Gambling, greyhounds, and gay marriage: How the Iowa Supreme Court can use the rational-basis test to address Varnum v. Brien

Iowa Law Review

Volumn 94, Issue 1, 2008, Pages 413-448

  Wieland, Steven P ^a  

^a UNIVERSITY OF IOWA COLLEGE OF LAW   (United States)

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EID: 59649104671     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (355)

1. Varnum v. Brien, No. CV5965 (Iowa Dist Ct. Aug. 30, 2007), appeal filed, No. 05771 (Iowa 2007), available at http://data.lambdalegal. org/pdf/legal/varnum/varnum-d-08302007-ia-district.pdf.
2. Iowa Judge Stays Ruling That OK'd Gay Marriage, MSNBC.COM, Aug. 31, 2007, http:// www.msnbc.msn.com/id/20531786/;
3. Teddy Davis, Iowa Gay Marriage Ruling Stirs '08 Race, ABC NEWS.COM, Aug. 31, 2007, http://abcnews.go.com/Politics/Decision2008/ story?id=3548239.
4. See Dan Gilgoff, Gay Rights Advance May Be Pyrrhic Victory, POLITICO, Sept. 5, 2007, http://www.politico.com/news/stories/0907/ 5659.html (predicting political damage to the gay-rights movement due to the Varnum ruling).
5. See Posting of Michael Cooper to The Caucus Blog, Iowa + Gay Marriage = Candidate Statement, http://thecaucus.blogs.nytimes.com/2007/08/30/ iowa-gay-marriage-candidate-statement/ (Aug. 30, 2007, 18:49 EST) (referring to Mitt Romney's statement condemning the ruling as the act of an "activist court").
6. David Pitt, Iowa Gay Marriage Applications Halted, USA TODAY.COM, Aug. 31, 2007, http://www.usatoday.com/news/nation/2007-08- 30-338900618-x.htm.
7. Lydia Saad, Tolerance for Gay Rights at High-Water Mark, GALLUP, May 29, 2007, http:// www.gallup.com/poll/27694/Tolerance-Gay-Rights-HighWater- Mark.aspx.
8. See, e.g., Alissa Friedman, The Necessity for State Recognition of Same-Sex Marriage: Constitutional Requirements and Evolving Notions of Family, 3 BERKELEY WOMEN'S L.J. 134, 134-70 (1987) (explaining the constitutional basis for upholding same-sex marriages);
9. Karen M. Loewy, The Unconstitutionality of Excluding Same-Sex Couples from Marriage, 38 NEW ENG. L. REV. 555, 555-60 (2004) (discussing various arguments against gay marriage and why they should fail);
10. Vincent J. Samar, Privacy and Same-Sex Marriage: The Case for Treating Same-Sex Marriage as a Human Right, 68 MONT. L. REV. 335, 336-48 (2007) (arguing that same-sex marriage is a human right that society should protect).
11. See generally WILLIAM N. ESKRIDGE, JR., THE CASE FOR SAME-SEX MARRIAGE: FROM SEXUAL LIBERTY TO CFVILIZED COMMITMENT (1996) (arguing for same-sex marriage);
12. JASON PLERCESON, COURTS, LIBERALISM, AND RIGHTS: GAY LAW AND POLITICS IN THE UNITED STATES AND CANADA (2005) (providing a broad history of gay rights in North America);
13. Richard A. Epstein, Caste and the Civil Rights Laws: From Jim Crow to Same-Sex Marriages, 92 MICH. L. REV. 2456 (1994) (providing an analysis of the justifications of civil-rights law).
14. Saad, supra note 6.
15. Adrienne Butcher, Note, Selective Constitutional Analysis in Lawrence v. Texas: An Exercise in Judicial Restraint or a Willingness to Reconsider Equal Protection Classification for Homosexuals?, 41 HOUS. L. REV. 1407, 1430 (2004) ("[P]ost-Lawrence legislators will be hardpressed to conjure legitimate public interests to justify antihomosexual discrimination considering both Lawrence's decriminalization of homosexual sex and the decline of moralitybased legislation.").
16. See infra Part IV.D (discussing how a minimalist decision could avoid backlash against the gay-rights movement).
17. See infra Part III.B (describing the court's novel application of rational-basis review in Racing Ass'n of Central Iowa v. Fitzgerald (RACI II), 675 N.W.2d 1 (Iowa 2004)).
18. RACI II, 675 N.W.2d at 3-5.
19. Id. at 4.
20. See Richard M. Lombino, II, Gay Marriage: Equality Matters, 14 S. CAL. REV. L. & WOMEN'S STUD. 3, 11-12 (2004) ("[T]he Supreme Court has found that the right to marry is a fundamental liberty protected by the Constitution through both the Equal Protection Clause and the Due Process Clause."). The fundamental nature of the right to marry has received treatment in numerous legal works.
21. See, e.g., 16A AM. JUR. 2D Constitutional Law § 575 (1998) (identifying marriage as a fundamental right) ;
22. Kenneth L. Karst, The Liberties of Equal Citizens: Groups and the Due Process Clause, 55 UCLA L. REV. 99, 123-26 (2007) (discussing the early cases defining marriage as a fundamental right);
23. Randi E. Frankle, Comment, Does a Marriage Really Need Sex?: A Critical Analysis of the Gender Restriction on Marriage, 30 FORDHAM URB. L.J. 2007, 2009-10 (2003) (summarizing case law on this point).
24. Loving v. Virginia, 388 U.S. 1 (1967).
25. Id. at 4-7, 12-13.
26. Zablocki v. Redhail, 434 U.S. 374, 382-87 ( 1978).
27. Turner v. Safley, 482 U.S. 78, 82 (1987);
28. see also Boddie v. Connecticut, 401 U.S. 371, 372-83 (1971) (invalidating a law requiring divorce seekers to pay filing fees and court costs because it unduly interfered with the right to marry).
29. Turner, 482 U.S. at 95-96;
30. see also Ariel J. Graff, Free Exercise and Hybrid Rights: An Alternative Perspective on the Constitutionality of Same-Sex Marriage Bans, 29 U. HAW. L. REV. 23, 44 (1997) ("[In Tumer,] the Court recognized that individuals' fundamental freedom to marry is not limited to the procreative context, but rather exists as an independent constitutional right").
