The Federalist Blog

Reading through the unanimous, 69-page decision of the Iowa Supreme Court striking down the state’s 10-year-old ban on same-sex marriage, reads more as an advocacy for same-sex marriage than constitutional fact finding. While I do not have much time to Blog on this case now, I will quickly point out deliberate and obvious factual errors the court used to invalidate Iowa’s same-sex ban.

The court declares the “primary constitutional principle at the heart of this case is the doctrine of equal protection.” The court assumes this doctrine of equal protection is found under Section VI of the Iowa Constitution that reads: “All 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.”

The constitutional provision that all laws shall be general and of uniform operation does not require them to operate uniformly on all the people of the State, nor, when relating to cities, on all the cities of the State, but if a law is made to operate upon a particular condition as to persons or property, and is operative whenever and wherever the same conditions exist, affixing the same consequences, it is a general law in its operation even though it only operates in one of the conditions or classes specified. State ex rel. West v. Des Moines, 31 L.R.A. 186, 96 Iowa, 521. 65 N.W. 818.

The second section of the clause that reads, “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,“ has a specific and well understood meaning and was borrowed from the Indiana State Constitution of 1851, which had adopted the language with the following understanding during the State constitutional convention:

The section which declares that the Legislature shall not bestow any title of nobility, nor confer hereditary distinctions, nor grant extraordinary privileges, was read a second time.

Mr. READ of Monroe moved to amend by striking out the words, “grant extraordinary privileges,” and inserting the following: “Nor grant to any citizen or class of citizens privileges and immunities which, upon the same terms, shall not belong equally to all citizens.”

Mr. READ said that his object in offering this amendment was to render the section more distinct and definite in its signification. It was not designed to Interfere with the rights of corporations, and had no reference whatever to a State Bank, nor would it affect any of the institutions of the State. He was convinced that such a principle as that embraced in the amendment should find a place in the Constitution. He had consulted a number of legal gentlemen on the subject, and they all agreed it was a sound principle. It was merely intended to prevent that which had been much complained of in this country, and which might be called class legislation.

Class legislation is one of those terms that today can generally mean whatever a person presents it to mean, but really never had anything to do with discrimination based on race, sex, age or religion. Essentially it meant giving a privilege to one or a few named individuals or companies while ignoring everyone else. It was namely in response to the outcry of granting the right of eminent domain to railroad companies. The granting of a exclusive liquor license only to a certain wealthy liquor magnet and no one else would also be considered class legislation because it excludes everyone else.

On the other hand, requiring $50,000 or more land ownership as a condition for granting a liquor license would not be class legislation because it is merely a condition and not a privilege being exclusively granted to one individual or company. Justice John Pettit, a delegate to the convention at the time, explained the proposed Indiana provision this way during the constitutional convention of 1851:

This section applies to the future action of the Legislature. It declares that the Legislature shall not hereafter place one class of citizens upon a pedestal of fame and wealth, and trample another in the dust of ignominy and poverty. That is what this section provides for. … Well, sir, the section before us provides that no rights shall be given to one class of the community that are not given, upon the same terms, the same conditions, and under the same circumstances, to all.

Same purpose was sought for the language during the Iowa constitutional convention of 1857. Future speaker of the Iowa House, John Edwards, who advocated for the insertion of the words from the Indiana Constitution, explained the meaning of the words this way during the Iowa convention:

[I]ts object is contained in a nut shell, and is merely this: It is to prevent the General Assembly from granting any privileges or immunities to any citizen or class of citizens that it would not be willing to grant to any other citizen or class of citizens upon the same terms. It is to prevent the Legislature from granting exclusive privileges to any class of citizens.

George Ells provided for the benefit of members of the Iowa Convention Webster’s difinition that “embraces all we claim for the word ‘privilege'”:

A particular and peculiar benefit or advantage enjoyed by a person, company or society, beyond the common advantages of other citizens. A privilege may be a particular right granted by law or held by custom, or it may be an exemption from some burden to which others are subject. The nobles of Great Britain have the privilege of being triable by their peers only. Members of Parliament and of our Legislatures have the privilege of exemption from arrests in certain cases. The powers of a banking company are privileges granted by the Legislature.

During the 1866 Nevada Constitutional Convention, identical language was proposed to be inserted into the Constitution that would have the following effect:

Mr. Nourse: I understand that the object of the section is to prevent such disgraceful proceedings as occurred in the last Legislature. … a prohibition of special legislation–that you shall not grant to John Smith and his associates, a charter to build a road here or there, but you may pass a general act, providing that persons who wish, may incorporate so and so, and thereupon, if you choose, may have the right of way across private property–may have the power to have it condemned to their own use by such course as may be prescribed by the Legislature; leaving the whole thing open to public competition, and not tied up to any right given specially, and irrevocably, to any favored corporation, like, for example, the Camden and Amboy Railroad in New Jersey.

In Strange v. Board, etc., 173 Ind. 640, the Indiana Supreme Court confirmed the above:

As we have shown, there may be classifications, and rights may be conferred upon some classes and not upon others. A familiar example is the conferring upon corporations and upon individuals, the right of eminent domain, and all that is required is that the privileges or rights conferred or liabilities imposed shall be the same to all who fall within the same class or are similarly situated, and that is an express recognition of the clause of our own Constitution (Section 23 which is identical to Iowa’s Section 6).

The Indiana Supreme Court in Morrison v. Sadler, 821 N.E.2d 15 (Ind. App. 2005) has already tackled the same issues (DOMA) as presented before the Iowa Supreme Court under identical constitutional language and held limiting marriage to opposite-sex couples does not violate the State Equal Privileges and Immunities Clause. The Indiana appellate court also pointed out that there “is binding United States Supreme Court precedent indicating that state bans on same-sex marriage do not violate the United States Constitution.”

Thomas Cooley says: “Many states prohibit the intermarriage of white persons and negroes; and since the fourteenth amendment this regulation has been contested as the offspring of race prejudice, as establishing an unreasonable discrimination, and as depriving one class of the equal protection of the laws. Strictly, however, the regulation discriminates no more against one race than against another; it merely forbids marriage between the two. Nor can it be said to so narrow the privilege of marriage as practically to impede and prevent it. Race prejudice, no doubt, has had something to do with establishing this law, but it cannot be said to be so entirely without reason in its support as to be purely arbitrary. The general current of judicial decision is, that it deprives a citizen of nothing that he can claim as a legal right, privilege or exemption.”

The court demonstrated their incompetence in interpreting constitutional law when they wrote: “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.‘” Would disallowing marriage to “one man and one woman,” who are closely related also render marriage “no right at all”? Put a different way, would marriage be “no right at all” if closely related (brother and sister) gay or lesbian couples were disallowed by law?

If the answer is no (and this is the well-established answer), then neither can disallowing marriage between the same sexes would have no material effect on any right by law to marriage between opposite-sex partners. The court is simply grasping at straws here.

CONCLUSION

Why did I devote attention to the debates of both the Indiana and Iowa constitutional conventions? Because the Iowa Supreme Court uses textual and historical arguments when interpreting the Iowa Constitution. The court says the purpose of any constitutional inquiry is “to ascertain the intent of the framers.“ Redmond v. Ray, 268 N.W.2d 849, 853 (Iowa 1978).

The court relies on plain text that “give[s] the words used by the framers their natural and commonly understood meaning.” Howard v. Schildberg Constr. Co., 528 N.W.2d 550, 553 (Iowa 1995). The court will “also examine the constitutional history and consider ‘the object to be attained or the evil to be remedied as disclosed by circumstances at the time of adoption.'” Id.

When the constitutionality of a statute is merely doubtful, the Iowa Supreme Court will not interfere, as it must be shown that legislative enactments clearly, palpably and without doubt infringe upon constitutional rights before an attack will be upheld. State v. Jaeger, 249 NW2d 688 (Iowa, 1977).

Therefore, Iowa laws of marriage are neither class legislation nor does the law grant exclusive privileges or immunities to any one class at the exclusion of all other classes of citizens who meet the conditions of law for entering into marriage. Likewise, denial of SSM also operates equally on all couples who meet the condition of being same-sex and places no new burdens or special obligations upon them.

And finally: “If all laws were held unconstitutional because they did not embrace all persons few would stand the test.” City of Clinton v. Wilson, 257 Ill. 580; Hawthorn v. People, 109 id. 302.

UPDATE: I found some time today to update this on my way out the door, and also removed a few lines that could be misunderstood.

Related: Historical Meaning Behind ‘Equal Protection of the Laws’