First, the Iowa Supreme Court goes out of its way to withhold even the most cursory of nods toward substantive due process “fundamental rights” jurisprudence in supporting its decision. This is notable because United States Supreme Court cases involving sexual orientation discrimination such as Bowers v. Hardwick (which was adverse to gay rights) and Lawrence v. Texas (which explicitly overturned Bowers) rested their reasoning very much on a substantive due process approach. Varnum‘s reasoning rests entirely upon equal protection grounds.

Varnum is different from the Massachusetts gay marriage decision, Goodridge, as Goodridge can’t help itself but rest upon equal protection and substantive due process. This probably is because Goodridge uses a lot of the reasoning as Loving v. Virginia, the U.S. Supreme Court decision which struck down bans on interracial marriage. Loving too rested its decision upon both equal protection and substantive due process. I didn’t see the Iowa Supreme Court quote Loving even in passing.

Second, and related to the first obsevation, the Iowa Supreme Court very methodically develops its equal protection reasoning to determine that Iowa laws which discriminate based upon sexual orientation require at least “heightened scrutiny” by Iowa courts. In coming to this determination, the Iowa Supreme Court adopts and explicates the U.S. Supreme Court’s “four factor test” for determing whether a classification (i.e. sexual orientation) in a statute should be considered by a court to be suspect. Applying these four factors, the Iowa Supreme Court decides that statutory classifications based upon sexual orientation should be considered suspect.

What’s interesting about what the Iowa Supreme Court is doing in Varnum is that it’s sort of “rewinding” the legal issues over gay rights and putting them in a purely equal protection realm. Then, the Court is developing the equal protection jurisprudence to cover sexual orientation. One can read the Varnum opinion as instructions for what should have happened on the federal level: the issues of gay rights should have been argued and decided solely on equal protection grounds, and decided in the affirmative.

Finally, and related to the first and second observations, Varnum is a very reasoned and methodical opinion almost entirely free of rhetorical flourish. I think that much of this is due to the equal protection approach to the case rather than a substantive due process approach. Substantive due process jurisprudence, which necessarily concerns itself with concepts of rights and liberties, lends itself to soaring passages of rhetoric. The equal protection approach, on the other hand, is more of a “legal reasoning” approach.

That, and Iowans are kind of a humble and reasonable sort.

As somebody told me the day Varnum was announced, maybe the coasts should take some lessons from “flyover country.”

Then have a listen to the Godfather.

Here’s a link to an excerpt from Conason’s book on Salon (you may have to watch a brief advertisement in order to get to the content).

The most obvious symptoms can be observed in the regime’s style, which features an almost casual contempt for democratic and lawful norms; an expanding appetite for executive control at the expense of constitutional balances; a reckless impulse to corrupt national institutions with partisan ideology; and an ugly tendency to smear dissent as disloyalty. The most troubling effects are matters of substance, including the suspension of traditional legal rights for certain citizens; the imposition of secrecy and the inhibition of the free flow of information; the extension of domestic spying without legal sanction or warrant; the promotion of torture and other barbaric practices, in defiance of American and international law; and the collusion of government and party with corporate interests and religious fundamentalists.

The entirety of the excerpt is well worth reading. Whether or not Conason’s fears of totalitarianism are well-founded, these types of fears more and more have found expression in more and more main-stream outlets. While Salon doesn’t attempt to obscure its left-of-center leanings, it’s hardly the domain of mad ravings or conspiracy-laden “rumors on the internets.”

But if the good old-fashioned “internets” are more your style, I highly recommend David Neiwert’s 6-part series on the more social and cultural aspects of a perceived rising tide of totalitarianism in America. Neiwert is both a journalist and intelligent possesses quite the vocabulary, hence the title of his paper inspired by the 6-part series involves the news media, and word I had to look up in a dictionary: Rush, Newspeak and Fascism: An Exegesis.

Despite this special status of Habeas in our Constitutional regime, our attorney general argued today before our Senate that not every citizen of (let alone individual within) the United States possesses this most natural of rights:

Specter: Now wait a minute, wait a minute. The Constitution says you can’t take it away except in the case of invasion or rebellion. Doesn’t that mean you have the right of habeas corpus?

Gonzales: I meant by that comment that the Constitution doesn’t say that every individual in the United States or every citizen has or is assured the right of habeas corpus. It doesn’t say that. It simply says that the right of habeas corpus shall not be suspended.

So, some of us neither have, nor are “assured” (by the state, I presume) certain natural rights and liberties? I guess our legal and political culture has been dead wrong for at least 231 years, or for at least 318 years, if not for at least 907 years.

What it Means to be a Liberal

Here is one conservative’s off-the-cuff response to this ten-point listing:

What is Means to be a Conservative

… committed same sex couples must be afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes. The name to be given to the statutory scheme that provides full rights and benefits to samesex couples, whether marriage or some other term, is a matter left to the democratic process.

At first glance, the decision seems similiar to the Vermont Supreme Court decision from several years ago directing the legislature to create a statutory schema allowing for same-sex “civil unions,” but not necessarily directing the legislature to create a statutory schema allowing for same-sex “marriage.”

Semantics, semantics.

UPDATE: Jack Balkin also compares the NJ Supreme Court decision to that of the Vermont Supreme Court. He also correctly spells similar.

UPDATE II: … and lest you think this decision was the doing of “activist judges,” Glenn Greenwald at C&L provides some background:

The decision today is entirely consistent with the democratic will of New Jersey residents. The New Jersey legislature already enacted a domestic partnership bill two years ago which recognizes, and grants a whole array of marital rights to, same-sex couples. But the way the laws were written, some rights were still assigned only to “married” couples. The court decision today simply requires that those same-sex partnerships have all of the rights which are given to married couples. But New Jersey voters, through their representatives, already approved of recognition of same-sex relationships two years ago.