Key Point. The recognition of same-sex marriages by a state court or legislature will not require clergy to perform such marriages, or compel churches to allow their facilities to be used for them, in violation of their religious beliefs.
The Iowa Supreme Court unanimously ruled that a state law defining marriage as a union between a man and a woman was invalid because it violated the constitutional rights of same-sex couples who desired to marry. The Iowa legislature amended its marriage statute in 1998 to define marriage as a union between only a man and a woman. Despite this law, the six same-sex couples (the "plaintiffs") asked a county recorder to issue marriage licenses to them. The recorder, following the law, refused to issue the licenses, and the plaintiffs were unable to marry. Except for the statute defining marriage as a union between a man and a woman, the plaintiffs met the legal requirements to marry in Iowa.
The plaintiffs asked a court to declare the marriage statute unconstitutional so they could obtain the array of benefits of marriage enjoyed by heterosexual couples. They identified several disadvantages associated with their inability to marry, including: (1) the legal inability to make many life and death decisions affecting their partner, including decisions related to health care, burial arrangements, autopsy, and disposition of remains following death. Various plaintiffs told of the inability to share in their partners' state-provided health insurance, public-employee pension benefits, and many private-employer-provided benefits and protections; (2) denial of several tax benefits; (3) more cumbersome adoption proceedings.
The county identified five reasons in support of the statute defining marriage as a union between a man and a woman: (1) promoting procreation; (2) promoting child rearing by a mother and a father within a marriage; (3) promoting stability in an opposite-sex relationship to raise and nurture children; (4) conservation of state resources; and (5) promoting the traditional notion of marriage.
The plaintiffs claimed that most scientific research has repudiated the commonly assumed notion that children need opposite-sex parents or biological parents to grow into well-adjusted adults. They noted that many organizations, including the American Academy of Pediatrics, the American Psychiatric Association, the American Psychological Association, the National Association of Social Workers, and the Child Welfare League of America, supported the conclusion that same-sex parents are as effective as heterosexual parents in raising children. For example, the official policy of the American Psychological Association declares, "There is no scientific evidence that parenting effectiveness is related to parental sexual orientation: [Same-sex] parents are as likely as heterosexual parents to provide supportive and healthy environments for children."
A trial court concluded the state marriage statute was unconstitutional under the due process and equal protection clauses of the Iowa Constitution and ruled in favor of the plaintiffs. The case was appealed to the state supreme court.
The supreme court's decision
The state supreme court ruled that a statute that treats persons differently will be permissible under the state constitution's guarantees of due process and equal protection of the laws only if "substantially related to an important governmental objective." The court considered each of the five justifications cited by the county in support of the marriage statute, and concluded that none of them was substantially related to a governmental objective. It observed, in part:
We begin with the county's argument that the goal of the same-sex marriage ban is to ensure children will be raised only in the optimal milieu. In pursuit of this objective, the statutory exclusion of gay and lesbian people is both under-inclusive and over-inclusive. The civil marriage statute is under-inclusive because it does not exclude from marriage other groups of parents—such as child abusers, sexual predators, parents neglecting to provide child support, and violent felons—that are undeniably less than optimal parents. Such under-inclusion tends to demonstrate that the sexual-orientation-based classification is grounded in prejudice or "overbroad generalizations about the different talents, capacities, or preferences" of gay and lesbian people, rather than having a substantial relationship to some important objective. If the marriage statute was truly focused on optimal parenting, many classifications of people would be excluded, not merely gay and lesbian people …. The ban on same-sex marriage is substantially overinclusive because not all same-sex couples choose to raise children. Yet, the marriage statute denies civil marriage to all gay and lesbian people in order to discourage the limited number of same-sex couples who desire to raise children ….
The county also proposes that government endorsement of traditional civil marriage will result in more procreation. It points out that procreation is important to the continuation of the human race, and opposite-sex couples accomplish this objective because procreation occurs naturally within this group. In contrast, the county points out, same-sex couples can procreate only through assisted reproductive techniques, and some same-sex couples may choose not to procreate. While heterosexual marriage does lead to procreation, the argument by the county fails to address the real issue in our required analysis of the objective: whether exclusion of gay and lesbian individuals from the institution of civil marriage will result in more procreation? If procreation is the true objective, then the proffered classification must work to achieve that objective …. The statute is significantly under-inclusive with respect to the objective of increasing procreation because it does not include a variety of groups that do not procreate for reasons such as age, physical disability, or choice. In other words, the classification is not substantially related to the asserted legislative purpose ….
Having examined each proffered governmental objective … 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. Our equal protection clause requires more than has been offered to justify the continued existence of the same-sex marriage ban under the statute.
Religious institutions and clergy
Will ministers in Iowa be forced to perform marriages for same-sex couples in violation of their religious beliefs? Will churches be compelled to make their facilities available for same-sex marriages? Here is how the court responded to such concerns:
It is quite understandable that religiously motivated opposition to same-sex civil marriage shapes the basis for legal opposition to same-sex marriage, even if only indirectly. Religious objections to same-sex marriage are supported by thousands of years of tradition and biblical interpretation. The belief that the "sanctity of marriage" would be undermined by the inclusion of gay and lesbian couples bears a striking conceptual resemblance to the expressed secular rationale for maintaining the tradition of marriage as a union between dual-gender couples, but better identifies the source of the opposition. Whether expressly or impliedly, much of society rejects same-sex marriage due to sincere, deeply ingrained-even fundamental-religious belief ….
We, of course, have a constitutional mandate to protect the free exercise of religion in Iowa, which includes the freedom of a religious organization to define marriages it solemnizes as unions between a man and a woman. This mission to protect religious freedom is consistent with our task to prevent government from endorsing any religious view. State government can have no religious views, either directly or indirectly, expressed through its legislation. This proposition is the essence of the separation of church and state. 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 ….
In the final analysis, we give respect to the views of all Iowans on the issue of same-sex marriage—.religious or otherwise—.by giving respect to our constitutional principles. These principles require that the state recognize both opposite-sex and same-sex civil marriage. Religious doctrine and views contrary to this principle of law are unaffected, and people can continue to associate with the religion that best reflects their views. A religious denomination can still define marriage as a union between a man and a woman, and a marriage ceremony performed by a minister, priest, rabbi, or other person ordained or designated as a leader of the person's religious faith does not lose its meaning as a sacrament or other religious institution. The sanctity of all religious marriages celebrated in the future will have the same meaning as those celebrated in the past. The only difference is civil marriage will now take on a new meaning that reflects a more complete understanding of equal protection of the law. This result is what our constitution requires.
Application. The court's ruling contains an unequivocal recognition of two fundamental principles: (1) no church will be required to perform a same-sex marriage, or any other marriage, that violates its religious beliefs; and (2) no minister will be required to perform a marriage in violation of his or her religious beliefs. In other words, the very concerns that are being raised by some church leaders in the aftermath of the court's decision were anticipated and addressed by the court itself. Varnum v. Brien, 2009 WL 874044 (Iowa 2009).
Resource. For a comprehensive look at this topic, purchase the downloadable Feature Report, "What Clergy Should Know About Same-Sex Marriages," at ChurchLawAndTaxStore.com.
This Recent Development first appeared in Church Law & Tax Report, July/August 2009.