation of state and private resources are compelling state interests, despite the fact that it his burden to do so.”13 The court did this even though Iowa’s rationales were the same as or similar to the rationales of other states which recently had their bans on same-sex marriage upheld. The Varnum court did not cite these other states. The court further noted that Iowa failed to show that § 595.2(1)’s prohibition of same-sex marriage advanced any of those goals.14

The Varnum court noted that the United States and Iowa Supreme Courts both found that marriage is a fundamental right.15 The court stated that “Due Process rights are fluid, and that such protections ‘should not ultimately hinge upon whether the right sought to be recognized has been historically afforded. Our constitution is not merely tied to tradition, but recognizes the changing nature of society.’”16 The court asserted that, “[a]s the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”17 As a finding of fact, the court found that “[m]arriage has evolved over time, in legislatures and courts, to meet the changing needs of American society and to embody fuller notions of consent and personal choice…. Marriage in the United States is virtually unrecognizable from its earlier common law counterpart, having undergone radical, unthinkable changes in laws....”18 The court found that any state law that “significantly interferes” with the right to marry is subject to strict scrutiny, stating that § 592(1) “constitutes the most intrusive means of the State to regulate marriage.”19 The court stated that the state failed to sufficiently explain how § 595.2(1) was either narrowly tailored or the only means available to protect and/or promote the state’s compelling interests. The court then summarily concluded that same-sex marriage is a fundamental right, without analyzing the difference, if any, between marriage as a fundamental right and same-sex marriage as a fundamental right. The court provided some indication about its self-perceived role to “preserv[e] civil rights” with comparisons to Loving v. Virginia,20 where the U.S. Supreme Court struck down Virginia’s anti-miscegenation law prohibiting marriage between different races.21 

Interestingly, the Varnum court held that § 595.2(1) is “extremely overinclusive” because it prevents a distinct group from marrying, and “extremely underinclusive” because it “fail[s] to regulate at all how heterosexuals enter into marriage and procreative relationships.”22

The court rejected the plaintiffs’ claim that the statute violates the rights of privacy and familial association contained in the Iowa Constitution, stating, however, that “the Court is sympathetic to the children’s claims of stigma and hardship created by the statutory scheme prohibiting their same-sex parents from marrying in Iowa.”23

B. Equal Protection

Article I, § 6 of the Iowa Constitution states that “[a]ll laws of a general nature shall have a uniform operation; the General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.”24 The Varnum court employed intermediate scrutiny in analyzing the plaintiffs’ equal protection claim because it was the “Plaintiffs’ own sex” that precludes them from marriage.25 The court rejected the defendant’s argument that § 595.2(1) is not gender-based because it applies equally to men and women, likening it to the statute struck down in Loving, which Virginia argued was not race-based because it applied equally to both blacks and whites.26 The court instead concluded that the statute is not substantially related to an important state interest because the defendant failed to prove that any of the rationales previously listed and analyzed under due process are important state interests, or that preclusion of same-sex marriage would advance those goals.27 Therefore, the court held that the statute also violated equal protection under the Iowa Constitution.28

The court rejected the plaintiffs’ argument that § 595.2(1) impermissibly classifies children raised by same-sex couples. Again, the court stated that it was “particularly sympathetic,” but found no basis for such a ruling.29

C. Rational Basis

The Varnum court further held that § 595.2(1) failed a rational basis test.30 A statute satisfies rational basis scrutiny if it serves a legitimate governmental interest, and the means employed by the statute bear a rational relationship to the government’s interest.31 The court stated that it was willing to view as legitimate state rationales promoting procreation, promoting child rearing by a father and a mother in a marriage relationship, promoting stability in opposite-sex relationships where children may be born (which the court referred to, collectively, as “responsible procreation”), and conserving state and private resources. The court, however, flatly rejected the state’s fifth rationale, “promoting the concept of fundamental marriage or the integrity of traditional marriage.” The court, expressing that it was flouting Iowa’s legislative and political intent, explained that, despite a “governing majority” wishing to limit marriage to heterosexuals, neither history nor tradition was sufficient to uphold the law. The court cited Lawrence v. Texas,32 and Callendar v. Skiles,33 for the proposition that constitutional rights change along with society. The court also strongly hinted that § 595.2(1) was passed solely out of a “bare desire” to harm gays.

The court also rejected the “responsible procreation” rationales, stating that (1) the state failed to submit evidence showing how excluding same-sex marriage promotes responsible procreation; (2) the state actually admitted many of the plaintiffs’ factual assertions, including the plaintiffs’ assertion that same-sex couples are purportedly equal to opposite-sex couples with respect to child-rearing; (3) “the traditional make-up of the family has changed;” and (4) the state allows marriage for couples who are either unable or unwanting to have children. Lastly, the court rejected the state’s conservation of resources argument because “Defendant has not explained this purported purpose at all and has cited no authorities or evidence supporting it.”34 Once again, the state’s reliance on merely denying the plaintiff’s facts, failure to present its own facts, and accompanying failure to show genuine issues of material facts led to the court ruling in favor of the plaintiffs.