31. See infra Part II.A.2 (describing these cases in greater detail).
32. EVAN GERSTMANN, SAME-SEX MARRIAGE AND THE CONSTITUTION 14-16 (2004).
33. Id. A prototypical strict-scrutiny classification is race.
34. See Palmore v. Sidoti, 466 U.S. 429, 432 (1984) ("[Race] classifications are subject to the most exacting scrutiny.").
35. GERSTMANN, supra note 21, at 15.
36. 16B AM. JUR. 2D Constitutional Law § 813 (2008).
37. 16A AM. JUR. 2D Constitutional Law § 387 (1998).
38. See infra Part II.A.1 (describing the deferential rational basis test).
39. Equal. Found, of Greater Cincinnati, Inc. v. City of Cincinnati, 54 F.3d 261, 268 (6th Cir. 1995);
40. see also High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 571 (9th Cir. 1990) (refusing to extend protected status to homosexuals);
41. Doe v. Webster, 769 F. Supp. 1, 2 (D.D.C. 1991) ("It is widely held that the appropriate level of equal protection constitutional analysis to be employed in cases involving homosexuals is 'rational basis' analysis.").
42. Cass R. Sunstein, What Did Lawrence Hold? Of Autonomy, Desuetude, Sexuality, and Marriage, 2003 SUP. CR. REV. 27, 35.
43. Id. at 37-38 (suggesting that the Court is reluctant to expand the list of fundamental substantive-due-process freedoms);
44. see also supra notes 14-19 and accompanying text (stating that marriage is a fundamental right that could be coupled with more rigorous rational-basis analysis to strike down same-sex-marriage bans).
45. See Daniel A. Crane, Faith, Reason, and Bare Animosity, 21 CAMPBELL L. REV. 125, 137 (1999) (stating that rational basis "has been particularly lax").
46. E.g., Nordlinger v. Hahn, 505 U.S. 1, 11 (1992) (demonstrating the Court's deferential approach under the rational-basis test) ;
47. Jefferson v. Hackney, 406 U.S. 535, 546 (1972) (same);
48. McGowan v. Maryland, 366 U.S. 420, 426 (1961) (same).
49. Neelum J. Wadhwani, Note, Rational Reviews, Irrational Results, 84 TEX. L. REV. 801, 811 (2006);
50. see also Madden v. Kentucky, 309 U.S. 83, 88 (1940) (challenger must "negative every conceivable basis" for the law);
51. Andrew Koppelman, Romer v. Evans and Invidious Intent, 6 WM. Sc MARY BILL RTS. J. 89, 114-15 (1998) (stating that courts will uphold laws whether or not the "conceivable 'state of facts'" actually exists, whether the state of facts would be convincing if it did exist, or whether the classification's supporters ever thought of it in the first place
52. (quoting LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW 1443 (2d ed. 1988))).
53. Williamson v. Lee Optical of OkIa., Inc., 348 U.S. 483, 486 (1955).
54. Id. at 487 (stating that the state legislature could have concluded that eyeglass users needed new prescriptions every time they lost or broke lenses).
55. FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 315 (1993)
56. (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)).
57. Id. at 323 n.3 (Stevens, J., concurring);
58. Clark Neily, One Test, Two Standards: The Onand-Off Role of "Plausibility " in Rational Basis Review, 4 GEO. J.L. & PUB. POL'Y 199, 203 (2006).
59. Wadhwani, supra note 32, at 808.
60. Crane, supra note 30, at 138.
61. Cass R. Sunstein, Foreword: Leaving Things Undecided, 110 H.ARV. L. REV. 4, 60 (1996).
62. In McDonald v. Board of Election Commissioners, Chief Justice Earl Warren described the rational-basis test as such, " [S] tatutory classifications will be set aside only if no grounds can be conceived to justify them."
63. McDonald v. Bd. of Election Comm'rs, 394 U.S. 802, 809 (1969). However, by 1972, commentators had noted a shift in some U.S. Supreme Court cases toward a more stringent standard.
64. See Gerald Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 18-20 (1972)
65. [hereinafter Evolving Doctrine] (noting the new "bite" in the Court's rational-basis cases);
66. see also Gerald Gunther, Commentary, 71 CHI.-KENT L. REV. 813, 814 (1996) (noting that the Burger Court's rational-basis cases were considerably less deferential than those of the Warren Court).
67. See Levy v. Louisiana, 391 U.S. 68, 70 (1968) (striking down a classification against illegitimate children in a rational-basis inquiry).
68. Id.
69. Id. at 71.
70. Id. at 71-72.
71. Id. at 71 (internal citations omitted). The Court continued to rule in this area under the rational-basis standard until it began overtly applying intermediate scrutiny in 1977.
72. See Trimble v. Gordon, 430 U.S. 762, 767 (1977) (holding that "classifications based on illegitimacy fall in a 'realm of less than strictest scrutiny'" that "'is not a toothless one'" (citation omitted)).
73. See generally Benjamin G. Ledsham, Note, Means to Legitimate Ends: Same-Sex Marriage Through the Lens of Illegitimacy-Based Discrimination, 28 CARDOZO L. REV. 2373 (2007) (discussing the intermediate-scrutiny standard applied to state bans on same-sex marriage and their effect on illegitimate children).
74. USDAv. Moreno, 413 U.S. 528, 537 (1973).
75. Id. (quoting the California Director of Social Welfare).
76. Id. at 534.
77. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 447-49 (1985). Justice White decided that the mentally retarded as a class were both too amorphous and too well protected by statutes to warrant protected status.
78. Id. at 442-47.
79. Id. at 447-49.
80. Id. at 450. In another case, the Court struck down a Texas law denying access to public schools to children of illegal immigrants.
81. Plyler v. Doe, 457 U.S. 202, 227 (1982). While it is unclear exactly which standard of review the Court applied, it rejected the state's proffered justifications for the law as reflecting its "intention to discriminate."
