Okay, I’ve had the chance to read through the unanimous Varnum decision a couple of times now, and, for what’s it worth, here are some things I’ve found notable about it.
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.”
