Just some kid from the Chicago suburbs that moved to the southwest, went to law school, and ended up confronted with shifting ideals. My thoughts...boring and unedited.

Tuesday, April 28, 2009

the absurdity of prosecutorial justice, extensive wiretapping, and iowa opens its doors...

today the supreme court reminded us again why trust in the ethics of the nations prosecutors is severely misplaced. while they take an oath to seek justice, not vengeance or convictions, but justice, all too often they seem to transform into conviction at all cost drones. in cone v. bell, the supremes chastized tennessee prosecutors for what is becoming a rather common story in the criminal justice world...withholding evidence that doesn't fit with their theory of the case (which comes with the wonderful benefit of preventing the defense from presenting its best case...afterall, nobody wants to screw up their conviction rates when there is an election on the horizon). this time it was a vietnam vet that claimed PTSD and drug addiction led him to do some scary shit. and during trial, the prosecutor mocked these claims, implying that there was no way this guy was at all mentally unstable or had any issues with drug addiction...even put an officer on the stand claiming it was a load of bullshit. right on cue the jury (already hand-picked to only include a small section of the community that is gung-ho for capital punishment thereby knocking out a large portion of society from even having a chance to sit) declined to accept the mitigation of PTSD and drug addiction and voted for death. only there was a problem that Mr. Cone would not discover until years later when a local freedom of information law gave him access to the prosecutor's files...it was full of evidence that corroborated his claims - police reports and BOLO's referring to him as a "drug addict" and "heavy drug user"...witness statements describing him as wild looking, crazy and drunk and high...even statements from the officer the prosecution put on to rebut cone's claims that referred to him as a "heavy drug user." unbelievably, the state had the gonads to tell the supremes they were not required to turn over the evidence clearly favorable to the sole defense offered at trial...prompting justice souter to declare "I believe you have just made a statement to me that is utterly irrational." and that is exactly the problem with prosecutors throughout the country...they are utterly irrational. the only thing that matters to them are convictions...it doesn't matter if its the right guy, it doesn't matter if all of society is better served through other means...all that matters is another notch in the belt.

which leads me to another observation. it has become extremely obvious that during the "damn the constitution, full speed ahead" era of the boy king and his "putting testicles in a vice works" walking dead sidekick wiretaps were not used to hunt for terrorists or keep an eye on anything that had to do with national security. they became the quick and cheap way to investigate anything and everything...and everybody's phone got tapped. somebody says you sell drugs - no problem, we'll just tap your phone and listen for months until you say the magic words. it has begun to seem like there is not a single marijuana case in this state over the last few years that did not involve a wiretap...regardless of what the pesky constitution and supreme court had to say about it. and if officers are turning to it that quickly...I guarantee they are going hoover on your ass too. next stop - political opponents.

iowa opened its doors to gays for marriage this week. and guess what...all hell did not break loose. hellfire did not reign down. iowa did not become a dustbowl. children did not go all catholic priest overnight. all of this despite the best efforts of the fringe folks still clinging to the idea of a hard-line "christian" america...including the very effective petition turned in by one man in iowa city which contained...wait for it...8 signatures. one such fool had the quote of the day...although somehow I guarantee he entirely missed the deeper meaning. chuck hurley of the "family policy center" (one of those "we wanted to call it death to queers but we are far too cowardly for that" groups) turned in a petition asking the clerks to disobey the law and to refuse licenses. he said more people did not come out in person to protest because they had important things like "raising children and going to work" to attend to. it seems he missed the point of his own remark though...in the end, regardless of who you put what into at night within the confines of a consensual relationship, all you really want out of life is to be free to raise your children and go to work. although apparently mr. hurley is not concerned with his children...and his work is preventing others from raising children and working.

step on my old size nines and I'll take you round...