82. Id.;
83. see also Crane, supra note 30, at 142 (interpreting the holding in Plyler as stating that "a mere dislike of the presence of illegal aliens within the borders of the United States would not justify the visitation of punishment upon their innocent children");
84. Robert C. Farrell, Successful Rational Basis Claims in the Supreme Court from the 1971 Term Through Romer v. Evans, 32 IND. L. REV. 357, 382 (1999) (stating that the Court in Plyler demanded more under rational-basis review than it had ordinarily).
85. See generally Rebecca E. Greenlee, Equal Protection Analysis Bite Grows Stronger: Plyler v. Doe, 17 REV. JUR. U. INTERAMERICANA P.R. 335 (1983).
86. Baker v. Vermont, 744 A2d 864, 886 (Vt. 1999);
87. Developments in the Law: The Law of Marriage and Family, 116 HARV. L. REV. 1996, 2019-20 (2003) (stating that the Baker court declined to define homosexuals as a suspect classification or to identify a fundamental right in gay marriage and instead applied a more exacting, state-specific, rational-basis analysis in order to avoid appearing to apply its own value judgment).
88. Baker, 744 A.2d at 871-74, 872 n.5.
89. Id. at 872.
90. Id. at 886.
91. Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 968 (Mass. 2003).
92. Id. at 960-61;
93. see also Renée M. Landers, A Marriage of Principles: The Relevance of Federal Precedent and International Sources of Law in Analyzing Claims for a Right to Same-Sex Marriage, 41 NEW ENG. L. REV. 683, 698 (2007) (discussing the SJC's use of a rational-basis standard of review in Goodridge).
94. Goodridge, 798 N.E.2d at 968.
95. Baker v. Vermont, 744 A.2d 864, 872-73 (Vt. 1999).
96. Goodridge, 798 N.E.2d at 960 n.20.
97. Lewis v. Harris, 908 A2d 196, 212 (N.J. 2006)
98. (citing Caviglia v. Royal Tours of Am., 842 A.2d 125, 132 (N.J. 2004)).
99. In equal-protection cases, the New Jersey Supreme Court balances the nature and significance of the affected right, how extensively the government intrudes on that right, and the public necessity for doing so. Greenberg v. Kimmelman, 494 A.2d 294, 302 (N.J. 1985). This is a sliding-scale approach where the more important the personal right is, the greater the public justification must be to sustain the law invading that right.
100. Taxpayers Ass'n of Weymouth Twp., Inc. v. Weymouth Twp., 364 A.2d 1016, 1036 (N.J. 1976).
101. Lewis, 908 A.2d at 218 ("[W]e cannot find a legitimate public need for an unequal legal scheme of benefits and privileges.").
102. Id. at 221. The court stated that it would reserve ruling on whether New Jersey must allow actual marriage for same-sex couples partially to avoid stumbling further into the "cultural clash" over the divisive issue.
103. Id.
104. For more discussion on the various standards that state courts employ in gay-marriage-prohibition cases, see Joseph R. Grodin, Same-Sex Relationships and State Constitutional Analysis, 43 WILLAMETTE L. REV. 235, 240-46 (2007).
105. Andersen v. King County, 138 P.3d 963, 980 (Wash. 2006) ("Under the rational basis standard, the court may assume the existence of any conceivable state of facts that could provide a rational basis for the classification."
106. (citing Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001))).
107. Conaway v. Deane, 932 A.2d 571, 629 (Md. 2007) ("A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it."
108. (quoting McGowan v. Maryland, 366 U.S. 420, 426 (1961))). Maryland also found that same-sex marriages were not a fundamental right.
109. Id. at 627.
110. Hernandez v. Robles, 855 N.E.2d 1, 7 (N.Y. 2006).
111. Id. An intermediate appellate court in Indiana has also upheld that state's same-sexmarriage prohibition under a conventional rational-review test.
112. See Morrison v. Sadler, 821 N.E.2d 15, 22 (Ind. Ct. App. 2005) (stating that the law's challenger must negate every conceivable basis for the law and that the court will not inquire into the legislature's actual motives).
113. IOWA CONST, art. I, § 1.
114. 1997 Iowa Acts 763.
115. Paul Benjamin Linton, Same-Sex "Marriage" Under State Equal Rights Amendments, 46 ST. LOUIS U. L.J. 909, 921 (2002).
116. IOWA CONST, art. I, § 6.
117. H. File 382, 77th Gen. Assem., Reg. Sess. (Iowa 1998), available at http://www2.legis.state.ia.us/GA/77GA/legislation/HF/00300/HF00382/ 980408.html;
118. IOWA CODE § 595.2(1) (2007);
119. see also Andrea L. Clausen, Note, Marriage of Same-Sex Couples in Iowa: Iowa Code § 595.2 Is Not Constitutional Under the Iowa Constitution Article I, §§ 1, 6, and 9, 6 J. GENDER RACE & JUST. 451, 455 (2002) (describing how the bill also provided for establishing a Domestic Partners Task Force to assess issues "related to and faced by domestic partners," but the task force never formed).
120. IOWA CODE § 595.2(1).
121. Bowers v. Polk County Bd. of Supervisors, 638 N.W.2d 682, 690 (Iowa 2002) ("We usually deem the federal and state due process clauses to be identical in scope, import and purpose.");
122. Linton, supra note 72, at 922 (stating that the Iowa Constitution "should not be interpreted to require recognition of same-sex marriages in violation [of] the public policy of the State of Iowa, if the Equal Protection Clause is not so interpreted").
123. Sanchez v. State, 692 N.W.2d 812, 817 (Iowa 2005)
124. (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985)).
125. Sherman v. Pella Corp., 576 N.W.2d 312, 317 (Iowa 1998).
126. See Sioux City Police Officers' Ass'n v. City of Sioux City, 495 N.W.2d 687, 695-96 (Iowa 1993)
127. (citing Zablocki v. Redhail, 434 U.S. 374, 386 (1978)) (stating that marriage is a fundamental right);
128. State v. Hartog, 440 N.W.2d 852, 854 (Iowa 1989) (stating that strict scrutiny applies when a statute invades a fundamental right).
129. See Ames Rental Prop. Ass'n v. City of Ames, 736 N.W.2d 255, 259-60 (Iowa 2007) ("A legislative judgment is presumed to be supported by facts known to the [legislature], unless facts judicially known or proved preclude that possibility.'"
