Gambling, Greyhounds, and Gay Marriage: How the Iowa Supreme Court Can Use the Rational-Basis Test to Address Varnum v. Brien

Author:Steven P. Wieland
Position:J.D. Candidate, The University of Iowa College of Law, 2009

In the 2007 case Varnum v. Brien, a Polk County, Iowa judge ordered the state of Iowa to begin processing marriage licenses for same-sex couples. One of the rationales for striking down the gay-marriage ban was that it failed to pass rational-basis review. If the Iowa Supreme Court chooses to uphold the ruling, it should choose to apply rational basis "with teeth," a form of scrutiny that has... (see full summary)


J.D. Candidate, The University of Iowa College of Law, 2009; B.A., Cornell College, Mt. Vernon, Iowa, 2006. He thanks his parents for their generous material support and their selfless love. He also thanks his little sister, Lindsay, and his fiancee, Jaren, for tolerating him with so much grace. He hopes that someday all people will enjoy, as he does, the love of a united family. Page 415

I Introduction

With the case Varnum v. Brien,1 Judge Robert Hanson, a Fifth District Court Judge in Polk County, Iowa, stirred the nation's political passions when he ordered the state to begin processing marriage certificates for gay couples.2 The decision came in the thick of the presidential-caucus season, and thus incited fear of an impending backlash against the gay-rights movement.3 Conservative candidates clamored over each other to condemn the ruling,4 while gay couples clamored to get marriage licenses in the narrow hours before Judge Hanson stayed his ruling pending appeal.5

There is a chance that the ruling might survive. Afoot for decades now, the forward-marching gay-rights movement has both inspired popular approval of gay lifestyle6 and prompted pleas to legalize same-sex marriage.7 More Americans today believe that homosexuality is an inherited trait rather than an acquired one, and in the past twenty-five years, support for homosexuality as an alternative lifestyle has increased from thirty-four percent to fifty-seven percent.8 Lawrence v. Texas, Romer v. Evans, and their Page 416 ancestors have made provisions that classify against homosexuals increasingly difficult to justify.9

Should the Iowa Supreme Court choose to strike down the same-sex-marriage ban, Varnum presents a chance for the court to do so without granting full-blown marriage rights to same-sex couples. The court need not exacerbate the ongoing culture war by treating homosexuals as a protected class or by embracing an all-inclusive definition of marriage. Instead, the court could use a minimalist rational-basis "with bite" analysis to invalidate the same-sex-marriage ban and leave the state's elected representatives to negotiate for full gay-marriage rights in public view.10 A rational-basis decision would shift the debate away from the divisive issue of marriage back to human equality-from "Do homosexuals deserve the traditional privilege of marriage?" to "How should we provide equal access to government benefits and protections to all people, including homosexuals?" In the distant future, the outcome will be the same, but the journey to that point could actually be shorter and less traumatic.

Evidence already exists that the Iowa Supreme Court is willing to exploit a more rigorous rational-basis analysis when it needs to.11 In 2004, the court handed down Racing Ass'n of Central Iowa v. Fitzgerald ("RACII/'), a challenge to substantially higher tax rates that the state imposed on gambling at racetracks compared to gambling in riverboat casinos.12 The U.S. Supreme Court had remanded the case, ruling that the tax did not violate conventional rational-basis equal protection.13 Nonetheless, the Iowa Supreme Court applied its own rational-basis-with-bite analysis and found that the law violated Iowa's equal-protection clause.

Likewise, in handling Varnum, the Iowa Supreme Court could apply a heightened rational-basis-with-bite test to invalidate the same-sex-marriage ban. This Note does not advocate in favor of or against striking down the ban, but rather advocates for a particular method of striking down the ban if the court chooses that path. Part II of this Note is an overview of U.S. Supreme Court case law. It discusses cases where the Court utilized the standard regimen of equal-protection scrutiny, as well as more subtle cases Page 417 where the Court felt motivated to protect a disfavored class of people and applied a heightened rational-basis test "with teeth." Part II concludes by describing state-level litigation over gay-marriage prohibitions and contrasting cases that employ standard rational-basis review to uphold same-sex-marriage bans with those that employ more exacting levels of analyses to strike them down. Part III describes Iowa law as it stands and evaluates the strong possibility that the RACI II decision provides grounds for applying a more rigorous inquiry into the state's gay-marriage ban. Part IV advocates for the application of a toothy rational-basis inquiry in the Varnum case in order to remain faithful to U.S. Supreme Court precedent and to minimize the backlash of upholding a ruling that invalidates the Iowa gay-marriage ban.

