Aside from the unanimity of the opinion, for me, the most interesting part of the Iowa Supreme Court’s decision in Varnum v. Brien yesterday is its forthright discussion of religious opposition to same-sex marriage and the role that it plays in cases involving lesbians and gay men. As the court correctly notes, “[w]hile unexpressed, religious sentiment most likely motivates many, if not most, opponents of same-sex civil marriage and perhaps even shapes the views of those people who may accept gay and lesbian unions but find the notion of same-sex marriage unsettling.” The court then goes out of its way to address precisely why religious beliefs should play no part in its decision.
The court first notes that religious objections to same-sex marriage are often based on arguments of tradition and biblical interpretation. Yet, “[t]he 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.” In effect, the court unmasks the secular argument about retaining the “traditional” definition of marriage as no more than a disguised religious argument: “Whether expressly or impliedly, much of society rejects same-sex marriage due to sincere, deeply ingrained:even fundamental:religious belief.”
After acknowledging this religious opposition to same-sex marriage and its role in the debates over same-sex marriage, the court complicated the picture by acknowledging that other groups “have strong religious views that yield the opposite conclusion,” as they do recognize same-sex marriage. Depicting this as a religious difference of opinion, the court made it clear that its role is actually to ensure that the government stays out of this religious dispute:
Our constitution does not permit any branch of government to resolve these types of religious debates and entrusts to courts the task of ensuring government avoids them. See Iowa Const. art. I, § 3 (â€œThe general assembly shall make no law respecting an establishment of religion . . . .”).
To pacify those who might be upset at the court’s refusal to enshrine certain religious groups’ views of marriage in the law, the court then drew a sharp distinction between civil and religious marriage. The court underscored that its decision relates only to civil marriage and does not affect religious definitions of marriage, leaving it to each religion to decide which marriages it will solemnize. The court’s task, it said, was simply to apply the constitutional guarantee of equal protection of the law to the exclusion of same-sex couples from civil marriage.
But, by speaking in terms of the establishment of religion, the court made an important rhetorical move, however obliquely. The court shifted the discussion away from the usual framing of arguments about same-sex marriage, which tend to focus on the effects of same-sex marriage on heterosexuals. This framing is epitomized by the labels applied to legislation and constitutional amendments designed to exclude same-sex couples from marriage; these measures are routinely called “defense of marriage” acts and “marriage protection” amendments, by their proponents and opponents alike. This rhetoric paints lesbians and gay men as aggressors and heterosexuals as victims. The Iowa Supreme Court makes it clear in this section of its opinion, though, that just as the religious beliefs of those who oppose same-sex marriage must be respected by the government, so must the government respect the right of those who do not subscribe to those beliefs to be free of them. In other words, one person’s religious beliefs–no matter how sincere or strongly held–should play no role in determining another’s constitutional rights. At least implicitly, the court is saying that this case–and the whole debate over same-sex marriage and lesbian and gay rights–is about the real, tangible effects of discrimination on sexual minorities, and not the effect of eradicating discrimination on the heterosexual majority.