130. (quoting Egan v. United States, 137 F.2d 369, 375 (8th Cir. 1943))).
131. State v. Pilcher, 242 N.W.2d 348, 359 (Iowa 1976).
132. Id. at 358.
133. Lawrence v. Texas, 539 U.S. 558, 578-79 (2003).
134. Callender v. Skiles, 591 N.W.2d 182, 190 (Iowa 1999).
135. Id. at 184.
136. Id. at 190
137. (citing Redmond v. Carter, 247 N.W.2d 268, 273 (Iowa 1976)).
138. Id. The court also reasoned that "[t]he nontraditional circumstances in which parental rights arise do not diminish the traditional parental rights at stake."
139. Id.
140. See Bierkamp v. Rogers, 293 N.W.2d 577, 580 (Iowa 1980) (stating that the court should overrule Iowa's guest statute because many other state courts have already done so).
141. Fundermann v. Mickelson, 304 N.W.2d 790, 791-92 (Iowa 1981).
142. Rachel F. Moran, Law and Emotion, Love and Hate, 11 J. CONTEMP. LEGAL ISSUES 747, 776 (2001). At least a handful of states actually still retain this tort.
143. William R. Corbett, A Somewhat Modest Proposal to Prevent Adultery and Save Families: Two Old Torts Looking for a New Career, 33 ARIZ. ST. L.J. 985, 1009 (2001).
144. In re Marriage of Walsh, 451 N.W.2d 492, 492 (Iowa 1990).
145. Id. at 493.
146. Compare In re Marriage of Kraft, No. 99-1719, 2000 WL 1289135, at *2 (Iowa Ct. App. Sept. 13, 2000) (granting a gay father full visitation rights and refusing to impose limits on talking about his sexuality with his child),
147. and In re Marriage of Cupples, 531 N.W.2d 656, 657 (Iowa Ct. App. 1995) (holding that the trial court had properly viewed a parent's sexual orientation "as a nonissue"),
148. with Hodson v. Moore, 464 N.W.2d 699, 701 (Iowa Ct. App. 1990) (holding that while considering the behavior of those sharing the custodial parent's home is important, a "discreet homosexual relationship" is not a "per se bar" to a parent's custody).
149. Bierkamp v. Rogers, 293 N.W.2d 577, 585 (Iowa 1980).
150. Id. at 584.
151. Id. at 581.
152. Id. at 584.
153. Id. ("However laudable and legitimate may be the state purpose of fostering hospitality, the distinctions drawn in the guest statute do not reasonably or substantially further that goal.").
154. The Iowa Supreme Court invalidated another statute under rational-basis review in Federal Land Bank of Omaha v. Arnold, 426 N.W.2d 153, 161 (Iowa 1988). That case involved a challenge to a law setting shorter mortgage-redemption periods for "member" institutions that belonged to the FDIC or similar associations.
155. Id. at 155. The court struck down the law, disapproving of the arbitrary means chosen, not the goal.
156. Id. at 157-58.
157. Racing Ass'n of Cent. Iowa v. Fitzgerald (RACI II), 675 N.W.2d 1, 4 (Iowa 2004). The statute at issue imposed a twenty-percent annual tax on gross receipts from gambling games such as slot machines in riverboats but taxed the same games at racetracks starting at twenty-two percent with automatic two-percent annual increases up to a maximum of thirty-six percent.
158. Id.
159. Id. (citing Fitzgerald v. Racing Ass'n of Cent. Iowa, 539 U.S. 103 (2003)).
160. Racing Ass'n of Cent. Iowa v. Fitzgerald (RACI I), 648 N.W.2d 555, 563 (Iowa 2002).
161. RACI II, 675 N.W.2d at 16.
162. In setting forth its twin avenues allowing Iowa state courts to carry their constitutional analyses beyond federal boundaries, the Iowa Supreme Court relied on Robert F. Williams, Equality Guarantees in State Constitutional Law, 63 TEX. L. REV. 1195 (1985).
163. RACI II, 675 N.W.2d at 5.
164. Williams, supra note 103, at 1219. As an example, Williams cited the California Supreme Court's decision to treat women as a suspect classification subject to strict scrutiny, unlike the U.S. Supreme Court, which treats women as a quasi-suspect class.
165. Id. at 1219-20.
166. Compare Hardy v. Stumpf, 576 P.2d 1342, 1344 (Cal. 1978) ("Classifications predicated on gender are deemed suspect in California."),
167. and In re Marriage of Bouquet, 546 P.2d 1371, 1373 (CaI. 1976) ("[S]ex based classifications are inherendy suspect."),
168. with Clark v. Jeter, 486 U.S. 456, 461 (1988) (stating that intermediate scrutiny applies to gender classifications (citing Miss. Univ. for Women v. Hogan, 458 U.S. 718, 723-24 & n.9 (1982))).
169. RACIII, 675 N.W.2d at 5, 6
170. (quoting In re Det. of Garren, 620 N.W.2d 275, 280 n.1 (Iowa 2000)).
171. Id.
172. Id.
173. (quoting Miller v. Boone County Hosp., 394 N.W.2d 776, 781 (Iowa 1986)).
174. Id. at 9-11 ("[I]t appears that both types of gambling enterprises have the potential to enhance the economic climate of the communities in which they are located.").
175. RACI II, 675 N.W.2d at 12 (stating that there is no rational basis for preventing harm to gambling businesses that relied on the tax scheme because the tax "is triggered not by whether the business engaged in gambling prior to the implementation of new tax rates, but on whether the gambling takes place in a floating casino").
176. Id. at 15.
177. See Sanchez v. State, 692 N.W.2d 812, 817 (Iowa 2005) ("Because neither party in this case has argued that our equal protection analysis under the Iowa Constitution should differ in any way from our analysis under the Federal Constitution, we decline to apply divergent analyses in this case."
178. (citing RACI II, 675 N.W.2d at 5)).