Friday, April 24, 2009

hating miss cali, corporations deserve no role in policy, and when drug reform is accepted...

perez hilton, that bastion of respectable journalism, has his manties in a bunch because miss california answered his question honestly...only not the answer he wanted to hear. and suddenly all sorts are raising their pitchforks and torches and clamoring for a resignation at best, or an actual tar and feathering at worst. and once again, I am reminded exactly how not to move forward...how not to bring about the types of advances and changes you hope for - get pissed off and spew hatred at poor ignorant fools that just don't get it.

if you actually bothered to listen to her 30 second response to whether or not she supports gay marriage rights you understand that she is not the enemy to be fought with vitriol...that should be reserved for dobson and his ilk (side note - thank the lord dobson is finally focusing on his own damn family...which is a complete fucking disaster from what I hear). this is basically what she said: "I like to think I respect people and whatever is left of the democratic process. but my mommy and daddy also taught me that just because everybody likes dick does not mean that everybody should get dick." there was no hatred in it, there wasn't even any fucking knowledge in it...it was a prime example of plain and simple ignorance. here is person that likely is unaware that they have ever known someone that is gay. here is a person that likely has no idea what the marriage issue actually means to gays. and so here is a person that can likely be won over with some simple understanding and experience. and yet we respond by trashing her at every opportunity...assuring that not only will she become so deadset in her ways and full of resentment that she will forever fight against equal rights for gays, but that many in her position will as well. so mr. hilton, do us all a favor and shut the fuck up. if you aren't going to do any of the heavy lifting anyways, get the fuck out of the way.

somehow, as good capitalist sheep, we accepted that corporations are people (hilarious) and that corporations have a conscience (because we all know made-up entities also contain made-up hearts that feel made-up empathy). and so, at the behest of the right-wing nutjob race, we accepted that they know what it is best and that they deserve a seat at the table in policy arguments. because if its good for business its good for america. except that whats good for business is making as much money as possible at the expense of as many people as possible...so basically, whats good for business is good for business and thats it. if you happen to be the business...fantastic. if you happen to be the other 95% of the populace...then you're apparently just an atm anyways.

and so we allowed them to take over the debate as to intelligent use of energy and issues associated with environmental degredation. and guess what...they lied to protect their profit. imagine that...a corporation being concerned with the bottom line above all else. who would've thunk it. and now we learn that all those "scientists" that the right-wing establishment relied upon to justify to some fool his driving of a behemoth of a vehicle with no legitimate purpose and our spewing of as much crap into the air as we could because doing otherwise would kill the economy (which is humming along just fine thank you) simply don't exist. we learn that while industry scientists are screaming behind the scenes "you are lying to people. you simply cannot refute that human activity is drastically altering the climate and we are fucking ourselves right in the ass" they are running around the halls of congress and the white house participating in policy-making based on the lies their own scientists refuted.

when will we learn? when will we accept what the nation's founders took for granted: that a business is not human. when will we accept what the first teabaggers were trying to tell us: that government is supposed to protect the people from soulless money-hungry made-up phantom entities, not give them the reach-around.

the feds are asking for a five year sentence for a medical marijuana distributor from california. of course it had to go federal because his actions were completely legal under state law. and despite holder's promises not to go after these people, apparently that doesn't include anyone that got caught up in the pyschotic frenzy of the bush justice department. this. is. insanity. but I see a light on the horizon...I see a time when we will accept that the "war" on drugs is a complete fucking waste of our time and money...

unfortunately, I don't see it showing up until bodies are hanging from the expressways in phoenix. it is easy for us to ignore the incredible downside of our obsession with drugs when we can hide it behind bars and south of the border (not to mention when the worst of it is reserved for "those" people). except that nastiness has decided not to stay hidden anymore and its moving into john mccain's backyard. we've made a billionaire out of a cartel boss...and we've turned mexico into a surreal beyond thunderdome experience. and now mad max is coming to the states...where a bunch of crackers love to settle. and finally, when that happens, and we can't hide it anymore, we'll decide that pissing money away so that neighbor joe can be kidnapped for ransom and his headless body appear on the lawn isn't such a good idea afterall...

today was supposed to be not just another day...

