News came at the end of August that was startling – marriage, we discovered, is an irrational institution. Or at least, marriage as always understood in American history, that is, marriage between one man and one woman, is. (Remember that outlawing polygamy was a condition for admitting Utah into the Union.) Judge Robert Hanson of Iowa ruled, in Varnum v. Brien, that state law defining marriage as historically and traditionally understood violated the Iowa constitution and irrationally discriminated against homosexual couples seeking to marry.

Though, as noted, the decision did not rely upon the provisions of the United States constitution, it relied upon parallel provisions of the Iowa constitution, as well as upon federal jurisprudence about how such provisions should be interpreted. For instance, what does “equal protection” mean? Hanson looked,   among other things, to an opinion of Justice Sandra Day O’Connor of the U.S. Supreme Court in Lawrence v. Texas (from 2003). In doing so, however, Hanson illustrated several serious flaws in his own legal reasoning. First, O’Connor’s opinion was a concurrence; the case was decided on a different legal theory; since a majority of the court backed the other theory (“due process”), O’Connor’s views are legally irrelevant, that is, she did not speak for “the Court” in its understanding of what “equal protection” means. Second, Lawrence had nothing to do with homosexual marriage. Rather, it concerned whether a state statute could selectively penalize homosexual conduct. In other words, the statute prohibited certain activities when homosexuals engaged in them, but not when other people did. The Court held this was constitutionally prohibited (under “due process”). The Court expressly noted that it was not deciding the question whether homosexuals had a constitutional right to marry (though the Court noted in passing that homosexuals could try to convince their fellow citizens to grant such a right).

Another fundamental flaw with Hanson’s opinion is his analogy to racial discrimination. Here is his reasoning: the Supreme Court in Loving v. Virginia showed that state laws prohibiting persons of the opposite race from marrying was irrational (and violated the U.S. constitution); for the same reasons, Iowa’s law prohibiting homosexual persons from marrying is also irrational (and violates Iowa’s constitution). But the two situations are not comparable at all. The race of a person is, indeed, irrelevant as to whether that person can satisfy the requirements for a person to enter into a valid marriage; hence, laws prohibiting him from doing so are “discriminatory” because they are “irrational.” However, no homosexuals of the same sex can satisfy the requirements of marriage, i.e., that one be a man and one be a woman. By holding otherwise, Hanson was saying that it is utterly without foundation in reason to define marriage as requiring one man and one woman. 

Hanson said: “Only same-sex couples cannot marry.” (Page 59) This nicely puts it, and illustrates why his opinion is clearly erroneous. Individuals, not couples or groups, have rights. No individual in Iowa is being denied the right to marry. Rather, individuals are being told (by the law) that there are limitations on whom they can marry, i.e., on the human combinations that will be recognized as “marriage.” There is nothing irrational about this. Four individuals cannot all marry one another; a brother cannot marry a sister; a child cannot marry anyone. All these restrictions on human choice are the consequence of the fact that “marriage,” like all words, has a meaning in America, i.e., the union of one man and one woman. 

From the press reports, this ruling came as a surprise to many Iowans. Some politicians railed that “groups” would exploit this ruling for “political” ends. Such complaints are unconvincing. Remember, in Lawrence, the U.S. Supreme Court said homosexuals were, of course, free to try to convince their fellow citizens to grant them the right to marry, i.e., to convince them to change the definition of marriage. But that is not what happened in Iowa. There the state legislature had passed laws prohibiting discrimination against homosexuals in various settings, but it had also passed a law defining “marriage” as historically and traditionally understood. In effect, Judge Hanson sought to take the matter out of the hands of the people, of the citizens of Iowa. The public debate envisioned by Lawrence was, thus, short-circuited. It seems quite likely that the Iowa supreme court will overturn this badly reasoned decision in short order. Still, however much Hanson wished to take the matter from the people, he has achieved just the opposite; he has energized efforts to amend the Iowaconstitution to define marriage as between one man and one woman. Rulings like Hanson’s illustrate the problem with judicial activists. The only remedy to such activism is, in fact, politics. The people must reclaim their right to rule themselves.