179. The plaintiff couples were (1) Kate and Trish Varnum of Cedar Rapids, Iowa; (2) Larry Hoch and David Twombley, retired teachers of Urbandale, Iowa; (3) Dawn and Jen BarbouRoske, Girl Scouts leaders, along with their children, McKinley and Breeanna, of Iowa City, Iowa; (4) Reva Evans and Ingrid Olson and their son, Jamison, of Council Bluffs, Iowa; (5) Jason Morgan and Chuck Swaggerty of Sioux City, Iowa; and (6) Bill Musser, musician, and Otter Dreaming, church organist, of Decorah, Iowa. Lambda Legal, Plaintiff Couples in Lambda Legal's Iowa Marriage Lawsuit: Varnum v. Brien (Dec. 13, 2005), http://www.lambdalegal.org/our-work/publications/facts-backgrounds/ varnum-plaintiffs.html.
180. The named defendant was Timothy J. Brien, Recorder for Polk County, Iowa. Varnum v. Brien, No. CV5965, slip op. at 16 (Iowa Dist. Ct Aug. 30, 2007), appeal filed, No. 05771 (Iowa 2007), available at http://data.lambdalegal.org/pdf/legal/varnum/varnum-d-08302007-ia-district.pdf.
181. IOWA CODE §595.2(1) (2007).
182. Varnum, at 62. Roughly twenty couples received expedited marriage certificates before Judge Hanson stayed his order.
183. Henry C Jackson, Iowa Gay Couple Wed in Short Window of Legal Opportunity, DAILY REV. (Hayward, Cal.), Sept. 1, 2007.
184. Varnum, at 13. Because the order addressed opposing motions for summaryjudgment, Judge Hanson accepted all of the plaintiffs' alleged facts as undisputed because the defendant denied them for lack of knowledge.
185. Id.
186. Id. at 27.
187. Id. at 31. Judge Hanson noted the following: Numerous leading organizations... (e.g., the American Academy of Pediatrics, the American Psychiatric Association, the American Psychological Association, the National Association of Social Workers and the Child Welfare League of America) have issued statements confirming that lesbian and gay parents are as effective as heterosexual parents....
188. Id. Judge Hanson continued, "[I]t is also well-established that children do not need a parent of each gender to be well adjusted, that both men and women have the capacity to be good parents, and that children do not need male and female role models in the home to develop normally."
189. Id. at 32.
190. Id. at 40-42.
191. Id. at 42-43.
192. Varnum, at 45. Judge Hanson found that the law was over-inclusive because it attempted to strengthen heterosexual marriages by preventing an entirely different group, homosexuals, from being married. He then found that the statute was under-inclusive because it attempted to encourage procreation by allowing all heterosexuals to marry regardless of interest in procreation or fertility.
193. Id. at 46.
194. Id. at 47
195. (citing M.R.M., Inc. v. City of Davenport, 290 N.W.2d 338, 340-41 (Iowa 1980) (holding that a prohibition on people giving massages to members of the opposite gender is a sex-based classification)).
196. Id. at 50-51. The first three state-proffered interests were (1) promoting procreation, (2) promoting childrearing by a father and a mother in a marriage relationship, and (3) promoting stability in opposite-sex relationships where children may be born.
197. Id. at 50.
198. Id. at 51
199. (citing Racing Ass'n of Cent. Iowa v. Fitzgerald (RACI II), 675 N.W.2d 1, 7-8 &n.3 (Iowa 2004)).
200. Id. at 51, 53.
201. See Varnum, at 53 (stating that because animus as a legislative objective is prohibited under U.S. Supreme Court jurisprudence, this purpose is likewise illegitimate under the Iowa Constitution).
202. Id. at 51
203. (citing RACI II, 675 N.W.2d at 7 & n.3).
204. RACI II, 675 N.W.2d at 10.
205. Varnum, at 56-59.
206. Id. at 60-61;
207. see also Glowacki v. State Bd. of Med. Exam'rs, 501 N.W.2d 539, 541 (Iowa 1993) (stating that a law's challenger has the burden of overcoming the "strong presumption of constitutionality [that] cloaks every statute"
208. (citing Larsson v. Iowa Bd. of Parole, 465 N.W.2d 272, 273 (Iowa 1990))).
209. Cf. McCreary County v. ACLU of Ky., 545 U.S. 844, 853-54 (2005) (applying an objective test of legislative motivation in the Establishment Clause setting).
210. Romer v. Evans, 517 U.S. 620, 635 (1996). Colorado's amendment 2 read: "Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination."
211. Id. at 624
212. (quoting COLO. CONST., art. II, § 30b).
213. Id. at 635.
214. Id. There is controversy over whether the standard that was applied in Romer was rational basis with teeth or just the traditional deferential version of that test.
215. Compare SUSAN GLUCK MEZEY, QUEERS IN COURT 65-66 (2007) (noting that some scholars believe that the Court applied a "second order" of rational-basis review (internal quotations omitted)),
216. with Richard F. Duncan, TAe Narrow and Shallow Bite of Romer and the Eminent Rationality of Dual-Gender Marriage, 6 WM. Sc MARY BILL RTS. J. 147, 151 n.25 (1997) (arguing that Justice Kennedy did not apply a rational-basis-with-teeth test because amendment 2 was "a rare kind of law that could not pass even this 'toothless' standard"). For the purposes of this Note, the actual level was immaterial because the Court found that the government, acting out of animus, could not deny freedoms to homosexuals as a specific class.
217. Romer, 517 U.S. at 632.
218. See Melanie D. Price, The Privacy Paradox: The Divergent Paths of the United States Supreme Court and State Courts on Issues of Sexuality, 33 IND. L. REV. 863, 885 (2000) (stating that broad discrimination against gays and lesbians will be "hard-pressed to survive rationality review" even if not warranting heightened scrutiny).
219. Lawrence v. Texas, 539 U.S. 558 (2003).
220. Id. at 563. The statute defined same-sex deviate intercourse as "any contact between any part of the genitals of one person and the mouth or anus of another person; [or] the penetration of the genitals or the anus of another person with an object."
221. Id.
222. Id. at 567.
223. See Laurence H. Tribe, Lawrence v. Texas: The "Fundamental Right" That Dare Not Speak Its Name, 117 HARV. L. REV. 1893, 1916-17 (2004) (stating that the Court does invoke the "talismanic verbal formula of substantive due process" but is unclear about what right was at stake and what level of review was necessary).
