No Easy Answers

                   IN THE SUPREME COURT OF IOWA
                                 No. 07-1499

                              Filed April 3, 2009


KATHERINE VARNUM, PATRICIA HYDE, DAWN BARBOUROSKE,
JENNIFER BARBOUROSKE, JASON MORGAN, CHARLES SWAGGERTY,
DAVID TWOMBLEY, LAWRENCE HOCH, WILLIAM M. MUSSER, OTTER
DREAMING, INGRID OLSON, and REVA EVANS,

      Appellees,

vs.

TIMOTHY J. BRIEN, In His Official Capacities as the Polk County Recorder
and Polk County Registrar,

      Appellant.



      Appeal from the Iowa District Court for Polk County, Robert B.

Hanson, Judge.



      Defendant appeals from district court summary judgment ruling

holding state statute limiting civil marriage to a union between a man and a

woman unconstitutional. AFFIRMED.

...

CADY, Justice.

       In this case, we must decide if our state statute limiting civil marriage

to a union between a man and a woman violates the Iowa Constitution, as

the district court ruled. On our review, we hold the Iowa marriage statute

violates the equal protection clause of the Iowa Constitution. Therefore, we

affirm the decision of the district court.

       I. Background Facts and Proceedings.

       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.1
       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.



       1The   state motto of Iowa is: "Our liberties we prize and our rights we will maintain."
It is inscribed on the Great Seal of Iowa and on our state flag. See Iowa Code �� 1A.1, 1B.1
(2009).

                                            8

       Unlike opposite-sex couples in Iowa, same-sex couples are not

permitted to marry in Iowa.          The Iowa legislature amended the marriage

statute in 1998 to define marriage as a union between only a man and a

woman.2 Despite this law, the six same-sex couples in this litigation asked

the Polk County recorder to issue marriage licenses to them. The recorder,

following the law, refused to issue the licenses, and the six couples have

been unable to be married in this state. Except for the statutory restriction

that defines marriage as a union between a man and a woman, the twelve

plaintiffs met the legal requirements to marry in Iowa.

       As other Iowans have done in the past when faced with the

enforcement of a law that prohibits them from engaging in an activity or

achieving a status enjoyed by other Iowans, the twelve plaintiffs turned to

the courts to challenge the statute.            They seek to declare the marriage

statute unconstitutional so they can obtain the array of benefits of marriage

enjoyed by heterosexual couples, protect themselves and their children, and

demonstrate to one another and to society their mutual commitment.

       In turning to the courts, the twelve plaintiffs filed this lawsuit in the

Polk County District Court. They claimed the statutory same-sex marriage

ban violates certain liberty and equality rights under the Iowa Constitution.

The individual rights claimed by plaintiffs to be adversely affected (by the

action of the legislative branch in enacting the same-sex marriage ban and

the action of the government officials of the executive branch in enforcing the

ban) included the fundamental right to marry, as well as rights to privacy

and familial association. Additionally, plaintiffs claimed the legislative and



        2Iowa Code section 595.2(1) provides "[o]nly a marriage between a male and a female

is valid." All statutory references are to the 2009 Code of Iowa. While some statutes
referenced here have been amended since this lawsuit originated, none of the amendments
dictate the outcome of this case.

                                       9

the executive actions unconstitutionally discriminated against them on

several bases, including sexual orientation.

      The case was presented to the district court by means of a summary

judgment motion. The record was developed through witness affidavits and

depositions. This record included an explanation by some of the plaintiffs of

the disadvantages and fears they face each day due to the inability to obtain

a civil marriage in Iowa. These disadvantages and problems include the legal

inability to make many life and death decisions affecting their partner,

including decisions related to health care, burial arrangements, autopsy,

and disposition of remains following death.      Various plaintiffs told of the

inability to share in their partners' state-provided health insurance, public-

employee pension benefits, and many private-employer-provided benefits

and protections. They also explained how several tax benefits are denied.

Adoption proceedings are also more cumbersome and expensive for

unmarried partners. Other obstacles presented by the inability to enter into

a civil marriage include numerous nongovernmental benefits of marriage

that are so common in daily life they often go unnoticed, such as something

so simple as spousal health club memberships. Yet, perhaps the ultimate

disadvantage expressed in the testimony of the plaintiffs is the inability to

obtain for themselves and for their children the personal and public

affirmation that accompanies marriage.

      The parties also explored the reasons for defining marriage in a way

that denies these benefits to same-sex couples.        The County offered five

primary interests of society in support of the legislature's exclusive definition

of marriage. The first three interests are broadly related to the advancement

of child rearing.     Specifically, the objectives centered on promoting

procreation, promoting child rearing by a mother and a father within a

                                      10


marriage, and promoting stability in an opposite-sex relationship to raise

and nurture children. The fourth interest raised by the County addressed

the conservation of state resources, while the final reason concerned the

governmental interest in promoting the concept and integrity of the

traditional notion of marriage.

      Much of the testimony presented by the County was in the form of

opinions by various individuals that same-sex marriage would harm the

institution of marriage and also harm children raised in same-sex marriages.

Two college professors testified that a heterosexual marriage is, overall, the

optimal forum in which to raise children. A retired pediatrician challenged

the accuracy of some of the medical research that concludes there is no

significant difference between children raised by same-sex couples and

opposite-sex couples. A clinical psychologist testified sexual orientation is

not as defined and stable as race and gender and can change over time. He

acknowledged, however, it is difficult to change a person's sexual orientation,

and efforts to do so can be harmful to the person.

      The plaintiffs produced evidence to demonstrate sexual orientation

and gender have no effect on children raised by same-sex couples, and

same-sex couples can raise children as well as opposite-sex couples. They

also submitted evidence to show that most scientific research has repudiated

the commonly assumed notion that children need opposite-sex parents or

biological parents to grow into well-adjusted adults.           Many leading

organizations, including 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,

weighed the available research and supported the conclusion that gay and

lesbian parents are as effective as heterosexual parents in raising children.

                                           11


For example, the official policy of the American Psychological Association

declares, "There is no scientific evidence that parenting effectiveness is

related to parental sexual orientation: Lesbian and gay parents are as likely

as heterosexual parents to provide supportive and healthy environments for

children."3    Almost every professional group that has studied the issue

indicates children are not harmed when raised by same-sex couples, but to

the contrary, benefit from them. In Iowa, agencies that license foster parents

have found same-sex couples to be good and acceptable parents.                       It is

estimated that more than 5800 same-sex couples live throughout Iowa, and

over one-third of these couples are raising children.

       The district court concluded the statute was unconstitutional under

the due process and equal protection clauses of the Iowa Constitution and

granted summary judgment to the plaintiffs. It initially ordered the county

recorder to begin processing marriage licenses for same-sex couples, but

stayed the order during the pendency of an appeal.

       II. Standard of Review.

       Summary judgment is appropriate only when "there is no genuine

issue as to any material fact and . . . the moving party is entitled to a

judgment as a matter of law." Iowa R. Civ. P. 1.981(3). "An issue of fact is

`material' only when the dispute is over facts that might affect the outcome of

the suit, given the applicable governing law."             Junkins v. Branstad, 421

N.W.2d 130, 132 (Iowa 1988).            The party requesting summary judgment


       3This statement is the official policy of the American Psychological Association

regarding sexual orientation, parents, and children. See Am. Psychological Ass'n Council of
Representatives, Am. Psychological Ass'n, Resolution on Sexual Orientation, Parents, and
Children (2004), in Ruth Ullmann Paige, Proceedings of the American Psychological
Association for the Legislative Year 2004: Minutes of the Annual Meeting of the Council of
Representatives July 28 & 30, 2004, Honolulu, HI, 60 Am. Psychologist 436�511 (July�
August 2005), available at http://www.apa.org/pi/lgbc/policy/parents.html (reporting
adoption of resolution).

                                      12


shoulders the burden to demonstrate no genuine issue of material fact

exists. Hunter v. City of Des Moines Mun. Hous. Auth., 742 N.W.2d 578, 584

(Iowa 2007).     We review the legal issues necessary for resolution of the

constitutional claims presented within the context of the summary judgment

proceeding de novo.     Kistler v. City of Perry, 719 N.W.2d 804, 805 (Iowa

2006).

      III. Constitutional Separation of Powers.

      We approach the resolution of this case with a keen and respectful

understanding of our Iowa Constitution and the vital roles of the three

branches of government, as well as the role of the people. It is important for

these roles to be identified and expressed from time to time when individuals

seek recognition of rights, if only to serve as a reminder of the process of

governing that has served us so well as a state for over 150 years.

      The Iowa Constitution is the cornerstone of governing in Iowa. Like

the United States Constitution, the Iowa Constitution creates a remarkable

blueprint for government. It establishes three separate, but equal, branches

of government and delineates the limited roles and powers of each branch.

See Iowa Const. art. III, � 1 ("The powers of the government of Iowa shall be

divided into three separate departments--the legislative, the executive, and

the judicial:   and no person charged with the exercise of powers properly

belonging to one of these departments shall exercise any function

appertaining to either of the others, except in cases hereinafter expressly

directed or permitted."). Among other basic principles essential to our form

of government, the constitution defines certain individual rights upon which

the government may not infringe. See Iowa Const. art. I ("Bill of Rights").

Equal protection of the law is one of the guaranteed rights. See Iowa Const.

art. I, � 6.    All these rights and principles are declared and undeniably

                                      13


accepted as the supreme law of this state, against which no contrary law can

stand. See Iowa Const. art. XII, � 1 ("This constitution shall be the supreme

law of the state, and any law inconsistent therewith, shall be void.").

      This case, as with most other civil rights actions before it, implicates

these broad constitutional principles of governing.        The legislature, in

carrying out its constitutional role to make public policy decisions, enacted a

law that effectively excludes gay and lesbian people from the institution of

civil marriage. The executive branch of government, in carrying out its role

to execute the law, enforced this statute through a county official who

refused to issue marriage licenses to six same-sex couples. These Iowans,

believing that the law is inconsistent with certain constitutional mandates,

exercised their constitutional right to petition the courts for redress of their

grievance.   This court, consistent with its role to interpret the law and

resolve disputes, now has the responsibility to determine if the law enacted

by the legislative branch and enforced by the executive branch violates the

Iowa Constitution.

      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.    Iowa Const. art. XII, � 1 (providing any law

inconsistent with the constitution is void). As Chief Justice John Marshall

wrote over two centuries ago, "It is a proposition too plain to be contested,

that the constitution controls any legislative act repugnant to it . . . ."

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L. Ed. 60, 73 (1803).

      It is also well established that courts must, under all circumstances,

protect the supremacy of the constitution as a means of protecting our

republican form of government and our freedoms.           As was observed by

Justice Robert H. Jackson decades ago in reference to the United States

                                           14


Constitution, the very purpose of limiting the power of the elected branches

of government by constitutional provisions like the Equal Protection Clause

is "to withdraw certain subjects from the vicissitudes of political controversy,

to place them beyond the reach of majorities and officials and to establish

them as legal principles to be applied by the courts." W. Va. State Bd. of

Educ. v. Barnette, 319 U.S. 624, 638, 63 S. Ct. 1178, 1185, 87 L. Ed. 1628,

1638 (1943).

      The same principle applies to the provisions of the Iowa Constitution

that limit government power. The idea that courts, free from the political

influences in the other two branches of government, are better suited to

protect individual rights was recognized at the time our Iowa Constitution

was formed. See Koehler v. Hill, 60 Iowa 543, 667, 15 N.W. 609, 640�41

(1883) (Beck, J., dissenting) ("Judges ought not to be partisans, and be

influenced by partisan control. Their duty is to interpret and apply the law,

to the end that the liberty, and the rights and property, of the people may be

secured."); 1 The Debates of the Constitutional Convention; of the State of

Iowa 453 (W. Blair Lord rep.) (Davenport, Luse, Lane & Co. 1857) (containing

expression of one delegate's desire "to have one department of our State

government in regard to which we can say, there is no political taint or bias,

there is no partisan complexion to it; it is of such a character that when we

go before it to have our dearest rights decided, we may rest assured that they

will be decided upon principles of law and equity, and not upon political or

party principles").

      In fulfilling this mandate under the Iowa Constitution, we look to the

past and to precedent. We look backwards, not because citizens' rights are

constrained    to     those   previously   recognized,   but   because   historical

                                       15


constitutional principles provide the framework to define our future as we

confront the challenges of today.

      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.         See Lawrence v.

Texas, 539 U.S. 558, 578�79, 123 S. Ct. 2472, 2484, 156 L. Ed. 2d 508, 526

(2003) (acknowledging intent of framers of Federal Constitution that

Constitution endure and be interpreted by future generations); Callender v.

Skiles, 591 N.W.2d 182, 190 (Iowa 1999) ("Our constitution is not merely

tied to tradition, but recognizes the changing nature of society.").

      When individuals invoke the Iowa Constitution's guarantees of

freedom and equality, courts are bound to interpret those guarantees. In

carrying out this fundamental and vital role, "we must never forget that it is

a constitution we are expounding." M'Culloch v. Maryland, 17 U.S. (4 Wheat.)

316, 407, 4 L. Ed. 579, 602 (1819). It speaks with principle, as we, in turn,

must also. See State v. Wheeler, 34 P.3d 799, 807 (Wash. 2001) (Sanders,

J., dissenting).

      Finally, it should be recognized that the constitution belongs to the

people, not the government or even the judicial branch of government. See

Iowa Const. art. I, � 2 ("All political power is inherent in the people.