Thursday, April 23, 2009

its time to examine our own inhumanity...

everybody is up in arms in one way or another now that the "torture memos" have been released and we know what we already knew all along...that the united states utilized illegal and disgustingly inhumane methods against a perceived enemy. well...no shit. on one hand, the right-wing blowhards have it right (although it is amusing that their moral absolutism disappears whenever they are committing immoral acts) in that we shouldn't be so shocked over this...and often times our outrage becomes somewhat partisan (afterall...we all know democratic presidents have presided over abuses of human rights...but we didn't seem to get too pissed off about it until a nutbag republican bragged about it). and in reality, this really isn't even much different than what the united states has done for pretty much its entire existence in one way or another. hell, it isn't even the first time the united states has openly bragged about frighteningly inhumane and immoral behavior. of course to understand that would require more than the most cursory understanding of your own nation's history...something entirely lacking in the majority of the american populace, and seemingly even moreso in the halls of power.

but I guess at least before we could pretend we were above it...that we weren't involved in the same sort of behavior we so often condemned in our enemies. and in a sense wanting to believe you are above it can be a good thing in the same way that lionizing past leaders can be a good thing...it gives you something to shoot for. but if there is a lesson in this sad chapter of our history (and the book is becoming rather lengthy at this point), it is that our use of this ridiculous exceptionalist mythology stunts the growth of a society over time. when you teach your young and convince yourself that you do no wrong...eventually everything becomes right as long as you are the actor. and so you get textbooks in your schools that omit the horrors of our past, that dedicate two paragraphs to the eradication of this nations first peoples...and even then call it "relocation," "manifest destiny," or "the indian wars" because then we can ignore that our nation, while born of high ideals and beautiful imagery, was built upon crimes against humanity. by focusing only on the good, especially the mythological good, we are condemning ourselves to forever repeating the same storyline...surprised and feigned outrage at yet another example of our failure to live up to the standards we set for others.

which is why I now struggle with the question of prosecution of individuals involved in the decision making process and those carrying out the orders. I worry that it will become just another excuse to push it under the rug and for us, in the future, to simply act as though this episode was a abheration when it wasn't. and we will never learn the full truth as to how and why this happened. and in another generation, we will begin the process anew. would that not simply be adding to the tragedy? are we not better off, for once, trying to learn from this...about our systems and ourselves and how we might actually reach for the ideals we espouse?

blame me...I will wear it...

Monday, April 20, 2009

rambling reflections on those gone...

this weekend I had a whirlwind trip back to the midwest to attend the memorial service for my grandmother, a farm woman from central illinois while a simple woman, she had a subtle, yet incredible strength. born in 1911 she watched the world move in leaps and bounds, outliving her husband Marvin by 30 years, as well as a child, a sibling, and even grandchildren. through it all she remained full of wit and smiles in a way that I wish I could emulate.

in the time since her death I have been thinking much about the legacy we leave behind when we go...and there may be no greater testiment to the character of a person than the quality of family they give to the world. and by that measure, while I may be biased, I would say my grandmother was a rousing success. married to the son of an unwed german immigrant, she raised a family that has spread into one of the more stable and loving expansive environments I can imagine. and for her role as its matriarch, I am forever grateful.

but that is not all she gave to me. when I was young, she, like many grandmothers, would bake cookies for her grandchildren whenever a visit was due. her specialty was chocolate chip, a long-time staple loved by all american youth but one...myself. I hated chocolate chip cookies...for whatever unnatural reason, I just could not stand a good cookie to be ruined by the presence of melted chocolate. and so my grandmother always made two batches, and we always returned with three tubs of cookies - two full of her signature chocolate chip for my three brothers and one overflowing with her secret gem; oatmeal raisin, just for me. and while I may not have realized it at the time, by that simple act, my grandmother was telling me something that every child deserves to hear and to know in their heart...that I was loved and cherished, not by virtue of my place in a class such as grandchildren, but by virtue of my uniqueness. through oatmeal raisin cookies I learned that I was loved by her for one simple reason...that I was me. I cannot overstate the importance of this and the impact it can have on a life as one matures...and for that, I am also forever grateful to her. and while I failed at appropriately and adequately sharing my appreciation with her, I hope she knows.

not too long ago, she sent a letter to my oldest brother. in talking of his family she slipped into rememberances of her own and how it grew. and while it contained some characteristic musings and tangents expected of any of us that may be so lucky as to near 100 years on this earth, it concluded with a powerful sentiment she did not often express..."I sure do miss Marvin." and for that, I sincerely hope beyond hope that there is a heaven, and that my grandfather waited patiently all these years for her to join him again.

and I hope that this heaven has a place for the animals that are dear to us. on sunday morning one of my brother's received word that his four-legged companion of nearly 15 years had passed in his sleep. petey, a little toy fox terrier, had grown up with my brother, who brought petey home as he began his adult life. to this day, I have not seen a dog that more clearly belonged with one person than petey with my brother. petey was there with him through moves, broken relationships and a burgeoning marriage. petey grew with him as he began a career, found a wife, and started a family. and in the process, petey became a part of our family, treated like the first grandchild and nephew.