224. See Lawrence, 539 U.S. at 574 (broadly defining the liberty interest at issue). The Court in Lawrence followed Planned Parenthood of Southeastern Pennsylvania v. Casey by refusing to create a constitutional ledger with discrete rights falling either within or outside the constitutionally protected column. Justice Kennedy wrote, "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.'"
225. Id.
226. (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992)).
227. See Michael J. Klarman, Brown and Lawrence (and Goodridge), 104 MICH. L. REV. 431, 437 (2005) ("[B]ecause Justices Kennedy and O'Connor generally disfavor identifying new fundamental rights or suspect classes, both of their opinions in Lawrence rule the Texas statute deficient without applying a heightened standard of review.").
228. Randy E. Barnett, Kennedy's Libertarian Revolution, NAT'L REV. ONLINE, July 10, 2003, http://www.nationalreview.com/ comment/comment-barnett071003.asp.
229. See Lawrence, 539 U.S. at 577 ("[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.").
230. Pamela S. Karlan, Colloquium: The Boundaries of Liberty After Lawrence v. Texas, 102 MICH. L. REV. 1447, 1449 (2004).
231. Id. at 1448.
232. Id. at 1451.
233. Id. at 1457.
234. MARTHA C. NUSSBAUM, SEX AND SOCIAL JUSTICE 195 (1999) ("[H]omosexuals are subject to a deeper kind of social antagonism, connected not only with their acts but also with their identity.").
235. Karlan, supra note 146, at 1450-51.
236. Koppelman, supra note 32, at 121.
237. See Edwards v. Aguillard, 482 U.S. 578, 636-37 (1987) (Scalia, J., dissenting) ("[D]iscerning the subjective motivation of those enacting the statute is, to be honest, almost always an impossible task. The number of possible motivations, to begin with, is not binary, or indeed even finite.").
238. McCreary County v. ACLU of Ky., 545 U.S. 844, 861 (2005).
239. Koppelman, supra note 32, at 132.
240. Koppelman wrote that where these kinds of classification exist, the Court avoids separating legitimate goals from illegitimate ones because of the presumption that such classifications are meant to separate citizens who are "fully human from the Untermenschen [subhuman]." Id. at 132-33 (translation added).
241. Id.
242. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 442, 448 (1985) (declining to identify the mentally retarded as a quasi-suspect class, but later finding no rational basis for withholding a permit for a home for the mentally retarded).
243. See id. at 451 (Stevens, J., concurring) (stating that the Court's cases "reflect a continuum of judgmental responses to differing classifications" and that nominal standards are inadequate to explain these outcomes).
244. See, e.g., Dandridge v. Williams, 397 U.S. 471, 520-21 (1970) (Marshall, J., dissenting) (arguing that equal-protection analysis should vary with the character of the classification, the importance of the benefit that the government is withholding, and the state's interests in doing so);
245. Evolving Doctrine, supra note 40, at 17-18 (describing increasing discontent among Supreme Court Justices with a tier-based hierarchy).
246. Hernandez v. Robles, 855 N.E.2d 1, 8 (N.Y. 2006).
247. Conaway v. Deane, 932 A.2d 571, 605-16 (Md. 2007).
248. See id. at 629-35 (applying a conventional rational-basis test).
249. Washington v. Davis, 426 U.S. 229, 242 (1976).
250. Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267-68 (1977).
251. Office of Consumer Advocate v. Iowa State Commerce Comm'n, 376 N.W.2d 878, 881 (Iowa 1985)
252. (citing Smith v. Linn County, 342 N.W.2d 861, 863 (Iowa 1984)).
253. McCreary County v. ACLU of Ky., 545 U.S. 844, 850-53 (2005).
254. Id. at 853-54.
255. Id. at 874.
256. Kristi L. Bowman, Seeing Government Purpose Through the Objective Observer's Eyes: The Evolution-Intelligent Design Debates, 29 HARV. J.L. & PUB. POL'Y 417, 455 (2006).
257. Lyle Muller, Gay Rights Supporters Lash Out, THE GAZETTE (Cedar Rapids, Iowa), May 4, 1995, at B3. When the State Senate struck down the measure that prohibited educational spending on pro-homosexual programming without debate, Senator Alen Borlaug, a Republican from Protivin who supported the measure, exclaimed, "I think it stinks and I'm ashamed of you people."
258. Id.
259. Jonathan Roos & Jeff Zeleny, GOP Leaders: Rescind Gay Civil Rights Order, DES MOINES REG., Feb. 24, 2000, at B4.
260. Rod Boshart, Appointment of Gay Attorney Defeated, THE GAZETTE (Cedar Rapids, Iowa), Apr. 14, 2004, at A5.
261. Marc Hansen, Wilson Isn't the Only One with an Agenda, DES MOINES REG., Apr. 8, 2004, at B1.
262. Id.
263. Ban on Same-Sex Marriages Gains Support in Legislature, THE GAZETTE (Cedar Rapids, Iowa), Feb. 13, 1998, at All. The legislature also voted to prohibit the recognition of out-of-state gay marriages in 1998.
264. Rod Boshart, Senate Frowns on Gay Unions: Same-Sex Marriages Done Outside Iowa Not Sanctioned Here, THE GAZETTE (Cedar Rapids, Iowa), Mar. 27, 1998, at A11.
265. Baehr v. Lewin, 852 P.2d 44 (Haw. 1993).
266. IOWA CODE § 595.2(1) (2007);
267. see also WILLIAM STACY JOHNSON, A TIME TO EMBRACE: SAME-GENDER RELATIONSHIPS IN RELIGION, LAW, AND POLITICS 34 (2006) ("[T] he Baehr case produced an immediate and vociferous anti-gay backlash, one that is being felt to this day.").
268. Id.
269. See generally ELLEN ANN ANDERSEN, OUT OF THE CLOSETS & INTO THE COURTS: LEGAL OPPORTUNITY STRUCTURE AND GAY RIGHTS LITIGATION (2006).
270. IOWA CODE § 595.2(1) (1997).
271. Id.
272. Id.
273. S. 77, 1998 2d Sess., Journal at 923 (Iowa 1998), available at http://www2.legis.state.ia.us/GA/77GA/Session.2/SJournal/00900/00923.html.