                                      16


Government is instituted for the protection, security, and benefit of the

people, and they have the right, at all times, to alter or reform the same,

whenever the public good may require it.").      While the constitution is the

supreme law and cannot be altered by the enactment of an ordinary statute,

the power of the constitution flows from the people, and the people of Iowa

retain the ultimate power to shape it over time.        See Iowa Const. art. X

("Amendments to the Constitution").

      IV. Equal Protection.

      A. Background Principles.       The primary constitutional principle at

the heart of this case is the doctrine of equal protection.     The concept of

equal protection is deeply rooted in our national and state history, but that

history reveals this concept is often expressed far more easily than it is

practiced. For sure, our nation has struggled to achieve a broad national

consensus on equal protection of the laws when it has been forced to apply

that principle to some of the institutions, traditions, and norms woven into

the fabric of our society.    This observation is important today because it

reveals equal protection can only be defined by the standards of each

generation. See Cass R. Sunstein, Sexual Orientation and the Constitution: A

Note on the Relationship Between Due Process and Equal Protection, 55

U. Chi. L. Rev. 1161, 1163 (1988) ("[T]he Equal Protection Clause looks

forward, serving to invalidate practices that were widespread at the time of

its ratification and that were expected to endure.").

      The process of defining equal protection, as shown by our history as

captured and told in court decisions, begins by classifying people into

groups.    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

                                      17


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." Oliver Wendell Holmes, Justice,

Supreme Judicial Court of Massachusetts, The Path of the Law, address

dedicating new hall at Boston University School of Law (January 8, 1897), in

10 Harv. L. Rev. 457, 469 (1897). This concept is evident in our past cases.

      In the first reported case of the Supreme Court of the Territory of Iowa,

In re Ralph, 1 Morris 1 (Iowa 1839), we refused to treat a human being as

property to enforce a contract for slavery and held our laws must extend

equal protection to persons of all races and conditions. 1 Morris at 9. This

decision was seventeen years before the United States Supreme Court

infamously decided Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 15 L. Ed.

691 (1856), which upheld the rights of a slave owner to treat a person as

property. Similarly, in Clark v. Board of Directors, 24 Iowa 266 (1868), and

Coger v. North West. Union Packet Co., 37 Iowa 145 (1873), we struck blows

to the concept of segregation long before the United States Supreme Court's

decision in Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98

L. Ed. 873 (1954).   Iowa was also the first state in the nation to admit a

woman to the practice of law, doing so in 1869. Admission of Women to the

Bar, 1 Chicago Law Times 76, 76 (1887).        Her admission occurred three

years before the United States Supreme Court affirmed the State of Illinois'

decision to deny women admission to the practice of law, see Bradwell v.

                                             18


Illinois, 83 U.S. (16 Wall.) 130, 139, 21 L. Ed. 442, 445 (1873), and twenty-

five years before the United States Supreme Court affirmed the refusal of the

Commonwealth of Virginia to admit women into the practice of law, see

Ex parte Lockwood, 154 U.S. 116, 118, 14 S. Ct. 1082, 1083, 38 L. Ed. 929,

930 (1894). In each of those instances, our state approached a fork in the

road toward fulfillment of our constitution's ideals and reaffirmed the

"absolute equality of all" persons before the law as "the very foundation

principle of our government."4 See Coger, 37 Iowa at 153.

       So, today, this court again faces an important issue that hinges on our

definition of equal protection.           This issue comes to us with the same

importance as our landmark cases of the past.                    The same-sex-marriage

debate waged in this case is part of a strong national dialogue5 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?




       4The  cases we have cited are not meant to imply this court has been at the forefront
in recognizing civil rights in all areas and at all times. See, e.g., In re Carragher, 149 Iowa
225, 229�30, 128 N.W. 352, 354 (1910) (upholding a law that effectively denied women
pharmacists the right to sell alcohol, stating "discrimination between the sexes is neither
arbitrary nor capricious, and the fact that in many instances individuals of one sex are in
general better fitted than those of the other sex for a given occupation or business is one of
such common knowledge and observation that the Legislature may properly recognize it in
enacting regulations therefor"). These cases do, however, reflect this court has, for the most
part, been at the forefront in recognizing individuals' civil rights. The path we have taken as
a state has not been by accident, but has been navigated with the compass of equality firmly
in hand, constructed with a pointer balanced carefully on the pivot of equal protection.
       5One   commentator has found that, since the same-sex marriage debate started,
twenty-seven states have passed constitutional amendments prohibiting same-sex marriage,
and seventeen of those state amendments also ban other official forms of same-sex
relationships, such as civil unions. Ben Schuman, Note, Gods & Gays: Analyzing the Same-
Sex Marriage Debate from a Religious Perspective, 96 Geo. L.J. 2103, 2106�08 (2008). Only
one state has recognized same-sex marriage, while several other states recognize civil
unions or another form of same-sex relationship. Id.

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       B. Legal Tests to Gauge Equal Protection.                        The foundational

principle of equal protection is expressed in article I, section 6 of the Iowa

Constitution, which provides:           "All laws of a general nature shall have a

uniform operation; the general assembly shall not grant to any citizen or

class of citizens, privileges or immunities, which, upon the same terms shall

not equally belong to all citizens." See also Iowa Const. art. I, � 1 ("All men

and women are, by nature, free and equal . . . ."); id. art. I, � 2 (recognizing

"[a]ll political power is inherent in the people" and "[g]overnment is instituted

for the protection, security, and benefit of the people").                Like the Federal

Equal Protection Clause found in the Fourteenth Amendment to the United

States Constitution, Iowa's constitutional promise of equal protection " `is

essentially a direction that all persons similarly situated should be treated

alike.' "6   Racing Ass'n of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 7 (Iowa

2004) [hereinafter RACI II] (quoting City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432, 439, 105 S. Ct. 3249, 3254, 87 L. Ed. 2d 313, 320 (1985)).

       Even in the zealous protection of the constitution's mandate of equal

protection, courts must give respect to the legislative process and presume


        6Plaintiffs' challenge to Iowa Code section 595.2 is based on the equal protection

guarantee in the Iowa Constitution and does not implicate federal constitutional protections.
Generally, we view the federal and state equal protection clauses as "identical in scope,
import, and purpose." Callender, 591 N.W.2d at 187. At the same time, we have jealously
guarded our right to "employ a different analytical framework" under the state equal
protection clause as well as to independently apply the federally formulated principles.
Racing Ass'n of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 4�7 (Iowa 2004). Here again, we find
federal precedent instructive in interpreting the Iowa Constitution, but we refuse to follow it
blindly.
        The United States Supreme Court has not resolved the broad question of whether an
absolute ban of marriages between persons of the same sex violates the Federal Equal
Protection Clause. See Lawrence, 539 U.S. at 578, 123 S. Ct. at 2484, 156 L. Ed. 2d at 525
(noting that case does not decide "whether the government must give formal recognition to
any relationship that homosexual persons seek to enter"). Nor has the Court resolved many
of the narrower legal questions presented by this lawsuit. Nonetheless, the federal
framework traditionally employed for resolution of equal protection cases provides a useful
starting point for evaluation of Iowa's constitutional equal protection provision.

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its enactments are constitutional.      We understand that Iowa's tripartite

system of government requires the legislature to make difficult policy

choices, including distributing benefits and burdens amongst the citizens of

Iowa. In this process, some classifications and barriers are inevitable. As a

result, courts pay deference to legislative decisions when called upon to

determine whether the Iowa Constitution's mandate of equality has been

violated by legislative action. More specifically, when evaluating challenges

based on the equal protection clause, our deference to legislative policy-

making is primarily manifested in the level of scrutiny we apply to review

legislative action.

      In most cases, we apply a very deferential standard known as the

"rational basis test." Id. Under the rational basis test, "[t]he plaintiff has the

heavy burden of showing the statute unconstitutional and must negate every

reasonable basis upon which the classification may be sustained." Bierkamp

v. Rogers, 293 N.W.2d 577, 579�80 (Iowa 1980).             In deference to the

legislature, a statute will satisfy the requirements of the equal protection

clause

      "so long as there is a plausible policy reason for the
      classification, the legislative facts on which the classification is
      apparently based rationally may have been considered to be true
      by the governmental decisionmaker, and the relationship of the
      classification to its goal is not so attenuated as to render the
      distinction arbitrary or irrational."

RACI II, 675 N.W.2d at 7 (quoting Fitzgerald v. Racing Ass'n of Cent. Iowa,

539 U.S. 103, 107, 123 S. Ct. 2156, 2159, 156 L. Ed. 2d 97, 103 (2003)).

Although the rational basis test is "deferential to legislative judgment, `it is

not a toothless one' in Iowa." Id. at 9 (quoting Mathews v. de Castro, 429

U.S. 181, 185, 97 S. Ct. 431, 434, 50 L. Ed. 2d 389, 394 (1976)).             The

rational basis test defers to the legislature's prerogative to make policy

                                             21


decisions by requiring only a plausible policy justification, mere rationality of

the facts underlying the decision and, again, a merely rational relationship

between the classification and the policy justification.                 Nonetheless, the

deference built into the rational basis test is not dispositive because this

court engages in a meaningful review of all legislation challenged on equal

protection grounds by applying the rational basis test to the facts of each

case. Id. (citing Bierkamp, 293 N.W.2d at 581).7

       The constitutional guarantee of equal protection, however, demands

certain types of statutory classifications must be subjected to closer scrutiny

by courts. See, e.g., Plyler v. Doe, 457 U.S. 202, 216, 102 S. Ct. 2382, 2394,

72 L. Ed. 2d 786, 799 (1982) ("[W]e would not be faithful to our obligations

under the Fourteenth Amendment if we applied so deferential a standard to

every classification.").     Thus, courts apply a heightened level of scrutiny

under equal protection analysis when reasons exist to suspect "prejudice

against discrete and insular minorities . . . which tends seriously to curtail

the operation of those political processes ordinarily to be relied upon to


       7Under   a traditional rational basis review, courts are required to accept generalized
reasons to support the legislation, even if the fit between the means and end is far from
perfect. See McGowan v. Maryland, 366 U.S. 420, 425�26, 81 S. Ct. 1101, 1105, 6 L. Ed. 2d
393, 399 (1961) ("[L]egislatures are presumed to have acted within their constitutional
powers despite the fact that, in practice, their laws result in some inequality." (Citations
omitted.)). Moreover, the challengers bear the burden of negating every conceivable rational
basis that might support the classification drawn in the statute. FCC v. Beach Commc'ns,
Inc., 508 U.S. 307, 315, 113 S. Ct. 2096, 2102, 124 L. Ed. 2d 211, 221 (1993). Some legal
commentators have suggested that the occasional practice of courts to examine the purpose
of the law more closely under the rational basis test has actually created an additional
category of equal protection analysis called "rational basis with bite." See Gayle Lynn
Pettinga, Rational Basis with Bite: Intermediate Scrutiny By Any Other Name, 62 Ind. L.J.
779, 780 (1987) ("[R]ational basis with bite is simply intermediate scrutiny without an
articulation of the factors that triggered it . . . ."); Jeremy B. Smith, Note, The Flaws of
Rational Basis with Bite: Why the Supreme Court Should Acknowledge Its Application of
Heightened Scrutiny to Classifications Based on Sexual Orientation, 73 Fordham L. Rev.
2769, 2774 (2005); Steven P. Wieland, Gambling, Greyhounds, and Gay Marriage: How the
Supreme Court Can Use the Rational-Basis Test to Address Varnum v. Brien, 94 Iowa L. Rev.
413, 438�42 (2008) (suggesting the Iowa Supreme Court apply "rational basis with bite").

                                            22


protect minorities." United States v. Carolene Prods. Co., 304 U.S. 144, 152

n.4, 58 S. Ct. 778, 783 n.4, 82 L. Ed. 1234, 1242 n.4 (1938).

       Under this approach, classifications based on race, alienage, or

national origin and those affecting fundamental rights are evaluated

according to a standard known as "strict scrutiny." Sherman v. Pella Corp.,

576 N.W.2d 312, 317 (Iowa 1998). Classifications subject to strict scrutiny

are presumptively invalid and must be narrowly tailored to serve a

compelling governmental interest. In re S.A.J.B., 679 N.W.2d 645, 649 (Iowa

2004).

       A middle tier of analysis exists between rational basis and strict

scrutiny. This intermediate tier has been applied to statutes classifying on

the basis of gender or illegitimacy and requires the party seeking to uphold

the statute to demonstrate the challenged classification is substantially

related to the achievement of an important governmental objective.

Sherman, 576 N.W.2d at 317.             It is known as "intermediate scrutiny" or

"heightened scrutiny,"8 and groups entitled to this tier of review are often

called "quasi-suspect" groups.          See Cleburne Living Ctr., 473 U.S. at 445,

105 S. Ct. at 3258, 87 L. Ed. 2d at 324. To survive intermediate scrutiny,

the law must not only further an important governmental interest and be

substantially    related    to   that    interest,   but    the    justification    for   the

classification    must     be    genuine    and      must    not    depend     on     broad

generalizations.     United States v. Virginia, 518 U.S. 515, 533, 116 S. Ct.

2264, 2275, 135 L. Ed. 2d 735, 751 (1996).