D. Conclusion

Judge Hanson concluded that § 595.2(1) “violates Plaintiffs’ due process and equal protection rights” and “must be nullified, severed and stricken... so as to permit same-sex couples to enter into a civil marriage.”35 It appears that the two main factors in his decision were (1) the state’s severe failure to present sufficient facts to support its case and to present a genuine issue of material fact; and (2) Judge Hanson’s view that due process rights, marriage, and the Iowa Constitution should not be bound by historical tradition and must change with the times. It does not appear that Judge Hanson considered or found persuasive the decisions of other state courts which analyzed and upheld similar statutes limiting marriage to one man and one woman. The defendant O’Brien, vis à vis State of Iowa (Polk County), is appealing under docket number 07-1499.36

II. Maryland

In Conaway v. Deane, the Maryland Court of Appeals upheld the state’s limitation of marriage to opposite-gender couples.37 Maryland’s 1973 marriage statute, Family Law Code § 2-201, provides that “[o]nly a marriage between a man and a woman is valid in this State.”38 In 2004, the American Civil Liberties Union (ACLU), on behalf of nineteen gay men and lesbians, sued after they were denied marriage licenses in Maryland. The plaintiffs claimed that the Maryland statute was unconstitutional under the Maryland Declaration of Rights on the grounds that the statute (1) discriminates based on gender, (2) discriminates based on sexual orientation in violation of equal protection, and (3) burdens the exercise of the same-sex couples’ fundamental rights to marry in violation of due process. The trial judge in Baltimore, Judge M. Brooke Murdock, found in favor of the plaintiffs, relying heavily on Loving v. Virginia. On September 18, 2007, the Maryland Court of Appeals, with Justice Glenn Harrell writing for the 4-3 majority, issued its opinion declaring § 2-201 constitutional.39

A. Standard of Review

The court held that rational basis review applied to the marriage statute because it did not discriminate on the basis of gender, implicate a suspect or quasi-suspect class, or burden a fundamental right. Under rational basis review, “the classification will pass constitutional muster so long as it is ‘rationally related to a legitimate governmental interest.’”40 Additionally, the court noted that rational basis review carries a strong presumption of constitutionality.

B. No Gender-Based Discrimination

The court held that Maryland’s Equal Rights Amendment was intended and had been interpreted to combat discrimination between men and women as classes. The court stated, “[it] stretch[es] the concept of gender discrimination to assert that [the marriage statute] applies to treatment of same-sex couples differently from opposite-sex couples.”41 The court held that § 2-201 did not discriminate on the basis of gender because it equally prohibits the same conduct for each class. Additionally, the court found most persuasive that many other jurisdictions had rejected the argument that statutes limiting marriage to heterosexual couples discriminate impermissibly based on gender.

The court rejected the plaintiffs-appellees’ argument that § 2-201 should be examined as to how it affects each individual person seeking to marry, rather than as discrete classes suffering from disparate treatment.42 The court stated that “a statute does not become unconstitutional simply because, in some manner, it makes reference to race or sex.” The court, however, acknowledged that equal application of a statute does not automatically mean that the statute does not violate the Equal Protection Clause of the Constitution or Maryland Declaration of Rights. The court distinguished Loving, holding that the Virginia statute’s primary purpose was to maintain “white supremacy” and subordinate non-whites as a class, regardless of its equal application to whites and nonwhites. As evidence of this racist intent, the court noted that the Virginia statute prohibited whites from marrying non-whites, but did not prohibit other racial groups from marrying amongst each other. The court held that there was no showing that Maryland’s marriage statute intended to subordinate men or women as a class. The court held that, absent such a showing, the Maryland Equal Rights Amendment “does not mandate the state recognize same-sex marriage based on the analogy to Loving.”43

C. Equal Protection

The court held that a statute which discriminates on the basis of sexual orientation does not trigger strict or heightened scrutiny because sexual orientation is neither a suspect nor quasi-suspect class. The court stated that while homosexuals have suffered discrimination, sexual orientation does not meet the criteria for determining a new suspect class because homosexuals are not a sufficiently politically powerless group entitled to “extraordinary protection from the majoritarian political process” and that there is no generally accepted conclusion that homosexuality is an immutable characteristic.44 The court cited evidence of the group’s political power by showing how legislative successes in recent years have granted protections for homosexuals.45

The court also found persuasive the numerous cases that have addressed this issue and found that homosexuality is not a suspect class. It also noted that the U.S. Supreme Court in Lawrence v. Texas46 struck down a law aimed at homosexuals under rational basis review, not strict scrutiny.