274. S. 5344, 77th Gen. Assem., 2d Sess. (Iowa 1998), available at http://www2.legis.state.ia.us/GA/77GA/Legislation/S/05300/S05344/Current.html.
275. S. 5343, 77th Gen. Assem., 2d Sess. (Iowa 1998), available at http://www2.legis.state.ia.us/GA/77GA/Legislation/S/05300/S05343/Current.html.
276. See, e.g., U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980) (holding that if a court can conceive of a plausible reason for the statutory classification, it is valid regardless of whether the legislature actually contemplated that reason); United States v. Carolene Prods. Co., 304 U.S. 144, 152 (1938) (holding that a court should uphold an economic regulation unless it is so arbitrary "as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators");
277. see also Wadhwani, supra note 32, at 812-18 (describing instances of deferential rational-basis tests in Supreme Court cases).
278. Racing Ass'n of Cent. Iowa v. Fitzgerald (RACI II), 675 N.W.2d 1, 7 n.3 (Iowa 2004)
279. (quoting WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1736 (unabr. ed. 2002)). The court stated that its distinction between "credible" and "specious" classifications demanded that the court "probe to determine if the constitutional requirement of some rationality" in the law exists, rather than a conventional "superficial analysis."
280. Id.
281. (quoting Greenwalt v. Ram Rest. Corp., 71 P.3d 717, 730-31 (Wyo. 2003)).
282. Id.
283. (quoting WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2187 (unabr. ed. 2002)).
284. Id.
285. (quoting WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 532 (unabr. ed. 2002)).
286. Id. at 5 & n.2 (citation omitted);
287. see also Andersen v. King County, 138 P.3d 963, 972 (Wash. 2006) (stating that "an independent state analysis is not appropriate unless the challenged law is a grant of positive favoritism to a minority class" under a similar privileges and immunities clause in the Washington State constitution);
288. Washington v. Smith, 814 P.2d 652, 661-62 (Wash. 1991) (Utter, J., concurring) ("[S]tate privileges and immunities clauses were intended to prevent people from seeking certain privileges or benefits to the disadvantage of others. The concern was prevention of favoritism and special treatment for a few, rather than prevention of discrimination against disfavored individuals or groups."
289. (citing State v. Clark, 630 P.2d 810, 814 (Or. 1981))).
290. Williams, supra note 103, at 1207.
291. RACI II, 675 N.W.2d at 18 (Cady, J., dissenting)
292. (quoting Metro. Sports Facilities Comm'n v. County of Hennepin, 478 N.W.2d 487, 489 (Minn. 1991)).
293. Id.
294. (quoting San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 40-41 (1973)).
295. See Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 359-60 (1973) ("States have the attribute of sovereign powers in devising their fiscal systems to ensure revenue and foster their local interests.");
296. A. Magnano Co. v. Hamilton, 292 U.S. 40, 44 (1934) (stating that " [c] ollateral purposes or motives of a legislature in levying a tax of a kind within the reach of its lawful power are matters beyond the scope of judicial inquiry" and that taxation schemes can legitimately "restrict[] or even destroy!] particular occupations or businesses").
297. It is exceedingly rare for the U.S. Supreme Court to strike down differential taxes. One notable exception was Allegheny Pittsburgh Coal Co. v. Commission of Webster County, in which the county appraised homes for taxation purposes based on their last sale price, resulting in one plaintiff paying thirty-five times the amount of comparable homeowners.
298. Allegheny Pittsburgh Coal Co. v. Comm'n of Webster County, 488 U.S. 336, 341 (1989). The tax on gaming at racetracks in RACI II, however, would have remained at less than twice the amount on gaming in riverboats.
299. RACI II, 675 N.W.2d at 4.
300. Moreover, the U.S. Supreme Court has been distinguishing away the Allegheny case since its arrival. See Fitzgerald v. Racing Ass'n of Cent. Iowa, 539 U.S. 103, 109-10 (2003) (upholding the Iowa gambling tax scheme and distinguishing it from Allegheny);
301. Nordlinger v. Hahn, 505 U.S. 1, 12-16 (1992) (upholding a property-tax scheme similar to the one in Allegheny).
302. See Hillary Schlueter, Note, The Return of Lochnenzing: The Iowa Supreme Court's Invalidation of Gambling Taxes, 9 J. GENDER RACE & JUST. 713, 718-22 (criticizing the RACI II court for improperly applying a less deferential test).
303. See Klarman, supra note 143, at 477 (stating that "court decisions produce backlashes by commanding that social reform take place in a different order than might otherwise have occurred").
304. Jeffrey Rosen, The Next Cultural War, YEAR YEAR AT THE SUPREME COURT 73, 84 (Neal Devins & Davison M. Douglas eds., 2004).
305. Editorial, Just Don't Call It Marriage, DES MOINES REG., Oct. 20, 2003, at A8.
306. Iowa prohibits discrimination based on sexual orientation and gender identity in a number of areas. See IOWA CODE § 216.6(1) (2007) (private employment);
307. id. § 216.7(1) (public accommodations);
308. id. § 216.8(1) (housing and real estate);
309. id. § 216.9 (education);
310. id. § 216.10 (credit practices);
311. see also id. § 216.11 (aiding or abetting in such discrimination or retaliating against someone based on sexual orientation or gender identity);
312. id. § 216.11A (interference with someone's activities based on sexual orientation).
313. Exec. Order No. 4 (Oct. 26, 2007), available at http://www.governor.iowa.gov/administration/docs/eo/04-071026.pdf;
314. see Lambda Legal, Iowa: Relationship Recognition Information, http://www.lambdalegal.org/our-work/states/iowa.html (last visited Sept. 20, 2008) (showing that Iowa has no statutes prohibiting public employers from discriminating based on sexual orientation).
315. See Shailagh Murray, Quandary over Gay Rights Bill: Is It Better to Protect Some or None?, WASH. POST, Oct. 18, 2007, at A23 (noting the recent split among lesbian, gay, bisexual, and transgender advocacy groups over whether to accept the Employment Non-Discrimination Act without provisions for protecting against gender-identity discrimination).
316. MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY 465 (2006).
317. Id.
318. Rosen, supra note 196, at 84.
319. Cass R. Sunstein, Homosexuality and the Constitution, 70 IND. L.J. 1, 26 (1994).
320. One poll released just a couple weeks after the California decision found that Californians supported gay marriage by a fifty-one percent to forty-two percent majority, reflecting a long-term upward trend in public support. John Wildermuth, California Majority Backs Gay Marriage, S.F. CHRON., May 28, 2008, at A-1, available at http://www.sfgate.com/cgi-bin/ article.cgi?f=/c/a/2008/05/28/MNOU10U8MB.DTL&tsp=1;
321. see also In re Marriage Cases, 183 P.3d 384, 453 (Cal. 2008) (holding that same-sex couples should be "extended] the designation of marriage" in a ruling that was handed down on May 15, 2008).
322. Randal C. Archibold & Abby Goodnough, California Voters Ban Gay Marriage, N.Y. TIMES, NOV. 5, 2008, http://www.nytimes.com/2008/11/ 06/us/politics/06ballot.html.
323. Sunstein, supra note 204, at 25.
324. Id.
325. See ALASKA CONST, art I, cl. 25 (defining marriage as including only one man and one woman);
326. HAW. CONST, art I, cl. 23 (reserving the right to the legislature to restrict marriage to opposite-sex couples);
327. Brause v. Bureau of Vital Statistics, No. 3AN-95-6562 CI, 1998 WL 88743, at *5 (Alaska Super. Ct. Feb. 27, 1998) (requiring a compelling interest to deprive same-sex couples of marriage rights and putting the state's burden of justifying statutes that discriminate against homosexuals at "a more elevated position" on Alaska's sliding scale of scrutiny);
328. Baehr v. Lewin, 852 P.2d 44, 67 (Haw. 1993) (finding that bans on same-sex marriages are classifications based on gender and are subject to strict scrutiny under the Hawaii Constitution);
329. see also DEBRAN ROWLAND, THE BOUNDARIES OF HER BODY: THE TROUBLING HISTORY OF WOMEN'S RIGHTS IN AMERICA 260 (2004) (noting that the Alaska and Hawaii backlashes caught gay-rights supporters and legal scholars off guard).
330. Baehr, 852 P.2d at 44.
331. Id. at 68. Despite finding an Equal Protection Clause violation, the Hawaii Supreme Court found that same-sex marriages were not a fundamental right.
332. Id. at 57.
333. The Alaska Supreme Court also found a fundamental right to "choose one's life partner and have a recognized nontraditional family" based upon more stringent sliding-scale analysis. Brause, 1998 WL 88743, at *6.
334. See HAW. CONST. art. I, § 23 ("The legislature shall have the power to reserve marriage to opposite-sex couples.").
335. See generally David Orgon Coolidge, The Hawaii Marriage Amendment: Its Origins, Meaning and Fate, 22 U. HAW. L. REV. 19 (2000) (discussing the impetus for the constitutional change).
336. In re Marriage Cases, 183 P.3d 384, 427, 441-42 (Cal. 2008).
337. Jesse McKinley & Kirk Johnson, Mormons Tipped Scale in Ban on Gay Marriage, N.Y. TIMES, Nov. 15, 2008, at A1.
338. CASS R. SUNSTEIN, RADICALS IN ROBES 128 (2005).
339. Sunstein, supra note 204, at 26.
340. SUNSTEIN, supra note 215, at 129 ("[W]hen society is divided, judges ought not to be too sure that they are right.").
341. RICHARD M. ABRAMS, AMERICA TRANSFORMED: SIXTY YEARS OF REVOLUTIONARY CHANGE, 1941-2001, at 129 (2006) (citations omitted).
342. See Klarman, supra note 143, at 487-88 (describing political and scholarly criticism of the Brown v. Board of Education decision).
343. Id. at 488 ("In the fifty years since it was decided, Brown has become an American icon.").
344. Id. at 478-79 (suggesting that the Massachusetts decision, Goodridge, which required full marriage equality for homosexuals, might have ignited less backlash if the court had only required civil unions).
345. See Lewis v. Harris, 908 A.2d 196, 221-22 (N.J. 2006) (granting the New Jersey legislature the right to follow Vermont's system or to provide full-fledged marriage without speculating on how the court would react);
346. Season Recap, N.J. LAWYER, Aug. 13, 2007, at S4 (stating that the New Jersey Supreme Court chose its route in part because of the "uproar" caused by the Goodridge decision in Massachusetts).
347. See SUNSTEIN, supra note 215, at 129 ("In the area of sexual equality, the minimalist method eventually produced a broad prohibition on discrimination; so too with the long series of cases that led the Supreme Court to strike down racial segregation in Brown v. Board of Education").
348. See Committee Member Elected by General Council, N.J. LAWYER, Oct. 22, 2007, at 9 (stating that the New Jersey Civil Union Review Commission began holding public hearings at which the New Jersey State Bar Association's President as well as members of the State Bar's Gay, Lesbian, Bisexual and Transgender Section testified).
349. Tina Kelley, New Jersey Civil Union Law Has Fallen Short in Its First Year, Commission Is Told, NY. TIMES, Oct. 28, 2007, at A30.
350. DANIEL R. PINELLO, AMERICA'S STRUGGLE FOR SAME-SEX MARRIAGE 166 (2006) (quoting an interview with Tim Nashif of the Oregon Family Council).
351. See Varnum v. Brien, No. CV5965, slip op. at 31 (Iowa Dist. Ct. Aug. 30, 2007), appeal filed, No. 05771 (Iowa 2007), available at http://data.lambdalegal.org/pdf/legal/varnum/varnum-d-08302007-ia-district.pdf.
352. Shawn Kolitch, Comment, Constitutional Fact Finding and the Appropriate Use of Empirical Data in Constitutional Law, 10 LEWIS & CLARK L. REV. 673, 697 (2006).
353. Frank Newport, Six in 10 Americans Agree That Gay Sex Should Be Legal, GALLUP, June 27, 2003, http://www.gallup.com/poll/8722/Six- Americans-Agree-Gay-Sex-Should-Legal.aspx (noting long-term increases in popular support for gay rights and drastically higher acceptance of homosexuals among the young).
354. Klarman, supra note 143, at 485.
355. See Sunstein, supra note 204, at 26.