       C. Determination of Constitutional Facts.                   The parties expended

considerable effort developing a summary judgment record to assist the

       8References   to "heightened" scrutiny in this opinion are meant to be general;
heightened scrutiny includes any judicial inquiry more searching than the rational basis
test. References to "intermediate" scrutiny discuss a specific level of scrutiny between the
rational basis test and strict scrutiny.

                                       23


district court in deciding the legal issues presented in this case, including

which level of scrutiny to apply. Before proceeding to determine these legal

issues, we consider the role of the evidence offered by the parties to support

their legal arguments.     The district court excluded some of the offered

testimony, which the County has raised as an issue on appeal.

       Our   law   recognizes   a   distinction   between   "adjudicative"   and

"legislative" facts.   Greenwood Manor v. Iowa Dep't of Pub. Health, 641

N.W.2d 823, 836 (Iowa 2002).         Most often, judicial decision-making is

predicated solely on a finding of facts relating to the parties and their

particular circumstances. Id. These facts are referred to as "adjudicative"

facts, see id., and the resolution of a dispute over these facts is done within

the framework of a set of rules to determine the admissibility of evidence

tending to prove such facts. See generally Iowa Rs. Evid. At times, however,

judicial decision-making involves crafting rules of law based on social,

economic, political, or scientific facts. See 2 John W. Strong, McCormick on

Evidence � 328, at 369 (5th ed. 1999) [hereinafter McCormick on Evidence].

These facts have been denominated as "legislative" facts and become relevant

to judicial decision-making when courts are required to decide the

constitutionality of a statute, among other occasions.        Id.   As a result,

judicial decision-making in the context of constitutional issues can involve

the "process of adapting law to a volatile social-political environment." Id. at

370.   Legislative facts are relevant in deciding these constitutional issues

because courts must normally analyze "whether there exist circumstances

which constitutionally either legitimate the exercise of legislative power or

substantiate the rationality of the legislative product."     Id.   In fact, the

common role of legislative facts in constitutional cases has led to an

alternative designation of legislative facts called "constitutional facts" to

                                       24


better describe those facts "which assist a court in forming a judgment on a

question of constitutional law." Kenneth C. Davis, An Approach to Problems

of Evidence in the Administrative Process, 55 Harv. L. Rev. 364, 403 (1942).

      Unlike adjudicative facts, legislative or constitutional facts "may be

presented either formally or informally."     Welsh v. Branstad, 470 N.W.2d

644, 648 (Iowa 1991). There is no formalized set of rules governing a court's

ability to consider legislative or constitutional facts. See Iowa R. Evid. 5.201

(applying rule governing judicial notice only to adjudicative facts); Fed. R.

Evid. 201 advisory committee's note ("No rule deals with judicial notice of

`legislative facts.' "). See generally City of Council Bluffs v. Cain, 342 N.W.2d

810, 816�17 (Iowa 1983) (McCormick, J., dissenting). Thus, constitutional

facts are introduced into judicial decisions through independent research by

judges and written briefs of the parties, as well as testimony of witnesses.

See McCormick on Evidence at 381�84. Importantly, constitutional facts are

not subject to the rules of evidence when presented by a party in the form of

witness testimony. Conceptually, testimony relating to constitutional facts is

only presented as authority for the legal decision the court is required to

make, and it would be inconsistent to apply formal rules of evidence to facts

in the form of testimony that a court can independently obtain and consider

in deciding the case.

      Nonetheless,      courts   consider   the   "actual    truth-content"    of

constitutional facts. See id. at 382�83. Such facts are generally disputable,

and courts must rely on the most compelling data in order to give needed

intellectual legitimacy to the law or rule crafted by the court. Id. at 383.

      Consequently, we review all of the material tendered by the parties in

this case to assist us in our review of the constitutionality of the civil

                                      25


marriage statute. The error committed by the trial court in failing to do so is

of no consequence under our de novo reviewing standard.

      D. Similarly Situated People.        The County seeks to undercut the

plaintiffs' equal protection claim by asserting the plaintiffs are not similarly

situated to heterosexuals.    We consider this threshold argument before

proceeding to the application of our equal protection test.

      We begin by recognizing the constitutional pledge of equal protection

does not prohibit laws that impose classifications.     Chicago & Nw. Ry. v.

Fachman, 255 Iowa 989, 996, 125 N.W.2d 210, 214 (1963) (recognizing "it is

often necessary in accomplishing efficient and beneficial legislation to divide

the subjects upon which it operates into classes"). Many statutes impose

classifications by granting special benefits or declaring special burdens, and

the equal protection clause does not require all laws to apply uniformly to all

people.   Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S. Ct. 2326, 2331, 120

L. Ed. 2d 1, 12 (1992). Instead, equal protection demands that laws treat

alike all people who are " `similarly situated with respect to the legitimate

purposes of the law.' " RACI II, 675 N.W.2d at 7 (quoting Coll. Area Renters

& Landlord Ass'n v. City of San Diego, 50 Cal. Rptr. 2d 515, 520 (Cal. Ct.

App. 1996)) (emphasis omitted).

      This requirement of equal protection--that the law must treat all

similarly situated people the same--has generated a narrow threshold test.

Under this threshold test, if plaintiffs cannot show as a preliminary matter

that they are similarly situated, courts do not further consider whether their

different treatment under a statute is permitted under the equal protection

clause. See, e.g., Timberland Partners XXI, LLP v. Iowa Dep't of Revenue, 757

N.W.2d 172, 176�77 (Iowa 2008) (applying threshold analysis); In re Det. of

Hennings, 744 N.W.2d 333, 338�40 (Iowa 2008) (same); Grovijohn v. Virjon,

                                       26


Inc., 643 N.W.2d 200, 204 (Iowa 2002) (same). Not only have we utilized this

test in the past, but courts from other jurisdictions have confronted it in

cases involving equal protection challenges to statutes that restrict marriage

to opposite-sex couples. See In re Marriage Cases, 183 P.3d 384, 435 n.54

(Cal. 2008) (analyzing and rejecting the government's threshold argument

that same-sex couples are not similarly situated to opposite-sex couples);

Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407, 423�24 & n.19 (Conn.

2008) (same).

      The County references this threshold test in this case and asserts the

plaintiffs are not similarly situated to opposite-sex couples so as to

necessitate further equal protection analysis because the plaintiffs cannot

"procreate naturally." In other words, the County argues the statute does

not treat similarly situated persons differently, but merely treats dissimilar

persons differently.

      In considering whether two classes are similarly situated, a court

cannot simply look at the trait used by the legislature to define a

classification under a statute and conclude a person without that trait is not

similarly situated to persons with the trait. See Racing Ass'n of Cent. Iowa v.

Fitzgerald, 648 N.W.2d 555, 559 (Iowa 2002) (RACI I); Joseph Tussman &

Jacobus tenBroek, The Equal Protection of the Laws, 37 Cal. L. Rev. 341,

344�47 (1949) [hereinafter Tussman & tenBroek].           The equal protection

clause does not merely ensure the challenged statute applies equally to all

people in the legislative classification.   " `[S]imilarly situated' cannot mean

simply `similar in the possession of the classifying trait.' All members of any

class are similarly situated in this respect and consequently, any

classification whatsoever would be reasonable by this test."       Tussman &

tenBroek, 37 Cal. L. Rev. at 345. In the same way, the similarly situated

                                            27


requirement cannot possibly be interpreted to require plaintiffs to be

identical in every way to people treated more favorably by the law. No two

people or groups of people are the same in every way, and nearly every equal

protection claim could be run aground onto the shoals of a threshold

analysis if the two groups needed to be a mirror image of one another. Such

a threshold analysis would hollow out the constitution's promise of equal

protection.

         Thus, equal protection before the law demands more than the equal

application of the classifications made by the law. The law itself must be

equal.     See Fachman, 255 Iowa at 998, 125 N.W.2d at 215 (" `The equal

protection of the laws is a pledge of the protection of equal laws . . . .' "

(quoting Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S. Ct. 1064, 1070, 30

L. Ed. 220, 226 (1886))). In other words, to truly ensure equality before the

law, the equal protection guarantee requires that laws treat all those who are

similarly situated with respect to the purposes of the law alike. RACI II, 675

N.W.2d at 7. This requirement makes it "impossible to pass judgment on the

reasonableness     of   a   [legislative]    classification   without   taking   into

consideration, or identifying, the purpose of the law." Tussman & tenBroek,

37 Cal. L. Rev. at 347. The purposes of the law must be referenced in order

to meaningfully evaluate whether the law equally protects all people similarly

situated with respect to those purposes.             For these reasons, the trait

asserted by the County is insufficient to support its threshold argument.

         Nevertheless, we have said our 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." Laws

v. Griep, 332 N.W.2d 339, 341 (Iowa 1983); see also Baehr v. Lewin, 852

P.2d 44, 58 (Haw. 1993) (stating civil marriage is " `a partnership to which

                                       28


both partners bring their financial resources as well as their individual

energies and efforts' " (quoting Gussin v. Gussin, 836 P.2d 484, 491 (Haw.

1992))).   These laws also serve to recognize the status of the parties'

committed relationship. See Madison v. Colby, 348 N.W.2d 202, 206 (Iowa

1984) (stating " `the marriage state is not one entered into for the purpose of

labor and support alone,' " but also includes " `the comfort and happiness of

the parties to the marriage contract' " (quoting Price v. Price, 91 Iowa 693,

697�98, 60 N.W. 202, 203 (Iowa 1894)) (emphasis added)); Hamilton v.

McNeill, 150 Iowa 470, 478, 129 N.W. 480, 482 (1911) ("The marriage to be

dissolved is not a mere contract, but is a status."); Turner v. Hitchcock, 20

Iowa 310, 325 (1866) (Lowe, C.J., concurring) (observing that marriage

changes the parties' "legal and social status").

      Therefore, with respect to the subject and purposes of Iowa's marriage

laws, we find that 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.

      In short, for purposes of Iowa's marriage laws, which are designed to

bring a sense of order to the legal relationships of committed couples and

their families in myriad ways, plaintiffs are similarly situated in every

important respect, but for their sexual orientation. As indicated above, this

distinction cannot defeat the application of equal protection analysis through

                                             29


the application of the similarly situated concept because, under this circular

approach, all distinctions would evade equal protection review. Therefore,

with respect to the government's purpose of "providing an institutional basis

for defining the fundamental relational rights and responsibilities of

persons," same�sex couples are similarly situated to opposite�sex couples.9

       E. Classification        Undertaken        in   Iowa    Code      Section     595.2.

Plaintiffs believe Iowa Code section 595.2 classifies on the bases of gender

and sexual orientation. The County argues the same-sex marriage ban does

not discriminate on either basis.            The district court held section 595.2

classifies according to gender. As we will explain, we believe the ban on civil

marriages between two people of the same sex classifies on the basis of

sexual orientation.




       9While   we have applied the threshold analysis in previous cases, we have, at times,
directly or indirectly infused that analysis with principles traditionally applied in the
complete equal protection analysis. See, e.g., Hennings, 744 N.W.2d at 338�39 (disposing of
an equal protection claim with a threshold similarly situated analysis, but within that
threshold analysis evaluating the relationship of the state's interest and the classification
made by the statute); see also Timberland Partners XXI, LLP, 757 N.W.2d at 176�77
(implicitly considering relationship between classifications and taxing interests of the state
by focusing on distinctions in the use of commercial and residential property); Grovijohn,
643 N.W.2d at 204 (using threshold test to find the notice provisions of the dramshop
statute treat all dramshop plaintiffs the same, but determining plaintiff failed to articulate
how the adoption of the comparative fault statute altered prior case law finding the notice
requirement did not violate equal protection). This approach is almost inevitable for the test
to have any real value as an analytical tool to resolve equal protection claims.
Consequently, we question the usefulness of the threshold test and express caution in the
future use of the threshold analysis. See, e.g., Angie Baker, Note, Leapfrogging Over Equal
Protection Analysis: The Eighth Circuit Sanctions Separate and Unequal Prison Facilities for
Males and Females in Klinger v. Department of Corrections, 76 Neb. L. Rev. 371, 385 (1999)
(noting United States Supreme Court has not applied "similarly situated" analysis as a
threshold test); Donna Laddy, Can Women Prisoners Be Carpenters? A Proposed Analysis for
Equal Protection Claims of Gender Discrimination in Educational and Vocational Programming
at Women's Prisons, 5 Temple Pol. & Civ. Rts. L. Rev. 1, 22�23 (1995) (same). Because the
plaintiffs here satisfy the threshold test we have followed in the past, the outcome in this
case would not be affected by abandoning that test now. Therefore, we leave to future
parties the task of arguing the applicability of the threshold similarly situated analysis in
future cases.

                                      30


      The County initially points out that section 595.2 does not explicitly

refer to "sexual orientation" and does not inquire into whether either

member of a proposed civil marriage is sexually attracted to the other.

Consequently, it seizes on these observations to support its claim that the

statute does not establish a classification on the basis of sexual orientation

because the same-sex civil marriage ban does not grant or withhold the

benefits flowing from the statute based on sexual preference. Instead, the

County argues, section 595.2 only incidentally impacts disparately upon gay

and lesbian people.

      The County's position reveals the importance of accurately and

precisely defining the classification in analyzing all equal protection

challenges.   The manner in which a classification is defined impacts the

utility of an equal protection analysis as a means of revealing discrimination.

Therefore, it is critical that a court reviewing the statute identify the true

nature of the classification.