D. Fundamental Right under Due Process

While acknowledging that the right to marry is a fundamental liberty protected by the Constitution, the court held that the right to marry another person of the same sex is not a fundamental right. Judge Harrell noted the importance of exercising the utmost care in asserting a right or liberty interest, because it “place[s] the matter outside the arena of public debate and legislative action.”47 The court then held, “[w]ith these principles in mind, and in light of Maryland’s history of limiting marriage to those unions between members of the opposite sex, coupled with the policy choices of nearly every other state in the Nation, we do not find that same-sex marriage is so deeply rooted in this State or country as a whole that it should be regarded at this time as a fundamental right.”48

The court agreed that cases such as Loving v. Virginia established that the right to marry is fundamental. However, the court found that Loving and other similar cases did not extend this fundamental right to same-sex marriage. Judge Harrell declared that Loving and other similar cases found that the right to marriage is fundamental “due to the male-female nature of the relationship and/or the attendant link to fostering procreation of our species.”49

Loving held the right to marriage was guaranteed to interracial couples, despite the long history of prohibition on interracial marriage. The court held that “[t]he basis for the Supreme Court’s decision as to the interracial couples’ due process challenge was that ‘[m]arriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.’”50 Thus, the court found that Loving's conclusion that the right to marriage is fundamental “was anchored to the concept of marriage as a union involving persons of the opposite sex.”51 Therefore, the court held that Loving was not controlling, and that there was no fundamental right to same-sex marriage.

E. Maryland’s Marriage Statute Passes Rational Review

The court held that “the State has a legitimate interest in encouraging marriage between two members of the opposite sex, [because it is] a union that is uniquely capable of producing off spring within the marital unit.”52 The court recognized that, despite the “gradual erosion” in the traditional family structure, it still had to grant deference to the legislature.53 Thus, the state’s interest in fostering procreation was a sufficient rational basis to uphold the marriage statute. The court reiterated that “marriage enjoys its fundamental status due, in large part, to its link to procreation.”54 Additionally, the court recognized that the vast majority of courts which had addressed this issue made similar findings.

F. Dissents

Justice Raker’s dissent supported adopting a decision similar to the Supreme Court of New Jersey in Lewis v. Harris.55 Justice Raker opined that there is no fundamental right to same-sex marriage, but argued that committed same-sex couples have a constitutional right to the benefits and privileges afforded married heterosexual couples.

Justice Battaglia’s dissent argued that the marriage statute should not be reviewed under rational basis review because Maryland law applies strict scrutiny to laws that draw classifications based on sex. Justice Battaglia argued that the case should be remanded for an evidentiary hearing to determine if the state’s asserted interest passes strict scrutiny.

Chief Justice Bell argued that the fundamental right at issue was improperly characterized as the right to same-sex marriage, when it should have been the right to marriage. He concluded that the right to marry is fundamental, whether it be a heterosexual couple or same-sex couple.

G. Conclusion

Contrary to other courts’ decisions upholding statutes limiting marriage to opposite-gender couples, the Conaway majority made no special efforts to sound apologetic for its decision. The court passed no judgment on the soundness of the state’s interest in supporting only opposite-sex marriage.56 Nevertheless, the court clearly noted throughout the opinion that its findings were aligned with the majority of state courts throughout the country. In its final sentence, however, the court left the final decision up to the legislature, stating that:

In declaring that the State’s legitimate interests in fostering procreation and encouraging the traditional family structure in which children are born are related reasonably to the means employed by Family Law § 2201, our opinion should by no means be read to imply that the General Assembly may not grant and recognize for homosexual persons civil unions or the right to marry a person of the same sex.57, 58

*John Shu wishes to recognize and thank Mr. Ryan Darby and Ms. Carrie Law of Chapman Law School for their hard work and invaluable assistance with this article.

 

Endnotes

1 Iowa Code § 595.2(1).

2 Varnum v. Brien, 2007 WL 2468667 No. CV5965 (Iowa Dist. Ct. Polk County, Aug. 30, 2007).

3 Id. at *2, citing Schlueter v. Grinnell Mut. Reins. Co., 553 N.W.2d 614, 615 (Iowa Ct. App. 1996).

4 Id., quoting Hoefer v. Wisc. Educ. Ass’n Ins. Trust, 470 N.W.2d 336, 339 (Iowa 1991).

5 Id., quoting Colonial Baking Co. of Des Moines v. Dowie, 330 N.W.2d 279, 282 (Iowa 1983).

6 Id. at *37.

7 Governor Tom Vilsack (D) appointed Judge Hanson to the bench in 2003. Judge Hanson received his undergraduate degree from Stanford University in 1978 and his law degree from the University of Iowa in 1981. Prior to his appointment, he clerked for the Iowa Supreme Court and practiced law privately.

