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.

 Roger J. Kuhle and Michael B. O’Meara, Assistant County Attorneys, 

for appellant. 

 Dennis W. Johnson of Dorsey & Whitney LLP, Des Moines, and 

Camilla B. Taylor and Kenneth D. Upton, Jr. of Lambda Legal Defense & 

Education Fund, Inc., Chicago, Illinois, for appellees. 
2 

 John M. Murray of Murray & Murray, PLC, Storm Lake; 

Paul Benjamin Linton, Special Counsel, Thomas More Society, Northbrook, 

Illinois; Paul R. Devin, Supreme Advocate, Knights of Columbus, New Haven, 

Connecticut; and Thomas Brejcha, President and Chief Counsel, Thomas 

More Society, Chicago, Illinois, for amicus curiae Knights of Columbus. 

 Norman L. Springer, Jr. of McGinn McGinn Jennings & Springer, 

Council Bluffs, Mathew D. Staver, Stephen M. Crampton, Mary E. McAlister, 

and David M. Corry, Liberty Counsel, Lynchburg, Virginia, for amicus curiae 

Liberty Counsel. 

 Michael J. Manno, West Des Moines, for amici curiae Jews Offering 

New Alternatives to Homosexuality, Parents and Friends of Ex-Gays & Gays, 

and Evergreen International. 

 Jason M. Steffens of Simmons Perrine PLC, Cedar Rapids, and 

Roger T. Severino of The Becket Fund for Religious Liberty, Washington, 

D.C., for amicus curiae The Becket Fund for Religious Liberty. 

 Andrew J. Boettger of Hastings & Gartin, LLP, Ames, and Steven W. 

Fitschen, Barry C. Hodge, and Nathan A. Driscoll of The National Legal 

Foundation, Virginia Beach, Virginia, for amicus curiae The National Legal 

Foundation. 

 David James Hanson of Hofmeyer & Hanson PC, Fayette, and 

Joshua K. Baker of Institute for Marriage and Public Policy, Manassas, 

Virginia, for amici curiae James Q. Wilson, et al., Legal and Family Scholars. 
3 

 Timm W. Reid of Galligan, Reid & Galligan, P.C. and Iowa Liberty and 

Justice Center, Des Moines, and Benjamin W. Bull, Brian W. Raum, and 

James A. Campbell of Alliance Defense Fund, Scottsdale, Arizona, for amicus 

curiae Iowa Legislators. 

 Robert R. Anderson, Vinton, Stuart J. Roth of American Center for Law 

& Justice, Washington, D.C., Laura B. Hernandez of The American Center 

for Law & Justice, Virginia Beach, Virginia, and Vincent P. McCarthy of 

American Center for Law & Justice NE, Litchfield, Connecticut, for amicus 

curiae The American Center for Law & Justice. 

 Daniel DenBeste of Elderkin & Pirnie, PLC, Cedar Rapids, and 

Monte Neil Stewart of Marriage Law Foundation, Orem, Utah, for amici 

curiae United Families International, Family Watch International, and 

Family Leader Foundation. 

Michael A. Giudicessi, Christian S. Walker, Karin A. Johnson, and 

Nicole Nayima of Faegre & Benson LLP, Des Moines; Michael A. Ponto of 

Faegre & Benson LLP, Minneapolis, Minnesota; and Evan Wolfson, Executive 

Director of Freedom to Marry, New York City, New York, for amicus curiae 

Freedom to Marry. 

 Randall C. Wilson of Iowa Civil Liberties Union, Des Moines, and 

John A. Knight of American Civil Liberties Union Foundation, Chicago, 

Illinois, for amici curiae The Bazelon Center for Mental Health Law, Iowa 

Protection and Advocacy Services, Inc., National Council on Independent 

Living, and the National Senior Citizens Law Center. 
4 

 David H. Goldman, Brent A. Cashatt, and Kodi A. Petersen of Babich, 

Goldman, Cashatt & Renzo, P.C., Des Moines, and Suzanne B. Goldberg, 

Clinical Professor of Law and Director of Sexuality and Gender Law Clinic 

Columbia Law School, New York City, New York, for amici curiae Robert C. 