I like to think that petey knew it was time for him to move on...that he understood that he had done all he could for my brother, and my brother all he could for petey. I like to think that when larry told him goodnight his look was meant to convey what petey could not write..."tell him I'm sorry for leaving this way, but I loved him as no dog has before loved his companion. tell him I will miss him, and he will miss me, but that it is better this way. that I am tired, and I have done all I can for him. and tell him how grateful I am to have found such a beautiful home during my time here and that I will be waiting for him."

I like to think that as petey closed his eyes to sleep that night he was transported back to that first summer, when they were inseparable and a bond that can only exist between man and dog was formed, and he was truly happy. I like to think that he awoke in the farmhouse with grandma and grace, who promptly introduced him to grandpa before letting him loose in the yard to chase the rabbits and terrorize the mice in the barn, and that he'll be there when my brother comes to pick him up and take him home again...and he'll probably have eaten the pie off the windowsill.

mostly, I just like to think they are all happy...which is why I'll keep hoping, for their sake, that there is a heaven...

Wednesday, April 15, 2009

right wing teabaggers, prosecutorial "discretion" and prison populations...

so the right wing, at the behest of our old friend the fox news network, is desperately trying to catch up to the times with some good old fashioned organizing around something, anything. problem is, howard dean figured out that with the new and fast dissemination of information one could utilize all these local networks to come together into a political movement. obama pretty much perfected the model and we got a hybrid of bottom-up and top-down political action that put the first black man into the white house. and now the republicans, desperate to catch up, after failing with the "we've got a woman too" angle and now the "we've got a minority too" angle, they are trying their own community organizing...only without the hybrid...its all top down. and the best part...it involves teabagging. and seriously, nothing is more amusing than the mental image of a bunch of backwards rush limbaugh dittoheads gathering around a circle for some good old fashioned teabagging.

but in all seriousness...what the hell are these people actually protesting? the extra 20 bucks in their paychecks this month? the fact that their savings account still exists? that the right wing spent their future and set them up for a zero balance in their 401k? seriously, what the hell are they yelling about? makes me wonder just how many of them know anything, and I mean anything, about the boston tea party and what was actually going on. I wonder how many of them still repeat the mantra "no taxation without representation" without being able to fathom any more substantial drive behind the revolution, or even the simple act of dumping tea into the sea. if any of them even know which company brought the tea into the harbor...or can understand that the brits had given said company sole access to the tea market. (now, if they are actually protesting corporate dominance of the government, then I'll teabag a few conservatives myself...but somehow I doubt that, especially considering the whole shebang has been promoted incescently by fox).

don't get me wrong, I can't stand piss poor spending of the public wealth either. the fact that our children attend schools in disrepair without enough pencils and paper let alone actual books or quality teachers that aren't overly concerned with teaching to a pointless test that does nothing to improve schooling but costs billions of dollars a year makes me physically ill. the fact that most of my tax dollars are now going to either killing poor brown folks across the world or putting poor brown folks and their white class-mates in cages while the guy down the street is just praying that his heart problems, diabetes and lung issues (compliments of asbestos) don't kill him before medicaire kicks in because we are the only serious western "civilized" nation in the world that won't give him the medicine he needs is disgraceful. but what are these nutjobs complaining about? aren't they most likely to be the same ones that beat their chests and cheerlead us into any war? the same ones that cheer for putting the government back into our bedrooms while complaining that the feds are overstepping their bounds? the same ones that tell immigrants to get the hell out of america and then complain when it costs an extra buck for their produce?

then again...what is my problem? maybe all this nation needs to set it straight is a day of collective teabagging...

was watching good morning america or one of those useless shows this morning (left the radio in the car, so npr was not to be heard) and they were discussing how ridiculous it is to charge high school kids with sex crimes for possessing "child pornography" when they snap nude photos of their boyfriends and girlfriends. they talked to one kid who was 18 and had some nudey photos of his ex who now must register as a sex offender for a long, long time. and apparently vermont has some people that are actually realizing how fucking ludicrous this is and want to close the loophole so that we don't destroy somebody's life for something stupid half of kids are doing before they are even old enough to have a beer. and they had on some crazy lady (the inevitable "we aren't hard enough on crime and we need to protect our children" ranter type) on that claimed that there already were protections in place...protections she called "prosecutorial discretion." well...let me tell you what that actually means...