      It is true the marriage statute does not expressly prohibit gay and

lesbian persons from marrying; it does, however, require that if they marry,

it must be to someone of the opposite sex. Viewed in the complete context of

marriage, including intimacy, civil marriage with a person of the opposite sex

is as unappealing to a gay or lesbian person as civil marriage with a person

of the same sex is to a heterosexual.      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

                                        31


statute as a heterosexual person by negating the very trait that defines gay

and lesbian people as a class--their sexual orientation.          In re Marriage

Cases, 183 P.3d at 441. The benefit denied by the marriage statute--the

status of civil marriage for same-sex couples--is so "closely correlated with

being homosexual" as to make it apparent the law is targeted at gay and

lesbian people as a class.       See Lawrence, 539 U.S. at 583, 123 S. Ct. at

2486,    156    L. Ed. 2d   at   529   (O'Connor,   J.,   concurring)   (reviewing

criminalization of homosexual sodomy and concluding that "[w]hile it is true

that the law applies only to conduct, the conduct targeted by this law is

conduct that is closely correlated with being homosexual.           Under such

circumstances, [the] sodomy law is targeted at more than conduct.            It is

instead directed toward gay persons as a class."). The Court's decision in

Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996),

supports this conclusion.         Romer can be read to imply that sexual

orientation is a trait that defines an individual and is not merely a means to

associate a group with a type of behavior. See Romer, 517 U.S. at 632, 116

S. Ct. at 1627, 134 L. Ed. 2d at 865�66 (holding an amendment to a state

constitution pertaining to "homosexual . . . orientation" expresses "animus

toward the class that it affects").

        By purposefully placing civil marriage outside the realistic reach of gay

and lesbian individuals, the ban on same-sex civil marriages differentiates

implicitly on the basis of sexual orientation. See Kerrigan, 957 A.2d at 431

n.24; Conaway v. Deane, 932 A.2d 571, 605 (Md. 2007). Thus, we proceed

to analyze the constitutionality of the statute based on sexual orientation

discrimination.

        F. Framework for Determining Appropriate Level of Judicial

Scrutiny. Our determination that the marriage statute employs a sexual-

                                            32


orientation-based classification does not, of course, control the outcome of

our equal protection inquiry.        Most statutes, one way or the other, create

classifications. Clements v. Fashing, 457 U.S. 957, 967, 102 S. Ct. 2836,

2845, 73 L. Ed. 2d 508, 518 (1982) ("Classification is the essence of all

legislation, and only those classifications which are invidious, arbitrary, or

irrational offend the Equal Protection Clause of the Constitution.").                    To

determine if this particular classification violates constitutional principles of

equal protection, we must next ask what level of scrutiny applies to

classifications of this type. The County argues the more deferential rational

basis test should apply, while plaintiffs argue closer scrutiny is appropriate.

       Although neither we nor the United States Supreme Court has decided

which level of scrutiny applies to legislative classifications based on sexual

orientation, numerous Supreme Court equal protection cases provide a

general framework to guide our analysis under the Iowa Constitution.10 To

say a general framework exists is not to say the Supreme Court has provided

a precise formula for determining when legislative action is subject to a

        10In the past, when a dispute has required this court to choose which level of

scrutiny to apply to a given classification, the United States Supreme Court has already
determined the appropriate level of scrutiny under the Federal Equal Protection Clause.
See, e.g., In re Det. of Williams, 628 N.W.2d 447, 452�53 (Iowa 2001) (relying on Supreme
Court's decision that the mentally ill do not comprise a suspect class); Bennett v. City of
Redfield, 446 N.W.2d 467, 473 (Iowa 1989) (deferring to Supreme Court precedent to
determine employees of city governments do not comprise a suspect class). We have
routinely followed the Supreme Court's lead, and as a result we have not previously
developed an independent analysis under the Iowa Constitution. See, e.g., Williams, 628
N.W.2d at 452�53 (noting Supreme Court holding and containing no independent analysis);
Gilleland v. Armstrong Rubber Co., 524 N.W.2d 404, 407 (Iowa 1994) (stating "strict scrutiny
analysis only required in few cases involving suspect classes and fundamental rights as
defined by Supreme Court"); Bennett, 446 N.W.2d at 473 (noting Supreme Court holding
and containing no independent analysis); Stracke v. City of Council Bluffs, 341 N.W.2d 731,
734 (Iowa 1983) ("Because no fundamental right or suspect class, as defined by the United
States Supreme Court, is involved in this case, our task is to determine whether a rational
basis existed . . . ."). While we again note our authority to develop independent analyses
under the Iowa Constitution, we nonetheless view the Supreme Court's general framework
for determining the constitutional "suspectness" of a class as a useful analytical starting
point.

                                            33


heightened form of scrutiny. See Cleburne Living Ctr., 473 U.S. at 472 n.24,

105 S. Ct. at 3272 n.24, 87 L. Ed. 2d at 341 n.24 (Marshall, J., concurring

in part and dissenting in part) ("No single talisman can define those groups

likely to be the target of classifications offensive to the Fourteenth

Amendment          and   therefore   warranting     heightened      or   strict   scrutiny;

experience, not abstract logic, must be the primary guide."); Conaway, 932

A.2d at 606 ("There is no brightline diagnostic, annunciated by . . . the U.S.

Supreme Court, by which a suspect or quasi-suspect class may be readily

recognized.").      Instead, the Supreme Court has expressed a number of

general principles to assist in identifying the appropriate level of scrutiny.

       Classifications based on factors like race, alienage, national origin,

sex, or illegitimacy are "so seldom relevant to achievement of any legitimate

state interest that laws grounded in such considerations are deemed to

reflect prejudice and antipathy." Cleburne Living Ctr., 473 U.S. at 440, 105

S. Ct. at 3254, 87 L. Ed. 2d at 320. Rather than bearing some relationship

to the burdened class's ability to contribute to society, such classifications

often reflect irrelevant stereotypes. Id. at 440�41, 105 S. Ct. at 3254�55, 87

L. Ed. 2d at 320�21. "For these reasons and because such discrimination is

unlikely to be soon rectified by legislative means," laws based on these types

of classifications must withstand more intense judicial scrutiny than other

types of classifications. Id.

       Instead of adopting a rigid formula to determine whether certain

legislative classifications warrant more demanding constitutional analysis,

the Supreme Court has looked to four factors.11 Conaway, 932 A.2d at 606

       11Justice Brennan's opinion for the Supreme Court in Plyler suggests the significance
of each of the four factors. Although Plyler does not formulate a specific test, nor even
discuss "factors" per se, the case touches upon each of the four traditional factors:
       Several formulations might explain our treatment of certain classifications as
       "suspect." Some classifications are more likely than others to reflect deep-

                                               34


(discussing factors examined by Supreme Court in considering use of

heightened scrutiny). The Supreme Court has considered: (1) the history of

invidious discrimination against the class burdened by the legislation;12 (2)

whether the characteristics that distinguish the class indicate a typical class

member's ability to contribute to society;13 (3) whether the distinguishing



       seated prejudice rather than legislative rationality in pursuit of some
       legitimate objective. Legislation predicated on such prejudice is easily
       recognized as incompatible with the constitutional understanding that each
       person is to be judged individually and is entitled to equal justice under the
       law. Classifications treated as suspect tend to be irrelevant to any proper
       legislative goal. Finally, certain groups, indeed largely the same groups, have
       historically been "relegated to such a position of political powerlessness as to
       command extraordinary protection from the majoritarian political process."
       The experience of our Nation has shown that prejudice may manifest itself in
       the treatment of some groups. Our response to that experience is reflected in
       the Equal Protection Clause of the Fourteenth Amendment. Legislation
       imposing special disabilities upon groups disfavored by virtue of
       circumstances beyond their control suggests the kind of "class or caste"
       treatment that the Fourteenth Amendment was designed to abolish.

Plyler, 457 U.S. at 217 n.14, 102 S. Ct. at 2395 n.14, 72 L. Ed. 2d at 799 n.14 (citations
omitted); see also Kerrigan, 957 A.2d at 426 (identifying two "required factors" and two
additional considerations); Dean v. District of Columbia, 653 A.2d 307, 339�40 (D.C. 1995)
(Ferren, J., dissenting) (identifying four factors and explaining the Supreme Court has not
applied all four factors in every case).
       12See   Virginia, 518 U.S. at 531�32, 116 S. Ct. at 2274�75, 135 L. Ed. 2d at 750
(observing " `long and unfortunate history of sex discrimination' " (quoting Frontiero v.
Richardson, 411 U.S. 677, 684, 93 S. Ct. 1764, 1769, 36 L. Ed. 2d 583, 590 (1973)
(Brennan, J., plurality opinion))); Lyng v. Castillo, 477 U.S. 635, 638, 106 S. Ct. 2727, 2729,
91 L. Ed. 2d 527, 533 (1986) (noting subject class had "not been subjected to
discrimination"); Cleburne Living Ctr., 473 U.S. at 443, 105 S. Ct. at 3256, 87 L. Ed. 2d at
332 (mentally retarded not victims of "continuing antipathy or prejudice"); Mass. Bd. of Ret.
v. Murgia, 427 U.S. 307, 313, 96 S. Ct. 2562, 2567, 49 L. Ed. 2d 520, 525 (1976)
(considering " `history of purposeful unequal treatment' " (quoting San Antonio Indep. Sch.
Dist. v. Rodriguez, 411 U.S. 1, 28, 93 S. Ct. 1278, 1294, 36 L. Ed. 2d 16, 40 (1973)).
       13See  Cleburne Living Ctr., 473 U.S. at 440, 105 S. Ct. at 3254, 87 L. Ed. 2d at 320
(certain classifications merely "reflect prejudice and antipathy"); Miss. Univ. for Women v.
Hogan, 458 U.S. 718, 725, 102 S. Ct. 3331, 3336, 73 L. Ed. 2d 1090, 1098 (1982) ("Care
must be taken in ascertaining whether the statutory objective itself reflects archaic and
stereotypic notions."); Murgia, 427 U.S. at 313, 96 S. Ct. at 2566, 49 L. Ed. 2d at 525
(considering whether aged have "been subjected to unique disabilities on the basis of
stereotyped characteristics not truly indicative of their abilities"); Frontiero, 411 U.S. at 686,
93 S. Ct. at 1770, 36 L. Ed. 2d at 591 (Brennan, J., plurality opinion) ("[T]he sex
characteristic frequently bears no relation to ability to perform or contribute to society.").

                                             35


characteristic is "immutable" or beyond the class members' control;14 and (4)

the political power of the subject class.15             In considering whether sexual

orientation is a suspect class, a number of our sister jurisdictions have

referenced similar factors. See In re Marriage Cases, 183 P.3d at 442�43;

Kerrigan, 957 A.2d at 426; Conaway, 932 A.2d at 606�07; Andersen v. King

County, 138 P.3d 963, 974 (Wash. 2006).

        Both parties recognize the relevance of these factors. They disagree,

however, over how the factors should be applied to decide whether sexual

orientation is a suspect or quasi-suspect class. The County essentially views

the factors as elements, asserting each must be fulfilled before we may

abandon our deferential level of scrutiny. To this end, the County argues the

immutability and political powerlessness "elements" are not satisfied in this

case.

        In its effort to treat the factors as essential elements, the County

overlooks the flexible manner in which the Supreme Court has applied the


        14Lyng, 477 U.S. at 638, 106 S. Ct. at 2729, 91 L. Ed. 2d at 533 (close relatives "do
not exhibit obvious, immutable, or distinguishing characteristics that define them as a
discrete group"); Cleburne Living Ctr., 473 U.S. at 442, 105 S. Ct. at 3255�56, 87 L. Ed. 2d
at 322 (mentally retarded people are different from other classes of people, "immutably so,
in relevant respects"); Plyler, 457 U.S. at 220, 102 S. Ct. at 2396, 72 L. Ed. 2d at 801
(children of illegal aliens, unlike their parents, have "legal characteristic[s] over which
children can have little control"); Mathews v. Lucas, 427 U.S. 495, 505, 96 S. Ct. 2755,
2762, 49 L. Ed. 2d 651, 660 (1976) (status of illegitimacy "is, like race or national origin, a
characteristic determined by causes not within the control of the illegitimate individual");
Frontiero, 411 U.S. at 686, 93 S. Ct. at 1770, 36 L. Ed. 2d at 591 (Brennan, J., plurality
opinion) ("[S]ex, like race and national origin, is an immutable characteristic determined
solely by the accident of birth . . . .").
        15Lyng,477 U.S. at 638, 106 S. Ct. at 2729, 91 L. Ed. 2d at 533 (close relatives of
primary household are "not a minority or politically powerless"); Cleburne Living Ctr., 473
U.S. at 445, 105 S. Ct. at 3257, 87 L. Ed. 2d at 324 (refusing to find "that the mentally
retarded are politically powerless"); San Antonio Indep. Sch. Dist., 411 U.S. at 28, 93 S. Ct.
at 1294, 36 L. Ed. 2d at 40 (considering whether minority and poor school children were
"relegated to such a position of political powerlessness as to command extraordinary
protection from the majoritarian political process").