8 Monica Davey, Iowa Permits Same-Sex Marriage, for 4 Hours, Anyway, N.Y. Times, Sept. 1, 2007, available at http://www.nytimes.com/2007/09/01/us/01iowa.html.

9 There exists some controversy as to whether Judge Hanson was not already leaning towards ruling for the plaintiffs. For example, Judge Hanson stated, in his finding of fact, that the Iowa statute was “passed in response to marriage litigation brought by same-sex couples in Hawaii in order to ensure that lesbian and gay people are treated unequally to everyone else in Iowa;” that “[t]hrough the marriage exclusion, the State devalues and de-legitimizes [gay relationships] and perpetuates the stigma historically attached to homosexuality;” and equated homosexuality with gender and race. Varnum, supra, at *14.

10 Id. at *27.

11 Id. at *8.

12 Id.

13 Id. at *27.

14 Id. at *27-28.

15 Loving v. Virginia, 388 U.S. 1 (1967); Sioux City Police Officers’ Ass’n v. City of Sioux City, 495 N.W.2d 687, 695 (Iowa 1993).

16 Varnum at 27, citing Callender v. Skiles, 591 N.W.2d 182, 190 (Iowa 1999).

17 Id. at *31.

18 Id. at *23.

19 Sioux City, 495 N.W.2d at 696.

20 388 U.S. 1 (1967).

21 Varnum, supra, *27.

22 Id. at *27. This finding is somewhat odd because presumably Iowa already regulates heterosexual marriages. For example, Iowa’s minimum age of consent to marry is 18, with those 16 or 17 needing parental consent.

23 Id. at *28.

24 Id. at *28, citing Iowa Const. Art. I § 8.

25 Id.

26 Id. at *29, citing Loving, 388 U.S. at 87.

27 Id.

28 Id.

29 Id. at *29-30.

30 Id. at *30.

31 Id., citing Glowacki v. State Bd. of Med. Examiners, 501 N.W.2d 539, 541 (Iowa 1993).

32 539 U.S. 558, 577-78 (2003).

33 591 N.W.2d 182, 190 (Iowa 1999).

34 Id. at *31.

35 Id. at *36-37.

36 Iowa judicial candidates are selected by a commission, and the governor appoints judges from that list. Judges face retention elections after one year in office “and then at regular intervals.” Only four judges have not been retained since Iowa adopted this system.

37 2007 Md. LEXIS 575 (Md. 2007).

38 Md. Family Law Code Ann. § 2-201.

39 Justice Harrell wrote the majority opinion, with Justice Wilner, Justice Cathell, and Justice Greene joining the opinion. Justice Raker concurred in part and dissented in part. Chief Justice Bell and Justice Battaglia dissented.

40 Conaway v. Deane, Op. at 45 (Md. 2007) (citations omitted).

41 Id. at 34 (citations omitted).

42 Th e plaintiffs-appellee’s argument was heavily based on Loving v. Virginia, 388 U.S. 1 (1967).

43 Id. at 41 (citations omitted).

44 Id. at 60, 70 (citations omitted).

45 Id. at 60, 61 (citations omitted).

46 539 U.S. 558 (2003).

47 Id. at 95 (citations omitted).

48 Id. at 96.

49 Conaway v. Deane, Op. at 77. 

50 Id. at 77 (emphasis in original).

51 Id. at 98, citing Standhardt v. Super. Ct. of Ariz., 77 P.3d 451, 458 (Ariz. Ct. App. 2003).

52 Conaway v. Deane, Op. at 98.

53 Id. at 103–106 (citations omitted).

54 Id. at 99 (citations omitted).

55 Lewis v. Harris, 188 N.J 415 (N.J 2006) (laws banning same-sex marriage violate the equal protection guarantees of the New Jersey Constitution; and legislature must amend marriage statutes to include same-sex couples or create a parallel statutory structure which will provide the same rights of marriage).

56 Two of the judges in the majority, Justices Wilner and Cathell, are now retired but participated in the decision because they participated in the hearing and conference of the case. The remaining justices are serving ten-year terms, with Justice Harrell facing reelection in 2010, and Justices Greene and Raker facing re-election in 2016.

57 Conaway v. Deane, Op. at 109.

58 Immediately after the opinion issued, certain Democrat members of Maryland’s Democrat-controlled legislature stated that they would push for legislation recognizing same-sex marriage, while others stated they would push for civil unions. Certain conservative members of the legislature stated that they would push for a constitutional amendment banning same-sex marriage. 

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