you see, in theory "prosecutorial discretion" is a wonderful thing because prosecutors are no doubt all perfect beings that are truly interested in justice and what is best for all involved, the community, the alleged victim and the accused. and so, in theory, they choose which crimes are proper to choose, keeping in mind that their job is to do justice...not vengeance. only that ain't how it works in reality. in the real world "prosecutorial discretion" is a bullshit cover for some asshole to find any and all crimes that they might be able to slap on someone, the higher the degree the better. and then try and lock them up as long as possible, because in the end, prosecutors care shit about justice and only care about winning.

that is how, recently in albuquerque, we had a kid on trial for a triple murder when the DA's office admitted it had maybe, at best, a 50/50 shot at a conviction. and then, mid-trial, it turns out the meth-head get-a-favor-from-the-state-if-you-testify witnesses were full of shit. the truck they said he was driving when he supposedly gunned these kids down...wasn't bought until a year later. the trailer park where they supposedly went immediately afterwards to party...hadn't been built yet. and this is what "prosecutorial discretion" gets you...it gets you a murder charge in a case that, if it were a civil matter, would make the headlines as frivulous and lead to calls to hang the trial lawyers from the nearest tree. well, pardon my french, and offense meant to my friends that use it, but fuck prosecutorial discretion and the high horse it rode in on.

new study released indicates that blacks in state prisons for drug offenses dropped dramatically during the last decade. sounds great doesn't it...but I have one question. something tells me it is rather likely that there has been a corresponding uptick in blacks in federal prisons for drug offenses. and if that is the case...thanks bill clinton. I didn't need you to be an asshole on the campaign trail last year to know that you were a complete shitbag posing as one of us. when you see nixon in hell, tell him you did your best.

I'm a creep...

Tuesday, April 14, 2009

free market throwback, bipartisan phooey, and the healing power of baseball...

a few centuries ago a virgin nation struggled to combat pirates off the coast of africa. after that virgin nation grew into the most powerful in the world over the span of those centuries, it once again is struggling to combat pirates off the cost of africa. and this is the beauty of our blind adherence to the "free market" and our force-feeding that adherence to others around the world (but of course only after decades and decades of protectionist policies and utterly un-free markets in the first world had provided the opportunity to get a massive and seemingly insurmountable head start)...we inevitably create conditions that present throwbacks to times long since forgotten (at least by americans...when your nation is only a few centuries old you tend not to have a long-term view of history or the future. in that sense we can be a hell of a lot like civilizations wandering around in the dark before the advent of writing...for coming so far we are still pretty damn close to the starting line). before we discovered (for the god knows umteenth time in history) that the "free market" is a recipe for civilizational collapse, we exported it by force. not military force exactly (although that undoubtedly also added some spice to life), but force nonetheless. "open the market completely or you starve" has basically been the mantra of the first world (of course what the developing world did not know at the time was that it was going to starve regardless...but we needed somebody to give us cheaper shit). and so they did...and so their societies deteriorated and their governments became essentially worthless. and all those starving poor people saw huge commercial shipping vessels heading by, taking their resources for nothing and giving them to us at huge profits. and they felt powerless...and so they did what every group in a similar position has done since the dawn of time...they fought dirty. they picked up a few dusty AK's and a rowboat and sent us back 300 years with the return of piracy. boy, ain't the market grand?

I'm already sick of all the wondering about bipartisanship and whether it will arrive and if obama has shirked a campaign promise. surprise surprise, self-identified republicans hate a moderately progressive liberal. once again, we are blinded by our "gotta have it now" mentality and inability to look long term. whether or not obama "ushers" in a new era of bipartisanship or handholding or bongos and kumbayah will not be clear for some time. hell, FDR was considered a complete shitbag by the right when he was slamming the new deal down their throats. of course now many of those programs are considered models of bipartisanship in their support. already we see signs that obama may be taking the same route as republicans despise him and his policies - while the majority of regular ass people seem to think he is doing a pretty damn good job. regardless...at this point, I am re-convinced that we are all fucked anyway...at least we're not completely embarrased by the fool that represents us...