                                             36


four factors in the past.16 For purposes of state constitutional analysis, we

likewise refuse to view all the factors as elements or as individually

demanding a certain weight in every case. Instead, we analyze each of the

four factors and assess how each bears on the question of whether the Iowa

Constitution requires a more searching scrutiny be applied to the specific

classification at issue. We note the first two factors--history of intentional

discrimination and relationship of classifying characteristic to a person's


         16The Supreme Court has not required, nor even discussed, every factor in every

case. See, e.g., Palmore v. Sidoti, 466 U.S. 429, 433�34, 104 S. Ct. 1879, 1882�83, 80
L. Ed. 2d 421, 426 (1984) (foregoing analysis of political power); Nyquist v. Mauclet, 432 U.S.
1, 9 n.11, 97 S. Ct. 2120, 2125 n.11, 53 L. Ed. 2d 63, 71 n.11 (1977) (jettisoning
immutability requirement and scrutinizing classification of resident aliens closely despite
aliens' voluntary status as residents); Mathews, 427 U.S. at 505�06, 96 S. Ct. at 2762�63,
49 L. Ed. 2d at 660�61 (according heightened scrutiny to classifications based on
illegitimacy despite mutability and political power of illegitimates); Murgia, 427 U.S. at 313�
14, 96 S. Ct. at 2567, 49 L. Ed. 2d at 525 (omitting any reference to immutability); San
Antonio Indep. Sch. Dist., 411 U.S. at 25, 93 S. Ct. at 1292, 36 L. Ed. 2d at 38 (omitting any
reference to immutability); Frontiero, 411 U.S. at 685�88, 93 S. Ct. at 1770�71, 36 L. Ed. 2d
at 591�92 (Brennan, J., plurality opinion) (scrutinizing classification based on gender
closely despite political power of women); Graham v. Richardson, 403 U.S. 365, 371�72, 91
S. Ct. 1848, 1852, 29 L. Ed. 2d 534, 541�42 (1971) (foregoing analysis of immutability); see
also Lyng, 477 U.S. at 638, 106 S. Ct. at 2729, 91 L. Ed. 2d at 533 (referring to whether
members of the class "exhibit obvious, immutable, or distinguishing characteristics that
define them as a discrete group" (emphasis added)); Dean, 653 A.2d at 346 (Ferren, J.,
dissenting) (observing Supreme Court has " `never held that only classes with immutable
traits can be deemed suspect' " (quoting Watkins v. U.S. Army, 875 F.2d 699, 725 (9th Cir.
1989) (Norris, J., concurring))). Some courts view the Supreme Court's precedent as
according greater weight to the first two factors, see, e.g., Kerrigan, 957 A.2d at 426 ("It
bears emphasis, however, that the United States Supreme Court has placed far greater
weight--indeed, it invariably has placed dispositive weight--on the first two factors, that is,
whether the group has been the subject of long-standing and invidious discrimination and
whether the group's distinguishing characteristic bears no relation to the ability of the group
members to perform or function in society."), or as suggesting the factors are alternative
means to heightening scrutiny of a legislative classification, id. at 440 (noting " `a suspect
class is one saddled with such disabilities, or subjected to such a history of purposeful
unequal treatment, or relegated to such a position of political powerlessness as to command
extraordinary protection from the majoritarian political process' " (quoting Murgia, 427 U.S.
at 313, 96 S. Ct. at 2567, 49 L. Ed. 2d at 525) (emphasis added)). But see Conaway, 932
A.2d at 609�14 (holding sexual-orientation-based legislation is not entitled to heightened
scrutiny because gay and lesbian people are not politically powerless, even though other
factors are satisfied); Andersen, 138 P.3d at 974 (determining plaintiffs failed to show
homosexuality is an immutable trait and consequently holding sexual-orientation-based
distinctions do not demand closer judicial scrutiny).

                                      37


ability to contribute--have always been present when heightened scrutiny

has been applied.    They have been critical to the analysis and could be

considered as prerequisites to concluding a group is a suspect or quasi-

suspect class. However, we consider the last two factors--immutability of

the characteristic and political powerlessness of the group--to supplement

the analysis as a means to discern whether a need for heightened scrutiny

exists.

      G. Determination of Appropriate Level of Scrutiny. Guided by the

established framework, we next consider each of the four traditional factors

and assess how each bears on the question of whether the constitution

demands a more searching scrutiny be applied to the sexual-orientation-

based classification in Iowa's marriage statute.

      1. History of discrimination against gay and lesbian people. The first

consideration is whether gay and lesbian people have suffered a history of

purposeful unequal treatment because of 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

                                               38


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).

       The Iowa General Assembly has recognized the need to address

sexual-orientation-based discrimination by including sexual orientation as a

characteristic protected in the Iowa Civil Rights Act, by defining hate crimes

to include certain offenses committed because of the victim's sexual

orientation, and by prohibiting "harassing or bullying" behavior in schools

based on sexual orientation. See Iowa Code �� 216.2�.18A (Iowa Civil Rights

Act)    (sexual-orientation-based           discrimination);       id.    � 280.28       (school

harassment and bullying); id. � 729A.2 (hate crimes committed because of

the victim's sexual orientation). These statutory enactments demonstrate a

legislative recognition of the need to remedy historical sexual-orientation-

based discrimination.17

       In sum, this history of discrimination suggests any legislative burdens

placed on lesbian and gay people as a class "are more likely than others to


       17Additional    legal authority abounds demonstrating the history of discrimination.
See, e.g., In re Marriage Cases, 183 P.3d at 442 (finding "sexual orientation is a
characteristic . . . that is associated with a stigma of inferiority and second-class citizenship,
manifested by the group's history of legal and social disabilities); Kerrigan, 957 A.2d at 432�
33 (concluding gay and lesbian people have "been subjected to and stigmatized by a long
history of purposeful and invidious discrimination," and recounting numerous legal and
scientific authorities); Dean, 653 A.2d at 344�45 ("Discrimination against homosexuals has
been pervasive in both the public and the private sectors."); Conaway, 932 A.2d at 609
("Homosexual persons have been the object of societal prejudice by private actors as well as
by the judicial and legislative branches of federal and state governments.").

                                             39


reflect deep-seated prejudice rather than legislative rationality in pursuit of

some legitimate objective." Plyler, 457 U.S. at 216 n.14, 102 S. Ct. at 2394

n.14, 72 L. Ed. 2d at 799 n.14. This observation favors an elevated scrutiny

to uncover any such prejudice.

       2. Sexual orientation and the ability to contribute to society. A second

relevant consideration is whether the characteristic at issue--sexual

orientation--is related to the person's ability to contribute to society.

Heightened scrutiny is applied when the classification bears no relationship

to a person's ability to contribute to society.             The existence of this factor

indicates the classification is likely based on irrelevant stereotypes and

prejudice.     Kerrigan, 957 A.2d at 453.             A classification unrelated to a

person's ability to perform or contribute to society typically reflects

"prejudice and antipathy--a view that those in the burdened class are not as

worthy or deserving as others" or "reflect[s] outmoded notions of the relative

capabilities of persons with the characteristic."              Cleburne Living Ctr., 473

U.S. at 440�41, 105 S. Ct. at 3254�56, 87 L. Ed. 2d at 320�21.

       Not surprisingly, none of the same-sex marriage decisions from other

state courts around the nation have found a person's sexual orientation to

be indicative of the person's general ability to contribute to society.18 See,

       18The   County references plaintiffs' inability to procreate "naturally," presumably
pointing out each couple's inability to procreate without assistance. Plaintiffs' inability to
contribute children to society by procreation through sexual intercourse with each other
does not dictate the outcome of our consideration under this factor. The inquiry into gay
and lesbian people's ability to contribute to society is a general one, designed to signal
whether such classifications routinely risk elevating stereotype over ability. A person's
ability to procreate is merely one of many ways in which the person can contribute to
society. While the narrower consideration of plaintiffs' procreative abilities may be relevant
to whether section 595.2 ultimately passes judicial scrutiny, consideration of those abilities
is less helpful in determining which level of scrutiny to apply. That is, the inability of gay
and lesbian partners to contribute by procreation through sexual intercourse with each
other does not indicate whether legislative classifications based on sexual preference--which
can conceivably occur in any legislative subject matter area--will generally be based on
"stereotyped characteristics not truly indicative of their abilities." Murgia, 427 U.S. at 313,
96 S. Ct. at 2566, 49 L. Ed. 2d at 525.

                                              40


e.g., In re Marriage Cases, 183 P.3d at 442; Kerrigan, 957 A.2d at 434�36;

Dean v. District of Columbia, 653 A.2d 307, 345 (D.C. 1995); Conaway, 932

A.2d at 609. More importantly, the Iowa legislature has recently declared as

the public policy of this state that sexual orientation is not relevant to a

person's ability to contribute to a number of societal institutions other than

civil marriage.      See Iowa Code � 216.6 (employment); id. � 216.7 (public

accommodations); id. � 216.8 (housing); id. � 216.9 (education); id. � 216.10

(credit practices).19 Significantly, we do not construe Iowa Code chapter 216

to allow marriage between persons of the same sex, a construction expressly

forbidden in the Iowa Code. See id. � 216.18A ("[Chapter 216] shall not be


       19The    legislature has further indicated the irrelevancy of sexual orientation by
mandating sex education in the state's public schools be free of biases relating to sexual
orientation, Iowa Code � 279.50, and by securing personal freedom from violence and
intimidation due to sexual orientation, id. � 729A.1.               Likewise, numerous state
administrative regulations indicate sexual orientation is not relevant to a person's ability to
contribute to society. See Iowa Admin. Code r. 191--48.9 (prohibiting discrimination in
making or solicitation of viatical settlement contracts on basis of sexual orientation); id. r.
281--12 (preamble) (ensuring access to education meeting child's needs and abilities
regardless of sexual orientation); id. r. 281--12.1 (ordering equal opportunity in educational
programs regardless of sexual orientation); id. r. 281--12.3 (ordering school boards to
consider the potential disparate impact of student responsibility and discipline policies on
students because of students' sexual orientation); id. r. 281--68.4 (prohibiting
discrimination in admission process to public charter schools based on sexual orientation);
id. r. 282--25.3 (labeling denial of participation in benefits of educational program based on
sexual orientation an "unethical practice"); id. r. 282--26.3 (prohibiting licensed educators
from discriminating based on sexual orientation); id. r. 641--131.7 (allowing public health
department to take numerous adverse actions against emergency medical care personnel
who "practice, condone, or facilitate" discrimination against a patient on the basis of sexual
orientation); id. r. 641--131.8 (allowing public health department to take numerous adverse
actions against training program or continuing education providers who "practice, condone,
or facilitate" discrimination against a patient on the basis of sexual orientation); id. r. 641--
132.10 (allowing denial, probation, revocation, and suspension of authorized emergency
medical service programs that discriminate on the basis of sexual orientation); id. r. 645--
282.2 (prohibiting licensed social workers from discriminating on the basis of sexual
orientation); id. r. 645--363.2 (providing that sexual-orientation-based discrimination by
sign language interpreters or transliterators is unethical); id. r. 657--3.28 (providing that
sexual-orientation�based discrimination by pharmacy technicians is unethical); id. r. 657--
8.11 (same for licensed pharmacies, licensed pharmacists, and registered pharmacist-
interns); id. r. 661--81.2 (prohibiting entrance of information regarding sexual orientation
into Iowa law enforcement intelligence network information system in most circumstances).

                                             41


construed to allow marriage between persons of the same sex, in accordance

with chapter 595."). Rather, we merely highlight the reality that chapter 216

and    numerous       other    statutes     and    regulations      demonstrate       sexual

orientation is broadly recognized in Iowa to be irrelevant to a person's ability

to contribute to society.20        Those statutes and regulations reflect at least

some measure of legislative and executive awareness that discrimination

based on sexual orientation is often predicated on prejudice and stereotype

and further express a desire to remove sexual orientation as an obstacle to

the ability of gay and lesbian people to achieve their full potential. Therefore,

we must scrutinize more closely those classifications that suggest a law may

be based on prejudice and stereotype because laws of that nature are

"incompatible with the constitutional understanding that each person is to

be judged individually and is entitled to equal justice under the law." Plyler,

457 U.S. at 217 n.14, 102 S. Ct. at 2394 n.14, 72 L. Ed. 2d at 799 n.14.

Thus, although we do not interpret chapter 216 to allow same-sex marriage,

we rely on the legislative judgment underlying chapter 216 to determine the

appropriate level of scrutiny when sexual orientation is the basis for a

statutory classification. Based on Iowa statutes and regulations, it is clear

sexual orientation is no longer viewed in Iowa as an impediment to the

ability of a person to contribute to society.

       3. Immutability of sexual orientation. The parties, consistent with the

same-sex-marriage        scholarship,      opinions,     and    jurisprudence,       contest


        20Other federal and state authority supports such a conclusion. See Kerrigan, 957

A.2d at 435 (relying on Connecticut statutes banning discrimination based on sexual
orientation "in every important economic and social institution and activity that the
government regulates"); cf. Frontiero, 411 U.S. at 687, 93 S. Ct. at 1771, 36 L. Ed. 2d at 592
(Brennan, J., plurality opinion) (interpreting congressional protections against gender
discrimination as suggesting legislative determination such classifications are "inherently
invidious" and implying significance of "conclusion of coequal branch of Government" in
deciding whether to apply heightened scrutiny).

                                      42


whether sexual orientation is immutable or unresponsive to attempted

change. The County seizes on this debate to argue the summary judgment

granted by the district court in this case was improper because plaintiffs

could not prove, as a matter of fact, that sexuality is immutable.         This

argument, however, essentially limits the constitutional relevance of

mutability to those instances in which the trait defining the burdened class

is absolutely impervious to change. To evaluate this argument, we must first

consider the rationale for using immutability as a factor.