II Legal Context

Courts could easily adapt U.S. Supreme Court precedent to protect homosexuals from same-sex-marriage bans on the grounds that marriage is a fundamental right.14 The most relevant case is Loving v. Virginia,15 in which the Court struck down Virginia's anti-miscegenation law, which prohibited interracial marriages, holding that it violated the Due Process Clause and the Equal Protection Clause.16 After Loving, the Court also wielded both clauses to invalidate state laws that invaded the right to marry for specific classes of people. For instance, the Court has struck down state laws denying marriage to men who could not prove that their child-support payments were up-to-date17 and laws interfering with prison inmates' right to marry.18 As the Court has explained, the right to marry is an essential liberty because it is "an expression of emotional support and public commitment."19 With Page 418 the basic right to marry as a foundation, this Note analyzes how a rational-basis-with-teeth review could evolve into a potent instrument for dealing with same-sex-marriage bans.

Although the Iowa Supreme Court could apply heightened scrutiny to the state gay-marriage ban under either the Due Process Clause or the Equal Protection Clause, rational basis with teeth would more closely adhere to established U.S. Supreme Court precedent. A traditional rational-basis analysis is almost completely deferential to the government's chosen goal and the means that the government chooses to achieve that goal. Alternatively, rational basis with teeth refers to a body of past U.S. Supreme Court cases in which the Court purported to apply the traditionally deferential rational-basis analysis but struck down a state enactment anyway, suggesting that the Court applied more scrutiny than it purported.20 Rational-basis-with-teeth cases most often came up when the Court suspected that the legislating body harbored animus toward a class of people. These cases are uncommon, but not so uncommon as to rule them out as effective precedent.

A Rational Basis

Most Fourteenth Amendment cases are mundane rational-basis inquiries. Similar methods of analysis apply to Fourteenth Amendment claims under both the Due Process Clause and the Equal Protection Clause. Courts have traditionally used three levels of scrutiny when addressing equal-protection cases.21 The highest of the three tiers is strict scrutiny, a high standard reserved for statutes that burden a "suspect class" or invade a "fundamental right."22 The second tier, intermediate scrutiny, is applicable to laws targeting "quasi-suspect classes" such as women, but is still rigorous enough to strike many of them down.23 Courts apply the rational-basis test to the remainder of equal-protection cases.24 Similarly, strict scrutiny applies to laws that impinge on fundamental freedoms under the Due Process Clause.25 Because there is no middle tier of scrutiny for due-process cases, rational basis applies to the rest. Most rational-basis cases, many of which challenge economic or commercial regulations, employ an exceedingly Page 419 deferential test.26 However, in a few cases where illegitimate legislative motives were lurking, the Supreme Court has struck down statutes by applying rational basis with teeth, a far less deferential analysis.

The Iowa Supreme Court has a choice between the two forms of rational-basis inquiries. As the law stands, the Equal Protection Clause does not include homosexuals as a protected class,27 and the U.S. Supreme Court is no longer predisposed to defining new protected classes.28 Similarly, it is unlikely that the Court would be willing to identify gay marriage as a specific fundamental right under the Due Process Clause.29 As a result, the Iowa Supreme Court could join a very small group of states and blaze a completely novel trail by applying heightened scrutiny to the gay-marriage ban. Alternatively, it could apply a rational-basis-with-bite analysis to invalidate the gay-marriage ban without upending established U.S. Supreme Court precedent.

1. The Traditional Deferential Rational-Basis Test

In traditional jurisprudence, the rational-basis test has been extremely deferential, hardly subjecting legislative actions to scrutiny at all.30 The standard two-step formulation of the test requires that (1) the legislature pursue a legitimate goal and (2) the means chosen to attain that goal are not "arbitrary or irrational."31 In practice, if a court can think of any plausible government interests and can conceive of reasons to support the government's methods for achieving those interests, the law stands.32 Page 420

An early manifestation of such a...

To continue reading