walt whitman once said "I see great things in baseball. It's our game -- the American game. It will take our people out of doors, fill them with oxygen, give them a larger physical stoicism. Tend to relieve us from being a nervous, dyspeptic set. Repair those losses, and be a blessing to us." and while I can personally vouch for the mr. whitman on the physical benefits a day spent in the sun looking down upon the unmistakable lush green of a ball field, baseball plays a much more significant role than preventing gastrointestinal disorders...it can heal, it is the great equalizer. there are few places in which the promises of the declaration of independence are more apparent than on a baseball diamond. all one needs is a stick and ball to be on equal ground. and so, tomorrow, 62 years to the day since jackie robinson helped to change baseball and the united states forever, all of major league baseball will wear the number 42 to remember how difficult it has been, and continues to be, for the united states to remember the promises of its birth. and at a time when our society again strives to crush equality, I wonder how much the world could change if some future hall of famer went home to join another man in bed each night.

Friday, April 03, 2009

Another Step Towards Equality in the Pursuit of Life, Liberty and Happiness...

Today the Supreme Court of Iowa issued a unanimous decision in Varnum v. Brien (Westlaw cite 2009 WL 874044...also available via the Iowa Judiciary Website at http://www.judicial.state.ia.us/Supreme_Court/Opinions/). In reaching another rung on the ladder of equality, the Iowa Supremes determined that statutes limiting the institution of civil marriage to couples with both a man and a woman violated the most basic of our founding virtues: equal protection before the law:

"If gay and lesbian people must submit to different treatment without an exceedingly persuasive justification, they are deprived of the benefits of the principle of equal protection upon which the rule of law is founded. Iowa Code section 595.2 denies gay and lesbian people the equal protection of the law promised by the Iowa Constitution."

The following are excerpts from the rather lengthy, but compelling opinion (with citations largely omitted):


This lawsuit is a civil rights action by twelve individuals who reside in six communities across Iowa. Like most Iowans, they are responsible, caring, and productive individuals. They maintain important jobs, or are retired, and are contributing, benevolent members of their communities. They include a nurse, business manager, insurance analyst, bank agent, stay-at-home parent, church organist and piano teacher, museum director, federal employee, social worker, teacher, and two retired teachers. Like many Iowans, some have children and others hope to have children. Some are foster parents. Like all Iowans, they prize their liberties and live within the borders of this state with the expectation that their rights will be maintained and protected-a belief embraced by our state motto.

Despite the commonality shared with other Iowans, the twelve plaintiffs are different from most in one way. They are sexually and romantically attracted to members of their own sex. The twelve plaintiffs comprise six same-sex couples who live in committed relationships. Each maintains a hope of getting married one day, an aspiration shared by many throughout Iowa.

Unlike opposite-sex couples in Iowa, same-sex couples are not permitted to marry in Iowa.

...

A statute inconsistent with the Iowa Constitution must be declared void, even though it may be supported by strong and deep-seated traditional beliefs and popular opinion.

...

Our responsibility, however, is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time. The framers of the Iowa Constitution knew, as did the drafters of the United States Constitution, that times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress, and as our constitution endures, persons in every generation can invoke its principles in their own search for greater freedom and equality.

...

A classification persists until a new understanding of equal protection is achieved. The point in time when the standard of equal protection finally takes a new form is a product of the conviction of one, or many, individuals that a particular grouping results in inequality and the ability of the judicial system to perform its constitutional role free from the influences that tend to make society's understanding of equal protection resistant to change. As Justice Oliver Wendell Holmes poignantly said, It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.

...

The same-sex-marriage debate waged in this case is part of a strong national dialogue FN5 centered on a fundamental, deep-seated, traditional institution that has excluded, by state action, a particular class of Iowans. This class of people asks a simple and direct question: How can a state premised on the constitutional principle of equal protection justify exclusion of a class of Iowans from civil marriage?

...

the plaintiffs are similarly situated compared to heterosexual persons. Plaintiffs are in committed and loving relationships, many raising families, just like heterosexual couples. Moreover, official recognition of their status provides an institutional basis for defining their fundamental relational rights and responsibilities, just as it does for heterosexual couples. Society benefits, for example, from providing same-sex couples a stable framework within which to raise their children and the power to make health care and end-of-life decisions for loved ones, just as it does when that framework is provided for opposite-sex couples.