      A human trait that defines a group is "immutable" when the trait

exists "solely by the accident of birth," Frontiero v. Richardson, 411 U.S. 677,

686, 93 S. Ct. 1764, 1770, 36 L. Ed. 2d 583, 591 (1973) (Brennan, J.,

plurality opinion), or when the person with the trait has no ability to change

it, Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 360, 98 S. Ct. 2733, 2784,

57 L. Ed. 2d 750, 815 (1978). Immutability is a factor in determining the

appropriate level of scrutiny because the inability of a person to change a

characteristic that is used to justify different treatment makes the

discrimination violative of the rather " `basic concept of our system that legal

burdens should bear some relationship to individual responsibility.' "

Frontiero, 411 U.S. at 686, 93 S. Ct. at 1770, 36 L. Ed. 2d at 591 (Brennan,

J., plurality opinion) (quoting Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164,

175, 92 S. Ct. 1400, 1407, 31 L. Ed. 2d 768, 779 (1972)); accord Plyler, 457

U.S. at 217 n.14, 102 S. Ct. at 2394 n.14, 72 L. Ed. 2d at 799 n.14

("Legislation imposing special disabilities upon groups disfavored by virtue of

circumstances beyond their control suggests the kind of `class or caste'

treatment that the Fourteenth Amendment was designed to abolish."). Put

another way, when a characteristic is immutable, different treatment based

on this characteristic seems "all the more invidious and unfair."       Nan D.

                                      43


Hunter, The Sex Discrimination Argument in Gay Rights Cases, 9 J.L. & Pol'y

397, 403 (2001).    Additionally, immutability can relate to the scope and

permanency of the barrier imposed on the group. Temporary barriers tend

to be less burdensome on a group and more likely to actually advance a

legitimate governmental interest. Consequently, such barriers normally do

not warrant heightened scrutiny. See Sosna v. Iowa, 419 U.S. 393, 406, 95

S. Ct. 553, 561, 42 L. Ed. 2d 532, 544�45 (1975) (one-year residency

requirement for divorce permitted in part because the constraint was only

temporary); Vlandis v. Kline, 412 U.S. 441, 453, 93 S. Ct. 2230, 2236, 37

L. Ed. 2d 63, 72 (1973) (bona fide state resident requirement for college

tuition permissible when students are provided an opportunity to prove they

have become residents). The permanency of the barrier also depends on the

ability of the individual to change the characteristic responsible for the

discrimination.   This aspect of immutability may separate truly victimized

individuals from those who have invited discrimination by changing

themselves so as to be identified with the group.      As implied by Justice

Ferren, in dissent, in Dean:

             The degree to which an individual controls, or cannot
      avoid, the acquisition of the defining trait, and the relative ease
      or difficulty with which a trait can be changed, are relevant to
      whether a classification is "suspect" or "quasi-suspect" because
      this inquiry is one way of asking whether someone, rather than
      being victimized, has voluntarily joined a persecuted group and
      thereby invited the discrimination.

653 A.2d at 346 (Ferren, J., dissenting).

      Importantly, this background reveals courts need not definitively

resolve the nature-versus-nurture debate currently raging over the origin of

sexual orientation in order to decide plaintiffs' equal protection claims. The

constitutional relevance of the immutability factor is not reserved to those

instances in which the trait defining the burdened class is absolutely

                                           44


impossible to change.     Compare Sherman, 576 N.W.2d at 317 (suggesting

heightened scrutiny is applicable to gender classifications), with Iowa Code

� 144.23 (providing legal procedure to obtain new birth certificate indicating

change in gender). That is, we agree with those courts that have held the

immutability "prong of the suspectness inquiry surely is satisfied when . . .

the identifying trait is `so central to a person's identity that it would be

abhorrent for government to penalize a person for refusing to change [it].' "

Kerrigan, 957 A.2d at 438 (quoting Watkins v. U.S. Army, 875 F.2d 699, 726

(9th Cir. 1989) (Norris, J., concurring in the judgment)); see also In re

Marriage Cases, 183 P.3d at 442 ("Because a person's sexual orientation is

so integral an aspect of one's identity, it is not appropriate to require a

person to repudiate or change his or her sexual orientation in order to avoid

discriminatory treatment.").

      In this case, the County acknowledges sexual orientation is highly

resistant to change.     Additionally, "sexual orientation `forms a significant

part of a person's identity.' "     Kerrigan, 957 A.2d at 438 (quoting Able v.

United States, 968 F. Supp. 850, 863 (E.D.N.Y. 1997), rev'd on other

grounds, 155 F.3d 628 (2d Cir. 1998)).          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."   Id. at 438�39 (quoting Jantz v. Muci, 759 F. Supp. 1543,

1548 (D. Kan. 1991), rev'd on other grounds, 976 F.2d 623 (10th Cir. 1992)).

                                       45


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.

         4. Political powerlessness of lesbian and gay people. As observed, the

political power of the burdened class has been referenced repeatedly in

Supreme Court cases determining the level of scrutiny to be applied to a

given piece of legislation. Unfortunately, the Court has never defined what it

means to be politically powerless for purposes of this analysis, nor has it

quantified a maximum amount of political power a group may enjoy while

still receiving the protection from unfair discrimination accompanying

heightened scrutiny. The County points to the numerous legal protections

gay and lesbian people have secured against discrimination, and the County

argues those protections demonstrate gay and lesbian people are not a

politically powerless class. The County's argument implies gay and lesbian

people must be characterized by a complete, or nearly complete, lack of

political power before courts should subject sexual-orientation-based

legislative burdens to a heightened scrutiny.

         Notwithstanding the lack of a mathematical equation to guide the

analysis of this factor, a number of helpful general principles related to the

political power of suspect classes can be culled from the Supreme Court's

cases.     First, these cases show absolute political powerlessness is not

necessary to subject legislative burdens on a certain class to heightened

scrutiny. For example, females enjoyed at least some measure of political

power when the Supreme Court first heightened its scrutiny of gender

classifications. See Frontiero, 411 U.S. at 685�88 & n.17, 93 S. Ct. at 1769�

72 & n.17, 36 L. Ed. 2d at 591�92 & n.17 (Brennan, J., plurality opinion)

(subjecting gender classifications to heightened scrutiny after observing Civil

                                           46


Rights Act of 1964 and Equal Pay Act of 1963 prohibited sex discrimination

and noting "the position of women in America [had] improved markedly" by

1973 such that "women [did] not constitute a small and powerless

minority").

       Second, Supreme Court jurisprudence establishes that a group's

current political powerlessness is not a prerequisite to enhanced judicial

protection. "[I]f a group's current political powerlessness [was] a prerequisite

to a characteristic's being considered a constitutionally suspect basis for

differential treatment, it would be impossible to justify the numerous

decisions that continue to treat sex, race, and religion as suspect

classifications." In re Marriage Cases, 183 P.3d at 443. Race continues to

be a suspect classification, Grutter v. Bollinger, 539 U.S. 306, 326, 123 S. Ct.

2325, 2337, 156 L. Ed. 2d 304, 331 (2003), even though racial minorities

enjoy growing political power.21         Likewise, gender classifications receive

various forms of heightened scrutiny, even though women continue to gain

political power. See, e.g., Virginia, 518 U.S. at 532�33, 116 S. Ct. at 2275,

135 L. Ed. 2d at 751�52 (applying intermediate scrutiny).

       While a more in-depth discussion of the history of the political-power

factor is possible, see Kerrigan, 957 A.2d at 439�44, we are satisfied, for the

purpose of analyzing the Iowa Constitution, the political powerlessness

factor of the level-of-scrutiny inquiry does not require a showing of absolute

political powerlessness.     Rather, the touchstone of the analysis should be

"whether the group lacks sufficient political strength to bring a prompt end




        21By one measure--occupation of public office--the political power of racial

minorities is unbounded in this country today. This fact was on display January 20, 2009,
when Barack H. Obama, the African-American son of a native Kenyan, was inaugurated as
the forty-fourth President of the United States of America.

                                             47


to the prejudice and discrimination through traditional political means." Id.

at 444.

       It is also important to observe that the political power of gays and

lesbians,      while   responsible     for     greater     acceptance    and     decreased

discrimination, has done little to remove barriers to civil marriage. Although

a small number of state legislatures have approved civil unions for gay and

lesbian people without judicial intervention, no legislature has secured the

right to civil marriage for gay and lesbian people without court order.22 The

myriad statutes and regulatory protections against discrimination based on

sexual    orientation     in    such   areas      as     employment,    housing,     public

accommodations, and education have not only been absent in the area of

marriage, but legislative bodies have taken affirmative steps to shore up the

concept of traditional marriage by specifically excluding gays and lesbians.

Like Iowa, over forty other states have passed statutes or constitutional

amendments to ban same-sex marriages. See Ben Schuman, Note, Gods &

Gays: Analyzing the Same-Sex Marriage Debate From a Religious Perspective,

96 Geo. L.J. 2103, 2107�08 (2008) (recognizing forty-two states with laws

prohibiting     same-sex       marriage   as    of     November 8,     2007)   [hereinafter

Schuman]; Human Rights Campaign, Statewide Marriage Prohibitions (2008),

available       at     http://www.hrc.org/documents/marriage_prohibitions.pdf

(mapping states' enactment of marriage prohibitions). Thus, although equal

rights for gays and lesbians have been increasingly recognized in the political

       22See  Misha Isaak, Comment, "What's in a Name?": Civil Unions & the Constitutional
Significance of "Marriage," 10 U. Pa. J. Const. L. 607, 608 & n.7 (2008) [hereinafter Isaak]
(noting limited success in obtaining legal status for same-sex marriage, including passage of
same-sex civil unions in only two states and same-sex civil marriage in only one); Justin
Reinheimer, What Lawrence Should Have Said: Reconstructing an Equality Approach, 96
Cal. L. Rev. 505, 516�17 & n.46 (2008) (reviewing status of state laws relating to legal
recognition of same-sex relationships and noting only the California legislature has (twice)
passed a law allowing same-sex civil marriage (which was twice vetoed by that state's
governor)).

                                      48


arena, the right to civil marriage is a notable exception to this trend.

Consequently, the specific right sought in this case has largely lacked any

extensive political support and has actually experienced an affirmative

backlash.

      We are convinced gay and lesbian people are not so politically powerful

as to overcome the unfair and severe prejudice that history suggests

produces discrimination based on sexual orientation.        Gays and lesbians

certainly possess no more political power than women enjoyed four decades

ago when the Supreme Court began subjecting gender-based legislation to

closer scrutiny.     Additionally, gay and lesbian people are, as a class,

currently no more powerful than women or members of some racial

minorities. These facts demonstrate, at the least, the political-power factor

does not weigh against heightened judicial scrutiny of sexual-orientation-

based legislation.

      5. Classifications based on sexual orientation demand closer scrutiny.

In summarizing the rationale supporting heightened scrutiny of legislation

classifying on the basis of sexual orientation, it would be difficult to improve

upon the words of the Supreme Court of Connecticut:

      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

                                           49

       that those laws are not the product of such historical prejudice
       and stereotyping.

Kerrigan, 957 A.2d at 432. But see Conaway, 932 A.2d at 609�14 (holding

sexual-orientation-based legislation is not entitled to heightened scrutiny

because lesbian and gay people are not politically powerless); Andersen, 138

P.3d at 974 (determining plaintiffs failed to satisfy burden to prove

homosexuality is not an immutable trait and consequently holding sexual-

orientation-based distinctions do not demand closer judicial scrutiny). We

agree with the observations of the Connecticut Supreme Court. The factors

established to guide our determination of the level of scrutiny to utilize in

our examination of the equal protection claim in this case all point to an

elevated level of scrutiny. Accordingly, we hold that legislative classifications

based on sexual orientation must be examined under a heightened level of

scrutiny under the Iowa Constitution.

       H. Application of Heightened Scrutiny.                 Plaintiffs argue sexual-

orientation-based statutes should be subject to the most searching scrutiny.

