Monday, September 3, 2007

DM Register: Polk Ruling Correct: Law Unconstitutional

Well, it is no surprise that the Des Moines Register came down on the side of Judge Hanson.
If Supreme Court justices are looking for a way to preserve the status quo, Polk County District Judge Robert B. Hanson's decision will make the high court's work difficult. Hanson's 63-page ruling, released Thursday, is carefully crafted and argued, with a thorough analysis of federal and state constitutional law. He concludes that the law violates the equal-protection and due-process provisions of the Iowa and U.S. constitutions.

All laws must be applied to every person in the same way, and no person may be deprived of fundamental rights without due process of law. The courts apply a strict legal test in assessing whether state laws that implicate fundamental rights meet those constitutional standards, and Iowa's same-sex marriage ban fails the test.
First I would argue that the ruling was not carefully crafted and argued, but rather biased and knee-jerk. Reading through the judge's opinion you can clearly see that he had his mind made up before even hearing arguments. Also at the crux of his ruling is a reference to a judicial ruling against a Virginia law that had outlawed inter-racial marriage. No one would argue against the unconstitutionality of that law. It violates the civil rights of inter-racial couples who would like to marry. That law being struck down does not degrade the institution of marriage. A ruling that allows same gender couples to marry does. Race is not fundamental to marriage, sex is. This is simply not a relevant comparison.

Which brings me to my second point... the declaration that homosexuals are being denied their constitutional rights is false. They have the right anywhere in the United States to marry, just not somebody of the same sex. Greg Koukl of Stand to Reason offers an illustration of this in an article written for called "Same Sex Marriage - Challenges & Responses" on 2/11/07.
Let me illustrate. Smith and Jones both qualify to vote in America where they are citizens. Neither is allowed to vote in France. Jones, however, has no interest in U.S. politics; he’s partial to European concerns. Would Jones have a case if he complained, “Smith gets to vote [in California], but I don‚t get to vote [in France]. That‚s unequal protection under the law. He has a right I don’t have.” No, both have the same rights and the same restrictions. There is no legal inequality, only an inequality of desire, but that is not the state’s concern.
The marriage licensing law applies to each citizen in the same way; everyone is treated exactly alike. Homosexuals want the right to do something no one, straight or gay, has the right to do: wed someone of the same sex. Denying them that right is not a violation of the equal protection clause.
The second complaint that is often heard is that homosexual couples do not have the same legal protections as married couples do. This is a more substantial complain which Koukl also addresses:

It’s true that homosexual couples do not have the same legal benefits as married heterosexuals regarding taxation, family leave, health care, hospital visitation, inheritance, etc. However, no other non-marital relationships between individuals – non-gay brothers, a pair of spinsters, college roommates, fraternity brothers – share those benefits, either. Why should they?
If homosexual couples face “unequal protection” in this area, so does every other pair of unmarried citizens who have deep, loving commitments to each other. Why should gays get preferential treatment just because they are sexually involved?
The government gives special benefits to marriages and not to others for good reason. It’s not because they involve long-term, loving, committed relationships. Many others qualify there. It’s because they involve children. Inheritance rights flow naturally to progeny. Tax relief for families eases the financial burden children make on paychecks. Insurance policies reflect the unique relationship between a wage earner and his or her dependents (if Mom stays home to care for kids, she ˆ and they ˆ are still covered).
These circumstances, inherent to families, simply are not intrinsic to other relationships, as a rule, including homosexual ones. There is no obligation for government to give every human coupling the same entitlements simply to “stabilize” the relationship. The unique benefits of marriage fit its unique purpose. Marriage is not meant to be a shortcut to group insurance rates or tax relief. It’s meant to build families.
The Register's opinion is also reflective of their bias. Let's remember that they are not an authority on constitutional law as they position themselves to be. This is a flawed ruling, and one I hope is overturned by the Iowa Supreme Court.

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