Iowa has now joined Massachusetts and Connecticut as states that recognize same-sex marriage. Nine states recognize some sort of domestic partnership. Vermont's governor has just vetoed legislation legalizing same-sex marriage, and legislators are looking to override. Voters in California have overturned the state Supreme Court's edict barring enforcement of a same-sex marriage ban. How can this issue not be headed to the U.S. Supreme Court?
What's significant for Indiana in the Iowa case is that the state's Supreme Court unanimously ruled that a ban on same-sex marriage violated Iowa's equal-protection clause, despite the fact that only about 26 percent of Iowans support gay marriage. A constitutional amendment here has been blocked by people who say the state's law is sufficient, just as many people in conservative Iowa probably argued that their state law was sufficient.
It's interesting to go back and read the coverage when a challenge to Indiana's ban made it to the Indiana Court of Appeals. The appeals court ruled that such a ban does not violate Indiana's equal-protection guarantee largely because of, well, you know, the children:
Indiana Supreme Court precedent requires that laws treating citizens unequally are constitutional only if they are reasonably related to a natural quality that distinguishes the classes of people. In this case, the innate characteristic of same-sex couples is that they cannot naturally produce offspring, the opinion said.
That's important, the judges concluded, because "opposite-sex marriage furthers the legitimate state interest in encouraging opposite-sex couples to procreate responsibly and have and raise children within a stable environment." "Recognition of same-sex marriage would not further this interest," the decision said.
That doesn't seem like very tight reasoning in an era when same-sex couples artificially have children all the time and many opposite-sex couples can't or choose not to have children. So perhaps conservative legislators aren't just scare-mongering when they say state law alone won't hold up. I suspect those who say same-sex marriage is not going to be recognized in Indiana anytime soon are right, but the issue is far from settled. If the issue does make it to the U.S. Supreme Court, some people might be surprised at the outcome. Justice Scalia, for example, has said that, since the U.S. Constitution is completely silent on the subject of same-sex marriage, the issue should be settled by legislatures.
The three-judge panel of the Indiana Court of Appeals thought so, too: "The Indiana Constitution does not require the governmental recognition of same-sex marriage, although the legislature is certainly free to grant such recognition or create a parallel institution under that document."
Same-sex mariage is like medical marijuana in that people's attitudes about it are evolving, and as that happens, state legislatures take notice and take action. That's as it should be if the concept of a slowly evolving law that we can all understand and buy into still means anything.
UPDATE: Then there were four. Vermont legislators override governor's veto and become