The County asserts Iowa's marriage statute, section 595.2, may be reviewed,
at most, according to an intermediate level of scrutiny. Because we conclude

Iowa's same-sex marriage statute cannot withstand intermediate scrutiny,
we need not decide whether classifications based on sexual orientation are

subject to a higher level of scrutiny. Thus, we turn to a discussion of the

intermediate scrutiny standard.23

       23Plaintiffsand some amici urge us to abandon the traditional tiered analysis. This
view is supported by commentators, at least one of which points out no new suspect or
quasi-suspect class has been identified since the 1970s and argues the notion of suspect
classes is a dead letter in federal constitutional law. See Evan Gerstman, Same Sex
Marriage & the Constitution 61�63 (2004). The "rigidified" tiered approach has long had its
detractors, see, e.g., San Antonio Indep. Sch. Dist., 411 U.S. at 98, 93 S. Ct. at 1330, 36
L. Ed. 2d at 81 (Marshall, J., dissenting), and other states have exercised corresponding
sovereign authority to adopt balancing tests in equal protection cases, see, e.g., State v.
Ostrosky, 667 P.2d 1184, 1192�93 (Alaska 1983); Greenberg v. Kimmelman, 494 A.2d 294,
302 (N.J. 1985); Baker v. State, 744 A.2d 864, 878 (Vt. 1999). Although a more flexible
analysis is arguably more reflective of Iowa's constitutional equality mandates and related

                                              50


       1. Intermediate scrutiny standard.                 "To withstand intermediate

scrutiny, a statutory classification must be substantially related to an

important governmental objective." Clark v. Jeter, 486 U.S. 456, 461, 108

S. Ct. 1910, 1914, 100 L. Ed. 2d 465, 472 (1988).                          In applying an

intermediate standard to review gender-based classifications, the Supreme

Court has stated:         "Focusing on the differential treatment or denial of

opportunity for which relief is sought, the reviewing court must determine

whether the proffered justification is `exceedingly persuasive.' " Virginia, 518

U.S. at 532�33, 116 S. Ct. at 2275, 135 L. Ed. 2d at 751.                       To this end,

courts evaluate whether the proffered governmental objectives are important

and whether the statutory classification is " `substantially related to the

achievement of those objectives.' "            Id. at 533, 116 S. Ct. at 2275, 135

L. Ed. 2d at 751 (quoting Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724,

102 S. Ct. 3331, 3336, 73 L. Ed. 2d 1090, 1098 (1982)).

       2. Statutory classification:        exclusion of gay and lesbian people from

civil marriage.      To identify the statutory classification, we focus on the

"differential treatment or denial of opportunity for which relief is sought." Id.

at 532�33, 116 S. Ct. at 2275, 135 L. Ed. 2d at 751 (considering "categorical

exclusion" of women from institution of higher education). Plaintiffs bring

this lawsuit complaining of their exclusion from the institution of civil


jurisprudence, we recognize it is sometimes prudent to delay consideration of a new analysis
to subsequent cases when the change can be more fully explored. See RACI II, 675 N.W.2d
at 6 ("[I]t is prudent to delay any consideration of whether a different analysis is appropriate
to a case in which this issue was thoroughly briefed and explored." (citing In re Det. of
Garren, 620 N.W.2d 275, 280 n.1 (Iowa 2000)). And while plaintiffs have urged us to adopt
a balancing standard, the parties' application of equal protection principles to the facts of
this case has focused on the tiered approach. We also conclude we are able to adequately
fulfill our "constitutional obligation as the highest court of this sovereign state to determine
whether the challenged classification violates Iowa's constitutional equality provision" by
using the traditional approach in this case. Id. at 4. While we once again reaffirm our
sovereign authority "to employ a different analytical framework under state constitutional
provisions," RACI II, 675 N.W.2d at 5, we decline to adopt a new approach in this case.

                                              51


marriage.        In response, the County offers support for the legislature's

decision to statutorily establish heterosexual civil marriage.                   Because the

relevant focal point is the opportunity sought by the plaintiffs, the issue

presented by this lawsuit is whether the state has "exceedingly persuasive"

reasons for denying civil marriage to same-sex couples, not whether state-

sanctioned, heterosexual marriage is constitutional.                  See id. at 531, 116

S. Ct. at 2274, 135 L. Ed. 2d at 751. Thus, the question we must answer is

whether excluding gay and lesbian people from civil marriage is substantially

related to any important governmental objective.

       3. Governmental objectives.           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.24

       The first step in scrutinizing a statutory classification can be to

determine whether the objectives purportedly advanced by the classification

are important.        "The burden of justification is demanding and it rests

entirely on the State." Id. at 533, 116 S. Ct. at 2275, 135 L. Ed. 2d at 751.

Where we find, or can assume, the proffered governmental interests are

sufficiently weighty to be called "important," the critical inquiry is whether

these governmental objectives can fairly be said to be advanced by the

legislative classification. See, e.g., Fed. Land Bank v. Arnold, 426 N.W.2d

       24Other   jurisdictions considering the validity of legislative exclusion of gay and
lesbian people from civil marriage have considered alternative justifications. See, e.g.,
Kerrigan, 957 A.2d at 476 (uniformity with laws of other jurisdictions); id. at 518 (Zarella, J.,
dissenting) (regulation of heterosexual procreation); Hernandez v. Robles, 855 N.E.2d 1, 32�
34 (N.Y. 2006) (Kaye, C.J., dissenting) (moral disapproval, uniformity with other
jurisdictions); Andersen, 138 P.3d at 982 (avoid "the need to resolve the sometimes
conflicting rights and obligations of the same-sex couple and the necessary third party in
relation to a child"). We need not independently analyze these alternative justifications as
they are not offered to support the Iowa statute. See Virginia, 518 U.S. at 533, 116 S. Ct. at
2275, 135 L. Ed. 2d at 751 ("The justification must be genuine, not hypothesized or
invented post hoc in response to litigation.").

                                     52


153, 156 (Iowa 1988) ("First we must examine the legitimacy of the end to be

achieved; we then scrutinize the means used to achieve that end."). In this

analysis, we drill down to analyze the "link between classification and

objective." Romer, 517 U.S. at 632, 116 S. Ct. at 1627, 134 L. Ed. 2d at 866.

      a. Maintaining traditional marriage.    First, the County argues the

same-sex marriage ban promotes the "integrity of traditional marriage" by

"maintaining the historical and traditional marriage norm ([as] one between

a man and a woman)." This argument is straightforward and has superficial

appeal. 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.' " Tussman & tenBroek,

37 Cal. L. Rev. at 357 (quoting Truax v. Raich, 239 U.S. 33, 41, 36 S. Ct. 7,

10, 60 L. Ed. 131, 135 (1915)).

      This precise situation is presented by the County's claim that the

statute in this case exists to preserve the traditional understanding of

marriage. The governmental objective identified by the County--to maintain

the traditional understanding of marriage--is simply another way of saying

the governmental objective is to limit civil marriage to opposite-sex couples.

Opposite-sex marriage, however, is the classification made under the

statute, and this classification must comply with our principles of equal

                                       53


protection. Thus, the use of traditional marriage as both the governmental

objective and the classification of the statute transforms the equal protection

analysis into the question of whether restricting marriage to opposite-sex

couples accomplishes the governmental objective of maintaining opposite-sex

marriage.

        This approach is, of course, an empty analysis.          It permits a

classification to be maintained " `for its own sake.' " Kerrigan, 957 A.2d at

478 (quoting Romer, 517 U.S. at 635, 116 S. Ct. at 1629, 134 L. Ed. 2d at

868).    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.' " Id. (quoting Hernandez v. Robles, 855 N.E.2d

1, 33 (N.Y. 2006) (Kaye, C.J., dissenting)); see also Romer, 517 U.S. at 635,

116 S. Ct. at 1629, 134 L. Ed. 2d at 868 (rejecting "classification of persons

undertaken for its own sake").

        "[W]hen tradition is offered to justify preserving a statutory scheme

that has been challenged on equal protection grounds, we must determine

whether the reasons underlying that tradition are sufficient to satisfy

constitutional requirements."     Kerrigan, 957 A.2d at 478�79 (emphasis

added). Thus, we must analyze the legislature's objective in maintaining the

traditional classification being challenged.

        The reasons underlying traditional marriage may include the other

objectives asserted by the County, objectives we will separately address in

                                             54


this decision. However, some underlying reason other than the preservation

of tradition must be identified.25 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.

       b. Promotion of optimal environment to raise children.                        Another

governmental objective proffered by the County is the promotion of "child

rearing by a father and a mother in a marital relationship which social

scientists say with confidence is the optimal milieu for child rearing." This

objective implicates the broader governmental interest to promote the best

interests of children.       The "best interests of children" is, undeniably, an

important governmental objective.             Yet, we first examine the underlying

premise proffered by the County that the optimal environment for children is

to be raised within a marriage of both a mother and a father.

       Plaintiffs presented an abundance of evidence and research, confirmed

by our independent research, supporting the proposition that the interests of

children are served equally by same-sex parents and opposite-sex parents.

On the other hand, we acknowledge the existence of reasoned opinions that

dual-gender parenting is the optimal environment for children.                         These

opinions, while thoughtful and sincere, were largely unsupported by reliable

scientific studies.26

       25The   preservation of traditional marriage could only be a legitimate reason for the
classification if expanding marriage to include others in its definition would undermine the
traditional institution. 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. Benjamin G. Ledsham, Note,
Means to Legitimate Ends: Same-Sex Marriage through the Lens of Illegitimacy-Based
Discrimination, 28 Cardozo L. Rev. 2373, 2388 (2007).
       26The  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-

                                            55


       Even assuming there may be a rational basis at this time to believe the

legislative classification advances a legitimate government interest, this

assumed fact would not be sufficient to survive the equal protection analysis

applicable in this case. In order to ensure this classification based on sexual

orientation is not borne of prejudice and stereotype, intermediate scrutiny

demands a closer relationship between the legislative classification and the

purpose of the classification than mere rationality.                Under intermediate

scrutiny,    the   relationship     between      the   government's       goal   and     the

classification employed to further that goal must be "substantial."                  Clark,

486 U.S. at 461, 108 S. Ct. at 1914, 100 L. Ed. 2d at 472.                     In order to

evaluate that relationship, it is helpful to consider whether the legislation is

over-inclusive or under-inclusive.             See RACI II, 675 N.W.2d at 10

(considering under-inclusion and over-inclusion even in the rational basis

context).

       A statute is under-inclusive when the classification made in the

statute "does not include all who are similarly situated with respect to the

purpose of the law."        Tussman & tenBroek, 37 Cal. L. Rev. at 348.                  An

under-inclusive statute means all people included in the statutory

classification have the trait that is relevant to the aim of the statute, but

other people with the trait are not included in the classification. See id. A

statute is over-inclusive when the classification made in the statute includes

more persons than those who are similarly situated with respect to the

purpose of the law. See id. at 351. An over-inclusive statute "imposes a

burden upon a wider range of individuals than are included in the class of

those" with the trait relevant to the aim of the law. Id. As the degree to


adjusted adults is based more on stereotype than anything else. In any event, we do not
address whether there is a rational basis for the marriage statute, as the sexual-orientation
classification made by the statute is subject to a heightened standard of scrutiny.

                                         56


which a statutory classification is shown to be over-inclusive or under-

inclusive increases, so does the difficulty in demonstrating the classification

substantially furthers the legislative goal.

         We begin with the County's argument that the goal of the same-sex

marriage ban is to ensure children will be raised only in the optimal milieu.

In pursuit of this objective, the statutory exclusion of gay and lesbian people

is both under-inclusive and over-inclusive.          The civil marriage statute is

under-inclusive because it does not exclude from marriage other groups of

parents--such as child abusers, sexual predators, parents neglecting to

provide child support, and violent felons--that are undeniably less than

optimal parents.       Such under-inclusion tends to demonstrate that the

sexual-orientation-based      classification    is   grounded      in   prejudice   or

"overbroad generalizations about the different talents, capacities, or

preferences" of gay and lesbian people, rather than having a substantial

relationship to some important objective. See Virginia, 518 U.S. at 533, 116

S. Ct.    at   2275,   135   L. Ed. 2d   at    751   (rejecting   use   of   overbroad

generalizations to classify).    If the marriage statute was truly focused on

optimal parenting, many classifications of people would be excluded, not

merely gay and lesbian people.

         Of course, "[r]eform may take one step at a time, addressing itself to

the phase of the problem which seems most acute to the legislative mind."

Knepper v. Monticello State Bank, 450 N.W.2d 833, 837 (Iowa 1990) (citing

Williamson v. Lee Optical of Okla., 348 U.S. 483, 489, 75 S. Ct. 461, 465, 99

L. Ed. 563, 573 (1955)). Thus, "[t]he legislature may select one phase of one

field and apply a remedy there, neglecting the others." Williamson, 348 U.S.

at 489, 75 S. Ct. at 465, 99 L. Ed. at 573.              While a statute does not

automatically violate equal protection merely by being under-inclusive, the

                                      57


degree of under-inclusion nonetheless indicates the substantiality of the

relationship between the legislative means and end.

      As applied to this case, it could be argued the same-sex marriage ban

is just one legislative step toward ensuring the optimal environment for

raising children. Under this argument, the governmental objective is slightly

more modest. It seeks to reduce the number of same-sex parent households,

nudging our state a step closer to providing the asserted optimal milieu for

children.   Even evaluated in light of this narrower objective, however, the

ban on same-sex marriage is flawed.

      The ban on same-sex marriage is substantially over-inclusive because

not all same-sex couples choose to raise children. Yet, the marriage statute

denies civil marriage to all gay and lesbian people in order to discourage the

limited number of same-sex couples who desire to raise children. In doing

so, the legislature includes a consequential number of "individuals within

the statute's purview who are not afflicted with the evil the statute seeks to

remedy."    Conaway, 932 A.2d at 649 (Raker, J., concurring in part and

dissenting).

      At the same time, the exclusion of gay and lesbian people from

marriage is under-inclusive, even in relation to the narrower goal of

improving child rearing by limiting same-sex parenting. Quite obviously, the

statute does not prohibit same-sex couples from raising children. Same-sex

couples currently raise children in Iowa, even while being excluded from civil

marriage, and such couples will undoubtedly continue to do so. Recognition

of this under-inclusion puts in perspective just how minimally the same-sex

marriage ban actually advances the purported legislative goal.      A law so

simultaneously over-inclusive and under-inclusive is not substantially

related to the government's objective. In the end, a careful analysis of the

                                            58


over- and under-inclusiveness of the statute reveals it is less about using

marriage to achieve an optimal environment for children and more about

merely precluding gay and lesbian people from civil marriage.

       If the statute was truly about the best interest of children, some

benefit to children derived from the 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.

