After reflecting further on the Iowa Supreme Court’s decision last week in Varnum v. Brien, invalidating that state’s marriage law, it occurred to me that the court’s error was one fundamental to the understanding and structure of equal protection rather than a mere error in application. The court proceeds as one would expect: determine that the law discriminates against a class; determine that that class is a suspect one warranting heightened scrutiny; determine that there is no important state interest; and thus determine the Iowa marriage statute is unconstitutional. What the court fails to analyze, however, is the very touchstone of the equal protection analysis: the existence of animus behind the law, which animus is necessary to strip a law of its presumption of constitutionality.
All laws create classifications. Real estate brokers are subject to a set of regulations separate from mortgage brokers, separate from investment brokers, separate still from doctors, lawyers, and pest exterminators. The equal protection doctrine—whether federal or state—does not make any of these regulations unconstitutional on the basis that they treat groups of professionals differently. Obviously, such would put a quick end to most laws—a happy result for some, but certainly not the objective of equal protection. Instead, its objective is to prevent majorities from enacting laws for some improper purpose other than the health, safety, morals, and welfare of the people.
The 14th Amendment, obviously, sought to rid the states of laws that were premised on wrongheaded notions of race, which had cropped up in part due to an effort to legitimize and prolong the hopelessly illegitimate and doomed institution of slavery. Because of that particular unfortunate history, laws making classifications on the basis of race would have to be carefully and seriously monitored by our counter-majoritarian courts. And, because legislatures could easily hide its true motives, the only way the courts could achieve that purpose was to create a presumption that distinctions based on race were based on animus, and thus put the onus on the states to prove otherwise. This is what became known as strict scrutiny, where the state would be required to show a “compelling” state interest for the discriminatory law, and that it was very narrowly tailored to achieve that interest.
As tends to happen in constitutional law, doctrines that are designed to remedy a particular evil turn into abstract constitutional principles that might be extended to cure all sorts of other social ills, whether real or perceived. And rightly so: words refer to an infinite number of things, and the 14th Amendment is not limited just to “any person” living at the time of its enactment, or “any person” affected by the racial attitudes of the 19th century. Thus, its application to irrational laws discriminating against women was an appropriate extension of the doctrine, to the extent that application established a suitable basis for assuming an improper purpose on the part of the legislature.
This is precisely what is lacking in Varnum v. Brien—any demonstration that Iowa’s marriage law was premised on any animus against homosexuals. The best it can muster are generalizations ("the historical reality . . . of purposeful and invidious discrimination" (Varnum at 37), the U.S. Supreme Court's rebuke of Texas's anti-sodomy laws in Lawrence v. Texas, federal military policy regarding homosexuals, and, most amusingly, the specter of unnamed "[s]chool-yard bullies" who mete out "school-yard prejudice" (Varnum at 37-38). The court does not even guess whether or how much any of these supposedly "purposeful and invidious" acts of discrimination occur within Iowa's state lines.
Curiously, however, the court goes on to describe the huge strides Iowa's legislature has been making to curtail such abuses, making frequent allusions to the various advances in the cause of gay rights, various Iowa civil rights statutes calling an end to all sorts of other forms of discrimination, and noting that civil marriage is the "notable exception to this trend." (Varnum at 47-48.)
The Iowa General Assembly has recognized the need to address sexual-orientation-based discrimination by including sexual orientation as a characteristic protected in the Iowa Civil Rights Act, by defining hate crimes include certain offenses committed because of the victim’s sexual orientation, and by prohibiting “harassing or bullying” behavior in schools based on sexual orientation. See Iowa Code §§ 216.2–.18A (Iowa Civil Rights Act) (sexual-orientation-based discrimination); id. § 280.28 (school harassment and bullying); id. § 729A.2 (hate crimes committed because of the victim’s sexual orientation). These statutory enactments demonstrate a legislative recognition of the need to remedy historical sexual-orientation based discrimination.
(Varnum at 38.) In other words, the Iowa General Assembly is on the case; it does not need its Supreme Court to tell it how to address the needs of that state’s gay community. Whatever ills that community has or is suffering is clearly being considered—and favorably, the court seems to think. Except for the gay marriage issue, of course.
But Iowa is in good company in that regard. Forty other states have banned same-sex marriages, despite the fact that gays have been consistently advancing their civil rights across the nation. The fact that they continue to lose on the issue—just one, single issue—of civil marriage should be telling: it is not due to a general animus or reluctance to give civil rights or dignity to homosexuals. It is merely because there are certain attitudes towards marriage that continue to make it difficult to reconcile a cultural worldview in which gays share that peculiar and almost mystical institution with straights. (After all, some women still torture themselves over whether they can “wear white” on their wedding day—weddings and marriage come with a lot of odd strings from whence we know not.)
One thing is sure from the court’s opinion: there is no animus against gays underlying Iowa's marriage statute, no “unfair and severe prejudice” that would establish a presumption of discrimination based on sexual orientation. (Varnum at 48.) Were it otherwise, how could one explain the great advancements in all other facets of life and dignity that the homosexual community has made, both in Iowa and nationally?
Thus, the “important state interest” requirement (applied in instances of the “intermediate” or “heightened scrutiny” analysis) should not have been imposed in Varnum. This requirement is needed to overcome the presumption that there is animus behind the law, an attempt to irrationally or wrongfully deprive a suspect class of a right. That was not happening in Iowa.
Usually, moral legislation can only withstand the lax rational basis standard, and gets struck down if any higher level of scrutiny is applied. Higher levels of scrutiny requires the law to be justified by an empirical, demonstrable purpose—i.e., not merely a moral one. Even assuming, for the sake of argument, that homosexuals were being deprived of a right, and even assuming, for the sake of argument, they were a suspect class, the specific overrides the general. That is, if there is no improper purpose behind the specific law in question, it matters not whether the suspect group has suffered some generalized historical marginalization. And in this specific instance, no animus can be imputed to the legislature with respect to Iowa's marriage statute, and thus it is immaterial whether such animus perhaps could have been generally applied for other kinds of discrimination against Iowan homosexuals. (Then again, even this would be hard, given the activism on Iowa’s part to eradicate discrimination and ill-treatment of gays. But it is even more difficult to show discrimination in the context of marriage, since this is an institution steeped deeper in religious heritage, and which has exhibited a pattern of resistance all over the country, as the court itself notes.)
Without animus, classifications are fine. The equal protection clause was never meant to prohibit classifications—we require all sorts of different licenses and standards for all sorts of different things and group of people. It only prohibits the kind of irrational and invidious discrimination like the racial discrimination that plagued us for many decades and centuries. I even submit that, were the last trace of that irrational and invidious tendency to discriminate based on race to leave humanity for good, we would be free to discriminate even upon that basis, subject only to a rational basis standard. (This despite Justice Thomas's concurring opinion in Missouri v. Jenkins.) Granted, such a hypothetical involves a utopian ideal of complete racial blindness and is thus probably entirely theoretical. The point remains, however: no animus, no searching scrutiny.
Scrutiny should only diminish over time, never increase. Our society is progressing on its own, adopting more and more inclusive mores and attitudes. While we will never reach utopia, things are getting better, not worse. Unfortunately for some jurists, this means fewer opportunities for courts to invalidate laws on the basis of invidious discrimination. At least, it should. Courts like Iowa’s will still find animus where there is none in order to accelerate social change to their satisfaction.
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