...

Thus, the right of a gay or lesbian person under the marriage statute to enter into a civil marriage only with a person of the opposite sex is no right at all. Under such a law, gay or lesbian individuals cannot simultaneously fulfill their deeply felt need for a committed personal relationship, as influenced by their sexual orientation, and gain the civil status and attendant benefits granted by the statute. Instead, a gay or lesbian person can only gain the same rights under the statute as a heterosexual person by negating the very trait that defines gay and lesbian people as a class-their sexual orientation.

...

The County does not, and could not in good faith, dispute the historical reality that gay and lesbian people as a group have long been the victim of purposeful and invidious discrimination because of their sexual orientation. The long and painful history of discrimination against gay and lesbian persons is epitomized by the criminalization of homosexual conduct in many parts of this country until very recently. See Lawrence, 539 U.S. at 578-79, 123 S.Ct. 2483-84, 156 L.Ed.2d at 520 (invalidating criminalization of homosexual sodomy in 2003). Additionally, only a few years ago persons identified as homosexual were dismissed from military service regardless of past dedication and demonstrated valor. Public employees identified as gay or lesbian have been thought to pose security risks due to a perceived risk of extortion resulting from a threat of public exposure. School-yard bullies have psychologically ground children with apparently gay or lesbian sexual orientation in the cruel mortar and pestle of school-yard prejudice. At the same time, lesbian and gay people continue to be frequent victims of hate crimes. See Criminal Justice Information Servs. Div., FBI, Hate Crime Statistics 2007, http://www.fbi.gov/ucr/hc2007/victims.htm (according to FBI-collected data, the only hate crimes occurring more frequently than sexual-orientation-motivated hate crimes are crimes based on race or religious bias).

...

sexual orientation is broadly recognized in Iowa to be irrelevant to a person's ability to contribute to society.

...

sexual orientation forms a significant part of a person's identity... Sexual orientation influences the formation of personal relationships between all people-heterosexual, gay, or lesbian-to fulfill each person's fundamental needs for love and attachment. Accordingly, because sexual orientation is central to personal identity and may be altered [if at all] only at the expense of significant damage to the individual's sense of self, classifications based on sexual orientation are no less entitled to consideration as a suspect or quasi-suspect class than any other group that has been deemed to exhibit an immutable characteristic. Sexual orientation is not the type of human trait that allows courts to relax their standard of review because the barrier is temporary or susceptible to self-help.

...

Gay persons have been subjected to and stigmatized by a long history of purposeful and invidious discrimination that continues to manifest itself in society. The characteristic that defines the members of this group-attraction to persons of the same sex-bears no logical relationship to their ability to perform in society, either in familial relations or otherwise as productive citizens. Because sexual orientation is such an essential component of personhood, even if there is some possibility that a person's sexual preference can be altered, it would be wholly unacceptable for the state to require anyone to do so. Gay persons also represent a distinct minority of the population. It is true, of course, that gay persons recently have made significant advances in obtaining equal treatment under the law. Nonetheless, we conclude that, as a minority group that continues to suffer the enduring effects of centuries of legally sanctioned discrimination, laws singling them out for disparate treatment are subject to heightened judicial scrutiny to ensure that those laws are not the product of such historical prejudice and stereotyping. [citing the Connecticut Supreme Court]

...

Thus, the question we must answer is whether excluding gay and lesbian people from civil marriage is substantially related to any important governmental objective.

The County has proffered a number of objectives supporting the marriage statute. These objectives include support for the traditional institution of marriage, the optimal procreation and rearing of children, and financial considerations.

...

A specific tradition sought to be maintained cannot be an important governmental objective for equal protection purposes, however, when the tradition is nothing more than the historical classification currently expressed in the statute being challenged. When a certain tradition is used as both the governmental objective and the classification to further that objective, the equal protection analysis is transformed into the circular question of whether the classification accomplishes the governmental objective, which objective is to maintain the classification. In other words, the equal protection clause is converted into a barren form of words' when discrimination is made an end in itself.... It permits a classification to be maintained "for its own sake." Moreover, it can allow discrimination to become acceptable as tradition and helps to explain how discrimination can exist for such a long time. If a simple showing that discrimination is traditional satisfies equal protection, previous successful equal protection challenges of invidious racial and gender classifications would have failed. Consequently, equal protection demands that the classification ( [that is], the exclusion of gay [persons] from civil marriage) must advance a state interest that is separate from the classification itself.

...

The County has simply failed to explain how the traditional institution of civil marriage would suffer if same-sex civil marriage were allowed. There is no legitimate notion that a more inclusive definition of marriage will transform civil marriage into something less than it presently is for heterosexuals. Because the County offers no particular governmental reason underlying the tradition of limiting civil marriage to heterosexual couples, we press forward to consider other plausible reasons for the legislative classification.

...

The research appears to strongly support the conclusion that same-sex couples foster the same wholesome environment as opposite-sex couples and suggests that the traditional notion that children need a mother and a father to be raised into healthy, well-adjusted adults is based more on stereotype than anything else.

...

If the marriage statute were truly focused on optimal parenting, many classifications of people would be excluded, not merely gay and lesbian people.... If the statute was truly about the best interest of children, some benefit to children derived from teh ban on same-sex civil marriages would be observable. Yet, the germane analysis does not show how the best interests of children of gay and lesbian parents, who are denied an environment supported by the benefits of marriage under the statute, are served by the ban. Likewise, the exclusion of gays and lesbians from marriage does not benefit the interests of those children of heterosexual parents, who are able to enjoy the environment supported by marriage with or without the inclusion of same-sex couples.

...

a classification that limits civil marriage to opposite-sex couples is simply not substantially related to the objective of promoting the optimal environment to raise children. This conclusion suggests stereotype and prejudice, or some other unarticulated reason, could be present to explain the real objectives of the statute.

...

Gay and lesbian persons are capable of procreation. Thus, the sole conceivable avenue by which exclusion of gay and lesbian people from civil marriage could promote more procreation is if the unavailability of civil marriage for same-sex partners caused homosexual individuals to become heterosexual in order to procreate within the present traditional institution of civil marriage. The briefs, the record, our research, and common sense do not suggest such an outcome. Even if possibly true, the link between exclusion of gay and lesbian people from marriage and increased procreation is far too tenuous to withstand heightened scrutiny. Specifically, 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.

...

The stability of opposite-sex relationships is an important governmental interest, but the exclusion of same-sex couples from marriage is not substantially related to that objective.

...

Having examined each proffered governmental objective through the appropriate lens of intermediate scrutiny, 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.

...

Now that we have addressed and rejected each specific interest advanced by the County to justify the classification drawn under the statute, we consider the reason for the exclusion of gay and lesbian couples from civil marriage left unspoken by the County: religious opposition to same-sex marriage. The County's silence reflects, we believe, its understanding this reason cannot, under our Iowa Constitution, be used to justify a ban on same-sex marriage.

While 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. Consequently, we address the religious undercurrent propelling the same-sex marriage debate as a means to fully explain our rationale for rejecting the dual-gender requirement of the marriage statute.

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.

Yet, such views are not the only religious views of marriage. As demonstrated by amicus groups, other equally sincere groups and people in Iowa and around the nation have strong religious views that yield the opposite conclusion.

...

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.

...

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.

The only legitimate inquiry we can make is whether [the statute] is constitutional. If it is not, its virtues ... cannot save it; if it is, its faults cannot be invoked to accomplish its destruction. If the provisions of the Constitution be not upheld when they pinch as well as when they comfort, they may as well be abandoned.

...

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.

...

We are firmly convinced the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective. The legislature has excluded a historically disfavored class of persons from a supremely important civil institution without a constitutionally sufficient justification. There is no material fact, genuinely in dispute, that can affect this determination.

We have a constitutional duty to ensure equal protection of the law. Faithfulness to that duty requires us to hold Iowa's marriage statute, Iowa Code section 595.2, violates the Iowa Constitution. To decide otherwise would be an abdication of our constitutional duty. If gay and lesbian people must submit to different treatment without an exceedingly persuasive justification, they are deprived of the benefits of the principle of equal protection upon which the rule of law is founded. Iowa Code section 595.2 denies gay and lesbian people the equal protection of the law promised by the Iowa Constitution.



Somewhere, Thurgood Marshall is smiling on the Midwest.