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The Courts Push Aside Arguments to Insert Pre-conceived Opinion

The Iowa Supreme Court's Marriage Creation Myth
Monday, April 13, 2009
By Peter Sprigg

On April 3, the Iowa Supreme Court struck down the state's law defining marriage as the union of a man and a woman. The court devoted four pages of its decision to attacking a straw man -- "religious opposition to same-sex marriage" -- which defendant Polk County had not even offered among its five reasons for upholding the existing marriage law.

You might say that the court made a point, implicitly, of rejecting what secularists call the "creation myth" of Adam and Eve as a basis for defining marriage. Yet the court relied on a "creation myth" of its own to justify its decision-a myth not about the origin of man, but about the origin of marriage as a social institution.

Marriage exists in virtually every human society, of every culture and every religion-and for thousands of years, it has always and everywhere been a male-female union. Even if we exclude divine creation or revelation as an explanation for this (as modern courts insist), we can do a thought exercise on how it might have come about.

Imagine yourself as a member of a primitive human society, and consider the following two scenarios for the origin of marriage:

Scenario #1 - "We've noticed that sometimes an adult human being will form a
strong pair-bond with another adult human being. These two individuals will choose to share a dwelling, share economic resources with each other, and make a commitment to stay together for an extended period of time. Let's create a social institution to provide public affirmation for these generic pair-bonds between adult human beings, and let's call that institution marriage.' But because we dislike gay people, let's make sure they can't participate!"

Or, Scenario #2 - "We've noticed that when a man and a woman have sex with
each other, the woman sometimes gets pregnant and has a baby. We need babies for our society to continue into the future. And we've noticed that it's easier to raise those babies if the mother and father stay together and cooperate in raising them. We know that there are many other relationships between human beings that are important, but because this kind of relationship between a man and a woman serves such an important function for society as a whole, let's create a social institution that will encourage, protect, and regulate it. We'll call it 'marriage.'"

Could anyone possibly argue -- with a straight face -- that the first scenario is a more plausible explanation for the origin of marriage than the second? Yet that is, in effect, what the Iowa Supreme Court ruled.

The court stated that the marriage laws "are rooted in the necessity of providing an institutional basis for defining the fundamental relational rights and responsibilities of persons in organized society." This is true as a statement about marriage; but wholly inadequate as a definition of marriage. It is like saying that "automobiles are vehicles for transporting persons from one location to another." The statement is indisputably true. But it is not a definition of an "automobile," because it is also true of hang-gliders, bicycles, and skateboards-things which clearly are not automobiles.

The constitutional principle of "equal protection," on which the court rested its decision, does not mean that the law must treat all individuals (or couples, or groupings) the same way in everything. It means only that those "similarly situated with respect to the legitimate purposes of the law" must be treated alike.

The county officials in the Iowa case argued that the homosexual couples who sued "are not similarly situated to opposite-sex couples . . . because the plaintiffs cannot 'procreate naturally.'" The court viewed this reasoning as circular, claiming that "a court cannot simply look at the trait used by the legislature to define a classification . . . and conclude that a person without that trait is not similarly situated to persons with the trait."

But it is the court's reasoning that is circular. The fact that same-sex couples cannot procreate naturally is not merely "the trait used by the legislature." It is fundamental to "the legitimate purposes of the law."

Since the procreative purpose of marriage excludes same-sex couples by logic
(not by "deep-seated prejudice," as the court claims), the only way for the court to achieve the political end it obviously desired was to broaden the "purposes" of the marriage law into something that would not inherently exclude same-sex couples (i.e., "an institutional basis for . . . relational rights and responsibilities").

To put it another way, the court unilaterally changed the definition of marriage to include same-sex couples, and then used that as justification for ordering a change in the definition of marriage to include same-sex couples.

It doesn't get much more circular than that.

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