Tuesday, December 9, 2008

On the U.S. Supremes and the Iowa Supremes

Tomorrow I'll be going to the Supreme Court to see arguments in Ashcroft v. Iqbal and AT&T v. Hulteen. A preview of the Hulteen case by yours truly appears today at ACSblog.

The Iowa Supreme Court heard oral argument today in Varnum v. Brown, the sole marriage equality case currently pending before a state high court. Follow the link to watch the arguments, or check out Arthur Leonard's recap.

Dennis Johnson, an Iowa attorney cooperating with Lambda Legal, argued powerfully on behalf of the plaintiffs. I was particularly struck with his response to the inevitable "what about polygamy?" question. Rather than seize on the usual arguments that multiple marriage is associated with abuse and harmful to children and women, or otherwise trying to distance same-sex couples morally from polygamists, Johnson gave the response what I have always thought to be the obvious, sensible response: unlike same-sex marriage, polygamy raises numerous new, practical questions about legal rights and responsibilities that may justify different treatment by the legislature. I'm not sure that this is ultimately persuasive as a policy argument, but as a constitutional argument is suffices. The practical legal consequences of bilateral marriage are the same without regard to gender. Multilateral marriage raises new questions about consent, custody, inheritance, and a number of other matters, all of which would have to be sorted out by the legislature and/or the courts -- and in the context of litigating recognition for same-sex couples, that is all that needs to be said.

No comments: