Polk County Judge Overturns Gay Marriage Ban

I blogged for a while tonight about this story over at Iowa Independent: Iowa’s ban on same-sex marriage was overturned Thursday in a Polk County courtroom. It was a surprise to many, but it was greeted with excitement among fans of civil rights all the same. Even the Republicans, who were criticizing the decision publicly, were likely smiling to themselves because of possible electoral implications.

Three things strike me about the opinion:

1. Despite this court’s admittedly lower stature, the opinion reads like a US Supreme Court decision in many ways. It is every bit as lofty and sweeping as the Lawrence v. Texas (2003) decision. It isn’t every day that you read a lower court ruling and come away with that feeling.
2. It is persuasive. The facts are laid out, and the judge reviews each relevant fact and makes a determination on it before moving on to the next level of abstraction, building logically into a conclusion. There is not much technical or statutory language that would be beyond the average person’s comprehension.
3. He cites conservative US Supreme Court Justice Antonin Scalia a fair amount to prove essentially the opposite of what Scalia meant to argue in his dissent in Lawrence. Notable sentence from Scalia’s dissent that Hanson did not quote: the Lawrence opinion “is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobium that has traditionally attached to homosexual conduct.”

And, in case you were wondering where Sandra Day O’Connor would come down on this, here is what she wrote in her concurring opinion in Lawrence, which overturned a criminal law banning homosexual sex but intentionally stayed away from gay marriage (emphasis added):

That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review.  Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage.  Unlike the moral disapproval of same-sex relations–the asserted state interest in this case–other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.