Singled Out: Hold your applause

If Iowa’s judiciary had wanted to cut the litigation costs of last week’s four-years-in-the-making gay marriage decision, it might have preempted opening arguments with a few questions and cautions a la DH Lawrence, poet of un-conformist relationship ideals.

“But do you hope to get anywhere by just marrying?” asks Lawrence’s Ursula point-blank. And later Rupert, who finds the “exclusive alliance” of “hot narrow intimacy between man and wife” most repulsive: “You’ve got to take down the love-and-marriage ideal from its pedestal.”

Well when you put it that way...

But government lacks such cost-cutting expertise, so the six gay couples persisted on having their day in court, and now can marry.

Remember, what’s relevant here is not whether you agree politically with gay marriage (I disagree with both gay and straight rent-seeking), but whether Iowa’s Supreme Court correctly interpreted Iowa’s Equal Protection Clause (EPC). For if it has overstepped its bounds, then the Imperial Judiciary lives, and the democratic institutions that bind American society together float on whims that may shift to scourge you next time.

The plaintiffs made two separate arguments for gay marriage: One, gay marriage is a fundamental right –just down-right constitutionally fundamental, you know, like, er, sodomy, according to a 2003 ruling. And two, allowing straight marriage without gay marriage violates the EPC. The court rejected # 1 and took on # 2.

Just like the federal EPC, Iowa’s EPC prohibits discriminating against one class in a situation similar to another given the legitimate purpose of the law. For example, 20-yearolds and 21-yearolds are in different situations under the law when it comes to purchasing alcohol. A bartender can discriminate between them because the legislature found a “rational basis” to legitimize this age discrimination (if we must call denying a 20-yearold Iraq War hero a Premium Light “rational”). However, since 21 and 71-yearolds are in similar situations given the purpose of the law, the bartender must serve both indiscriminately.

In the Iowa case, gay couples see themselves as the 20-yearold Iraq war hero. Typically the burden is on the plaintiff to prove why there was no “rational basis” for the original law (the straight marriage law defends itself as providing a centuries-old stable framework for procreation and childrearing; perhaps it doesn’t persuade me, but a rational person could agree). But Iowa decided that gays are a special case that requires raising the standard from “rational basis” to “intermediate scrutiny.” The gay couples brought in evidence that children raised without both a mother and father would turn out just fine, and…game set!

There are a few precedents to savor here. I am a single man – the forgotten man, to use the phrase of New Deal critic Amity Shlaes – forced to pay for the government-mandated benefits (i.e. tax breaks and state-provided health insurance sharing) of this new block of rent-seekers. And if the court is right in maternally lamenting that “perhaps the ultimate disadvantage expressed in the testimony of the plaintiffs is the inability to obtain for themselves and for their children the personal and public affirmation that accompanies marriage,” (for what good is the state if it doesn’t make us feel good about ourselves?) then how am I to feel when the state is affirming everyone else’s life choices but not mine?

Furthermore, if the court accepts the plaintiffs’ argument that having both a mother and father figure is unnecessary for child rearing, then what is the state’s rational purpose in blessing gay couples with special benefits, but not single-parent families? Alas, being single is the new gay.

Finally, squint and read one of the court’s ominous side notes to a soliloquy on the powerlessness of gay people: “By one measure—occupation of public office—the political power of racial minorities is unbounded in this country today. This fact was on display January 20, 2009, when Barack H. Obama, the African-American son of a native Kenyan, was inaugurated as the forty-fourth President of the United States of America” (italics mine). I don’t know what the status of affirmative action is in Iowa, but this case certainly puts it on shaky grounds.

So rejoice at the political winds if you must, but singles, blacks, 20-yearold Iraq vets, and lovers of federalism have heard better news.