Yeah, the headline needs work. What can I say? Some are winners, some are losers.

Getting to my point - Varnum v. Brien is  a more groundbreaking case, in a lot of ways, than Goodridge v. Department of Public Health (the Massachusetts case that legalized equal marriage in the Commonwealth).

The Varnum court is bolder than the Goodridge court, legally and and politically.

I'll start with politically.

The Varnum court does one really interesting thing, before it gets to the meat of its opinion. It speaks to the role of the judiciary in society. While, after the  Massachusetts decision, the blogosphere (was there a blogosphere then? Or were there just freelance pundits, typing into the void?), rang with cries of "Activist Judges!" as if Justice Marshall was a fringe-vested hippy, trying to usher in an era of free love and cheap pot -- the Varnum court takes a decisive, legally sound, rationally worded stand. 

 The Varnum court stands up, and says, right off the bat: This IS the role of the judicial branch.  They make no humble sounds about being the unelected branch of government; they do not bow their heads in deference to the will of the people as expressed through the legislative and executive branches. 

The Varnum court takes a stand - they say that the ROLE of the judicial branch is to protect individual rights when they are infringed by the political branches. 

I love that. Love love love. We don't have two legitimate branches of government and a vestigial limb of suspicious black-robed usurpers. The Varnum court says it better than I do, though:

"A statute inconsistent with the Iowa Constitution must be declared
void, even though it may be supported by strong and deep-seated traditional beliefs and popular opinion.

...[T]he very purpose of limiting the power of the elected branches  of government by constitutional provisions like the Equal Protection Clause is “to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.”

...The idea that courts, free from the political influences in the other two branches of government, are better suited to protect individual rights was recognized at the time our Iowa Constitution was formed. "

Varnum at 13, 14 . Citations omitted.

"Our responsibility, however, is to protect constitutional rights of
individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time."

Id. at 15. 

So the Court starts on a strong note. They knew, writing the opinion, what the criticism would be, and what it would be founded on. There's no reason to write an entire section on the authority of a State Supreme Court to strike a state law which violates their constitution. 

The Varnum opinion is clearly worded, forthright, and easily accessible. It relies on a handful of well-known places, and doesn't belabor doctrine. I like to think that the court wasn't writing to the bar, to the press, or to those ubiquitous pundits - but to the people of the state. Maybe it's so readable because the Court knew that people would be interested; that people would have strong feelings, and strong opinions, and it felt that the people deserved to understand each step of their reasoning - for themselves, without an intercessor.

(Says the intercessor herself.)

So here are the two ways this decision is more legally daring than Goodridge: 

1. The Varnum court, straight-out, rules that people who want to marry people of the same sex are similarly situated individuals to people who want to marry people of the opposite sex. 

(Goodridge, I believe, didn't say this in so many words. I could check, but as I've written before - some things I don't do unless I'm paid, and back up my baseless assertions is one of them.)

 2. The Varnum court, straight-out, applies a "heightened level" of scrutiny to classifications based on sexual orientation. This is, I believe, unprecedented in the United States. 

I've written about equal protection before, and I know that I've gone through the scrutiny levels, and I've discussed invidious classifications, and I know that I've spoken about some of the groundbreaking cases - I always promise a whirlwind tour, but it ends up being a slog. I'll try to be brief, here.

 First - let me note - this decision was made based on the equal protection clause in the Iowa constitution, not under the U.S. Constitution. This is a salient difference for three reasons:

a) State constitutions may offer greater protection of individual rights than the United States Constitution.

b) State Supreme Courts are the final and definitive interpreters of their own constitutions; the United States Supreme Court can only overrule these decisions if they conflict with federal law, or the U.S. Constitution.

c) State Constitutions, obviously, vary in their guarantees and terms. Therefore, what works in Iowa or Mass. or any other state - may not be instantly translateable to another state.

 However, the analysis engaged in by the Varnum court is substantially similar to that of traditional equal protection analysis under the U.S. Constitution. So I don't feel out of my element here, although I know about as much about Iowa law as I do about goldfish. I've never had a goldfish.

Here's the way challenges to statutes on equal protection grounds usually work:

1. Does the law treat similarly situated individuals differently? 

2. Who does the law treat differently? Is this a suspect classification?

3. Appropriate level of scrutiny is applied. 

So, usually, in a discrimination case under the equal protection clause, an individual will allege that a governmnet practice is discriminatory - that it treats them differently than others in the same situation. 

They'll then say what the distinction made by the law is; whether the law treats people differently based on race, gender, nationality, religion, ethnicity, economic status.  Based on the type of discrimination, the Court will look at the justification for the law. 

Distinctions based on race generally recieve what is called "strict scrutiny"  - that means that if a law is passed that distinguishes between people based on race, there must be a VERY important reason. If the law doesn't serve a compelling need, and isn't absolutely the MOST narrowly tailored possible - it's out. Dead flat out.

Distinctions based on gender get what is called "intermediate scrutiny" - that means that if a law is passed that distinguishes men from women (maybe, in the future, men from women, and transgendered people from god, hate this awkward word, cisgendered people), then it must discriminate for a really good reason. This is usually phrased as a "substantial relationship" to an "important" government interest.  If you have a law that distinguishes between men and women, well, there's got to be a good reason for it.