       The ban on same-sex civil marriage can only logically be justified as a

means to ensure the asserted optimal environment for raising children if

fewer children will be raised within same-sex relationships27 or more

children will be raised in dual-gender marriages. Yet, the same-sex-marriage

ban will accomplish these outcomes only when people in same-sex

relationships choose not to raise children without the benefit of marriage or

when children are adopted by dual-gender couples who would have been

adopted by same-sex couples but for the same-sex civil marriage ban. We

discern no substantial support for this proposition.               These outcomes, at

best, are minimally advanced by the classification.                    Consequently, a

classification that limits civil marriage to opposite-sex couples is simply not

substantially related to the objective of promoting the optimal environment


       27The  County does not specifically contend the goal of Iowa's marriage statute is to
deter gay and lesbian couples from having children. Such a claim would raise serious due
process concerns. See Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S. Ct. 1029, 1038, 31
L. Ed. 2d 349, 362 (1972) (noting due process concern with governmental interference with
decision to conceive children).

                                            59


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.

      c. Promotion    of     procreation.        The   County   also    proposes   that

government endorsement of traditional civil marriage will result in more

procreation. It points out that procreation is important to the continuation

of the human race, and opposite-sex couples accomplish this objective

because procreation occurs naturally within this group.                In contrast, the

County points out, same-sex couples can procreate only through assisted

reproductive techniques, and some same-sex couples may choose not to

procreate.    While heterosexual marriage does lead to procreation, the

argument by the County fails to address the real issue in our required

analysis of the objective: whether exclusion of gay and lesbian individuals

from the institution of civil marriage will result in more procreation?              If

procreation is the true objective, then the proffered classification must work

to achieve that objective.

      Conceptually, the promotion of procreation as an objective of marriage

is compatible with the inclusion of gays and lesbians within the definition of

marriage. 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

                                       60


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.

      d. Promoting stability in opposite-sex relationships. A fourth suggested

rationale supporting the marriage statute is "promoting stability in opposite

sex relationships." While the institution of civil marriage likely encourages

stability in opposite-sex relationships, we must evaluate whether excluding

gay and lesbian people from civil marriage encourages stability in opposite-

sex relationships. The County offers no reasons that it does, and we can

find none.    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.

      e. Conservation of resources. The conservation of state resources is

another objective arguably furthered by excluding gay and lesbian persons

from civil marriage. The argument is based on a simple premise: couples

who are married enjoy numerous governmental benefits, so the state's fiscal

burden associated with civil marriage is reduced if less people are allowed to

marry.   In the common sense of the word, then, it is "rational" for the

legislature to seek to conserve state resources by limiting the number of

couples allowed to form civil marriages.      By way of example, the County

hypothesizes that, due to our laws granting tax benefits to married couples,

the State of Iowa would reap less tax revenue if individual taxpaying gay and

lesbian people were allowed to obtain a civil marriage.     Certainly, Iowa's

marriage statute causes numerous government benefits, including tax

                                             61


benefits, to be withheld from plaintiffs.28              Thus, the ban on same-sex

marriages may conserve some state resources. Excluding any group from

civil marriage--African-Americans, illegitimates, aliens, even red-haired

individuals--would conserve state resources in an equally "rational" way.

Yet, such classifications so obviously offend our society's collective sense of

equality that courts have not hesitated to provide added protections against

such inequalities.

       One primary requirement of the equal protection clause is a more

substantial relationship between the legislative goal and the means used to

attain the goal. When heightened scrutiny is applicable, the means must

substantially further the legislative end.            Consequently, in this case, the

sexual-orientation-based         classification    must      substantially     further     the

conservation-of-resources objective.

       As observed in our analysis of the other reasons offered in support of

the marriage statute, significant degrees of over-inclusion and under-


       28Plaintiffs identify over two hundred Iowa statutes affected by civil-marriage status.
See, e.g., Iowa Code � 85.31 (dependent surviving spouse receives benefits when spouse
death caused by work injury); id. � 135J.1(4) (hospice patient's family includes spouse); id.
� 142C.4 (spouse has power to make decision concerning anatomical gifts); id. � 144A.7
(patient's spouse determines application of life-sustaining procedures in absence of
declaration); id. � 144C.5 (surviving spouse controls disposition of decedent's remains in
absence of declaration); id. � 252A.3(1) (spouse liable for support of other spouse); id.
� 252A.3(4) (children of married parents legitimate); id. � 422.7 (spouses may file joint tax
return); id. � 422.9(1) (optional standard deduction for married taxpayers); id. � 422.12(1)(b)
(spouses eligible for personal exemption credit); id. � 450.3 (inheritance rights of surviving
spouses); id. � 450.9 (surviving spouse exempt from inheritance tax on property passed from
decedent spouse); id. � 450.10(6) (spousal allowance for surviving spouse); id. � 523I.309
(surviving spouse must consent to decedent spouse's interment); id. � 613.15 (spouse may
recover value of services and support of decedent spouse for wrongful death or negligent
injury); id. � 622.9 (restriction of testimony of communication between husband and wife);
id. � 633.211(1) (surviving spouse receives decedent spouse's entire estate in intestacy); id.
� 633.236 (surviving spouse has right to elective share); id. � 633.272 (surviving spouse
takes under partial intestacy if elective share not exercised); id. � 633.336 (damages for
wrongful death). The Government Accounting Office, as of 2005, had identified more than
1000 federal legal rights and responsibilities derived from marriage. Isaak, 10 U. Pa. J.
Const. L. at 607 n.6.

                                       62


inclusion shed light on the true relationship between exclusion of gay and

lesbian people from civil marriage and the goal of conserving governmental

resources.     Exclusion of all same-sex couples is an extremely blunt

instrument for conserving state resources through limiting access to civil

marriage.     In other words, the exclusion of same-sex couples is over-

inclusive because many same-sex couples, if allowed to marry, would not

use more state resources than they currently consume as unmarried

couples.     To reference the County's example, while many heterosexual

couples who have obtained a civil marriage do not file joint tax returns--or

experience any other tax benefit from marital status--many same-sex

couples may not file a joint tax return either. The two classes created by the

statute--opposite-sex couples and same-sex couples--may use the same

amount of state resources. Thus, the two classes are similarly situated for

the purpose of conserving state resources, yet the classes are treated

differently by the law. In this way, sexual orientation is a flawed indicator of

resource usage.

      Just as exclusion of same-sex couples from marriage is a blunt

instrument, however, it is also significantly undersized if the true goal is to

conserve state resources.     That is to say, the classification is under-

inclusive.   The goal of conservation of state resources would be equally

served by excluding any similar-sized group from civil marriage.        Indeed,

under the County's logic, more state resources would be conserved by

excluding groups more numerous than Iowa's estimated 5800 same-sex

couples (for example, persons marrying for a second or subsequent time).

Importantly, there is also no suggestion same-sex couples would use more

state resources if allowed to obtain a civil marriage than heterosexual

couples who obtain a civil marriage.

                                     63


      Such over-inclusion and under-inclusion demonstrates the trait of

sexual orientation is a poor proxy for regulating aspiring spouses' usage of

state resources. This tenuous relationship between the classification and its

purpose demonstrates many people who are similarly situated with respect

to the purpose of the law are treated differently. As a result, the sexual-

orientation-based classification does not substantially further the suggested

governmental interest, as required by intermediate scrutiny.

      4. Conclusion.     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.

      I. Religious Opposition to Same-Sex Marriage. 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

                                            64


notion of same-sex marriage unsettling.29             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.30      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




       29A survey in the Des Moines Register in 2008 found 28.1% of individuals surveyed

supported same-sex marriage, 30.2% opposed same-sex marriage but supported civil
unions, and thirty-two percent of respondents opposed both same-sex marriage and civil
unions. Erin Jordan, About 6 in 10 Iowans back same-sex unions, poll finds, Des Moines
Register, Nov. 26, 2008, at 4B. The Des Moines Register survey is consistent with a national
survey by the PEW Research Center in 2003. This PEW survey found that fifty-nine percent
of Americans oppose same-sex marriage, and thirty-two percent favor same-sex marriage.
Schuman, 96 Geo. L.J. at 2108. However, opposition to same-sex marriage jumped to
eighty percent for people "with a high level of religious commitment," with only twelve
percent of such people in favor of same-sex marriage. Id.
       30Schuman, 96 Geo. L.J. at 2109�12 (discussing the religious arguments against

same-sex marriage found in both the Old and New Testaments of the Bible, supporting a
conclusion that homosexuality is considered to be a sin and same-sex marriage to be an
extension of that sin).

                                           65


Iowa and around the nation have strong religious views that yield the

opposite conclusion.31

       This contrast of opinions in our society largely explains the absence of

any religion-based rationale to test the constitutionality of Iowa's same-sex

marriage ban. 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. See Iowa Const. art. I, � 3 ("The general

assembly shall make no law respecting an establishment of religion . . . .").

The statute at issue in this case does not prescribe a definition of marriage

for religious institutions. Instead, the statute declares, "Marriage is a civil

contract" and then regulates that civil contract. Iowa Code � 595A.1. Thus,

in pursuing our task in this case, we proceed as civil judges, far removed

from the theological debate of religious clerics, and focus only on the concept

of civil marriage and the state licensing system that identifies a limited class

of persons entitled to secular rights and benefits associated with civil

marriage.

       We, of course, have a constitutional mandate to protect the free

exercise of religion in Iowa, which includes the freedom of a religious

organization to define marriages it solemnizes as unions between a man and

a woman. See Iowa Const. art. I, � 3 ("The general assembly shall make no

law . . . prohibiting the free exercise [of religion] . . . ."). This mission to

protect religious freedom is consistent with our task to prevent government


        31Many religions recognize same-sex marriage, such as Buddhists, Quakers,

Unitarians, and Reform and Reconstructionist Jews. Schuman, 96 Geo. L.J. at 2108.
Amicus curiae Iowa and National Faith Leaders, Communities, and Scholars point out the
United Church of Christ encourages, but does not require, its local congregations to adopt
wedding policies that do not discriminate between heterosexual, gay, and lesbian couples,
while the Episcopal Church permits priests to perform liturgies and blessings at same-sex
weddings as a matter of pastoral care. Additionally, many groups and clergy within various
religions are working to achieve inclusion of same-sex marriage. Id. at 2108�09.

                                        66


from endorsing any religious view. State government can have no religious

views, either directly or indirectly, expressed through its legislation.

Knowlton v. Baumhover, 182 Iowa 691, 710, 166 N.W. 202, 208 (1918). This

proposition is the essence of the separation of church and state.

      As a result, 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.

Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 483, 54 S. Ct. 231, 256,

78 L. Ed. 413, 452 (1934) (Sutherland, J. dissenting).

      In the final analysis, we give respect to the views of all Iowans on the

issue of same-sex marriage--religious or otherwise--by giving respect to our

constitutional principles. These principles require that the state recognize

both opposite-sex and same-sex civil marriage. Religious doctrine and views

contrary to this principle of law are unaffected, and people can continue to

associate with the religion that best reflects their views.             A religious

denomination can still define marriage as a union between a man and a

woman, and a marriage ceremony performed by a minister, priest, rabbi, or

other person ordained or designated as a leader of the person's religious

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faith does not lose its meaning as a sacrament or other religious institution.

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.

       J. Constitutional Infirmity. 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.32
       V. Remedy.

       Because our civil marriage statute fails to provide equal protection of

the law under the Iowa Constitution, we must decide how to best remedy the


       32Our  decision that the statute violates the equal protection clause of the Iowa
Constitution makes it unnecessary to address the other bases for plaintiffs' challenge to
Iowa's marriage statute.

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constitutional violation. The sole remedy requested by plaintiffs is admission

into the institution of civil marriage.      The County does not suggest an

alternative remedy.     The high courts of other jurisdictions have remedied

constitutionally invalid bans on same-sex marriage in two ways.             Some

courts have ordered gay and lesbian people to be allowed to access the

institution of civil marriage.   See In re Marriage Cases, 183 P.3d at 453;

Kerrigan, 957 A.2d at 480 ("definition of marriage necessarily must be

expanded" to include same-sex couples); Opinions of the Justices to the

Senate, 802 N.E.2d 565, 571 (Mass. 2004). Other courts have allowed their

state legislatures to create parallel civil institutions for same-sex couples.

See Lewis v. Harris, 908 A.2d 196, 221 (N.J. 2006); Baker v. State, 744 A.2d

864, 887 (Vt. 1999).

      Iowa Code section 595.2 is unconstitutional because the County has

been unable to identify a constitutionally adequate justification for excluding

plaintiffs from the institution of civil marriage. A new distinction based on

sexual orientation would be equally suspect and difficult to square with the

fundamental principles of equal protection embodied in our constitution.

This record, our independent research, and the appropriate equal protection

analysis do not suggest the existence of a justification for such a legislative

classification   that   substantially   furthers   any   governmental   objective.

Consequently, the language in Iowa Code section 595.2 limiting civil

marriage to a man and a woman must be stricken from the statute, and the

remaining statutory language must be interpreted and applied in a manner

allowing gay and lesbian people full access to the institution of civil

marriage.

                                            69


       VI. Conclusion.

       The district court properly granted summary judgment to plaintiffs.

Iowa Code section 595.2 violates the equal protection provision of the Iowa

Constitution.        Our     decision     becomes      effective    upon     issuance        of

procedendo.33

       AFFIRMED.

       All justices concur.




       33See  Iowa R. App. P. 6.1208 (stating procedendo shall issue twenty-one days after
the opinion is filed unless a petition for rehearing is filed).

posted by cboldt  # 4/03/2009 11:28:00 AM