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The injustice of Iowa's ruling on gay marriage

Its central focus on emotions erodes moral principles and law.

By Matthew J. Franck / April 10, 2009

Princeton, N.J.

When the Iowa Supreme Court proclaimed last Friday that gays have a right to marry, it insisted that its groundbreaking decision rested squarely on the state constitution's equal protection clause.

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In reality, the court's bland overturning of foundational moral principles and many centuries of civilization shows what happens when judicial arrogance becomes second nature: It transforms into smug self-deception.

By allowing feelings and desire to replace moral reasoning – or at least a fair-minded reading of the constitution – as the basis for judgment of lawful public morality, the Iowa court, like American judicial power more broadly, has burst free of all constraints and is now in the grip of a banal routinization of tyranny.

"Tyranny" is a strong word, but consider:

•In the 69-page ruling, the actual words of the Iowa constitution receive no real analysis.

•The court rejected any argument for the natural family as the best setting for child-rearing as a mere "stereotype" – and this in a dismissive footnote, no less.

•The judges essentially said only they, not democratic majorities, could decide "the standards of each generation," which the US Supreme Court (wrongly) said in 2003 are the touchstone for understanding what the Constitution says about equality.

Regardless of where you stand on gay marriage, at least Vermont decided the issue this week the right way: democratically. But even in that case, the state's choice came only after a decade of civil unions that had been forced on Vermonters by their supreme court.

The Iowa court put the burden of justification on the state: It had to show good reasons for excluding gays from marrying. That maneuver masked the court's weak argument for same-sex marriage, which boils down to this: Because some persons are "sexually and romantically attracted to members of their own sex," and because some of those persons have entered into "committed and loving relationships" with each other, they are entitled to "the personal and public affirmation that accompanies marriage."

From this vantage point, the feelings individuals have for one another are the authoritative wellspring of moral principle. Emotion and desire are certainly important, but without more, they are a treacherous foundation for law and public policy.

Marriage and family are a moral institution – the teacher of right conduct between the sexes, the school of morality for the young, the founding scene of our moral obligations, the refuge from a wider world where respect for those obligations is a much chancier proposition.

These may sound like lofty ideals often unrealized, but that is both the point and beside the point. Society has a profound interest in encouraging the successful formation of marriages and families that point by their nature toward the achievement of these ideals.

It is essential that public policy on marriage turn from love, and from lovers' felt need for "affirmation," to consider what reasons can be given for this or that way of arranging the family that makes a claim on our attention.

Are all "relationships" created equal? Are all of them equally conducive to human flourishing and the betterment of successive generations? How many men and/or women does it take to fulfill marriage's vital functions? Are children best prepared for healthy, responsible adult lives with both a mother and a father?

The laws of marriage and family, of divorce and custody, are efforts to address such questions rationally, if necessarily imperfectly, with a priority placed on optimizing the moral health of each party. In the nature of things, someone's preferred notion of a "relationship" that needs "affirming" would seem to be peripheral at best.

To the Iowa court, it was apparently central. When desire becomes the foundation for a right, beware. Nothing in what passes for reasoning in Justice Michael Cady's opinion can stand against the next claimant – perhaps the polygamist – who presents himself as needing government affirmation of his consensual relationships. This is not a slippery slope; it is a levee breaking in a spring flood.