All other distinctions made between any other groups of people (disabled and non-disabled, etc) receive only what's called  "rational basis" scrutiny.  As long as the law is rationally related to a legitimate government interest, it stands. 

Rational basis scrutiny generally means "you lose."  People nearly always lose. Because, really, the only way to WIN is to convince a court that there is no POSSIBLE, imaginable, relationship that the law might have to ANY purpose that the government is allowed to care about.

Goodridge was decided on a "Rational basis" test. The Mass. Supreme court just examined every possible justification to limit marriage to a man and a woman - and found that none of them were actually related to any purpose that government had any business forwarding.

But, the Varnum court - it went further.

The Varnum Court said that distinctions based on sexual orientation get heightened scrutiny. Basically, when the legislature wants to discriminate between gay people and straight people - they better have a really important reason.

And the way that they arrived at the decision to treat sexual orientation as a quasi-suspect classification (like gender) was really interesting. The court looked at four factors:

A. A history of discrimination.

B. Ability to contribute to society.

C. Immutability.

D. Political Powerlessness.

The court recognized that gay people had been traditionally subject to discrimination, and hate; that sexual orientation does not affect the individual's ability to contribute to society; if the classification is "immutible" (this means, unlikely to change, and present since birth - like race, ethnicity, gender), but that gay people aren't politically powerless. 

Because three of four factors counselled that sexual orientation should be treated as a quasi-suspect class, subject to intermediate scrutiny, the Court looked at whether the same-sex marriage ban was substantially related to an important government interest.

They found that it wasn't. They looked at all of the state's arguments, justifying the law, and they still found that the law wasn't substantially related to an important government interest.

They found that maintaining traditional marriage is not an important government interest,  because maintaining a tradition for the sake of tradition cannot be an important interest:

 "A specific tradition sought to be maintained cannot be an important
governmental objective for equal protection purposes, however, when the tradition is nothing more than the historical classification currently
expressed in the statute being challenged. When a certain tradition is used as both the governmental objective and the classification to further that objective, the equal protection analysis is transformed into the circular question of whether the classification accomplishes the governmental objective, which objective is to maintain the classification."

Hallelujah, Iowa. 

They found that, although "the promotion of the optimal environment to raise children" is an important government interest, but, that there was no substantial relationship between the statute, and the interest.

They found, essentially, that even arguing (arguendo!) that a two-parent, opposite-sex, lifetime married environment is  the best for raising children, the ban does not prevent single people from raising children, or unmarried straight couples from raising children, or unmarried same sex couples from raising children. The ban also doesn't allow same-sex partners to marry if they do not plan on raising children. Therefore, there is no substantial relationship between the ban, and the best interests of children.

Bravo. (Just for your interest, the above reasoning recurrs in a lot of equal protection cases.  Laws that are either over-or-under inclusive have a hard time meeting the substantial relationship test).

The court considered whether, the law could be justified as promoting procreation. Although the court allowed that the promotion of procreation could be an important state interest, it disagreed with the proposition that excluding gay couples from the institution of marriage would result in more procreation. That justification was swiftly dashed. Technology. Adoption. Foster care. 

As well, like the "optimal environment for children" argument, the "promotion of procreation" justification was overbroad, as there is no requirement that heterosexual couples who marry consider the fertility of their partners prior to obtaining a marriage certificate.

The court swept aside two more arguments, and held that:

"Having examined each proffered governmental objective through the appropriate lens of intermediate scrutiny, we conclude the sexual-orientation-based classification under the marriage statute does
not substantially further any of the objectives. While the objectives asserted may be important (and many undoubtedly are important), none are furthered in a substantial way by the exclusion of same-sex couples from civil marriage. "

Hurrah.

A final note on the boldness of the Iowa court. 

Instead of ending there, as I would, and Goodridge, pretty much, did - it went on. 

It addressed religious freedom and equal marriage, in a very careful way. It discussed religious freedom. It discussed why religious arguments, related to the sanctity of marriage, were not being addressed by the court. It noted  that no religious organization would be forced to change its definition of marriage; and that it would be outside the power of the court to do so. 

"As a result, civil marriage must be judged under our constitutional
standards of equal protection and not under religious doctrines or the
religious views of individuals. This approach does not disrespect or
denigrate the religious views of many Iowans who may strongly believe in marriage as a dual-gender union, but considers, as we must, only the
constitutional rights of all people, as expressed by the promise of equal
protection for all. We are not permitted to do less and would damage our constitution immeasurably by trying to do more."

I think this was another really important move by Iowa. This statement  is another sign, to me, that the Iowa Supreme Court is writing to Iowans here. I like that. It's as if the court recognizes not only the legal impact of their decision, but the decision's import to the people of Iowa. It anticipates concerns; it anticipates that people will want to know why; and it offers a lucid, accessible opinion that actually tells people what they will want to know. 

Read it yourself:

 http://www.kcci.com/download/2009/0403/19084885.pdf