Hunter, Jean C. Love, and Maura Strassberg, Iowa Constitutional Law 

Scholars. 

 Gordon R. Fischer of Bradshaw, Fowler, Proctor & Fairgrave, P.C., 

Des Moines, and Hugh S. Balsam and Kara J. Bruce of Locke Lord Bissell & 

Liddell, LLP, Chicago, Illinois, for amici curiae Certain Current and Former 

Iowa Elected Officials. 

 Ivan T. Webber of Ahlers & Cooney, P.C., Des Moines, and 

Tobias Barrington Wolff of University of Pennsylvania Law School, 

Philadelphia, Pennsylvania, for amici curiae OneIowa; The Iowa Chapters of 

Parents, Families and Friends of Lesbians and Gays; The Equal Justice 

Society; The National Black Justice Coalition; The Mexican American Legal 

Defense and Educational Fund; The Zuna Institute; The Asian American 

Justice Center; The Southern Poverty Law Center; People for the American 

Way Foundation; The Asian American Legal Defense and Education Fund; 

and The Immigrants’ Rights Program of the American Friends Service 

Committee. 

 Harvey L. Harrison of Harrison & Dietz-Kilen, P.L.C., Des Moines, and 

Mary Bonauto, Bennett H. Klein, and Janson Wu of Gay & Lesbian 

Advocates & Defenders, Boston, Massachusetts, for amici curiae 

Massequality, Massachusetts Gay and Lesbian Political Caucus, Gay & 
5 

Lesbian Advocates & Defenders, various Massachusetts Senators and 

Representatives, Equality Federation, Garden State Equality, Love Makes a 

Family, Vermont Freedom to Marry Task Force, Human Rights Campaign, 

Human Rights Campaign Foundation, and National Gay and Lesbian Task 

Force. 

 Catherine C. Dietz-Kilen of Harrison & Dietz-Kilen, P.L.C., Des Moines, 

for amicus curiae Iowa and National Faith Leaders, Communities and 

Scholars. 

 Charles E. Gribble and Matthew T. Oetker of Parrish, Kruidenier, 

Dunn, Boles, Gribble, Cook, Parrish, Gentry & Fisher, L.L.P., Des Moines, 

and Aderson B. Francois, Caroline Boucher, Amy E. Hatcher, and Damien G. 

Scott of Civil Rights Clinic, Howard University School of Law, for amicus 

curiae Howard University School of Law Civil Rights Clinic. 

 Mark E. Schantz of College of Law University of Iowa, Iowa City, and 

Stephen Sanders and Jeffrey W. Sarles of Mayer Brown LLP, Chicago, 

Illinois, for amici curiae Iowa Professors of Law and History. 

 Jim Quilty of Crawford & Quilty, Des Moines, and Vivian L. Polak, 

Jonathan A. Damon, Spencer R. Wood, Suman Chakraborty and Emily A. 

Gianquinto of Dewey & LeBoeuf LLP, New York City, New York, for amici 

curiae The National Association of Social Workers, The National Association 

of Social Workers-Iowa Chapter, Youth and Shelter Services, and Middleton 

Center for Children’s Rights at Drake University Law School. 
6 

 Roxanne Barton Conlin of Roxanne Conlin & Associates, P.C., 

Des Moines, Jennifer K. Brown and Julie F. Kay of Legal Momentum, 

New York City, New York, and Laura W. Brill, Elizabeth L. Rosenblatt, and 

Richard M. Simon of Irell & Manella, Los Angeles, California, for amici curiae 

Women’s Rights Organizations. 

 Joseph M. Barron, Des Moines; Richard T. Greenberg of 

McGuirewoods LLP, Chicago, Illinois; and Shannon Price Minter of National 

Center for Lesbian Rights, Washington, D.C., for amici curiae Professors of 

Family Law and Jurisprudence. 

 Amy L. Reasner of Lynch Dallas, P.C., Cedar Rapids, and Carmine D. 

Boccuzzi of Cleary Gottlieb Steen & Hamilton LLP, New York City, New York, 

for amicus curiae Social Science Academics and Associations. 

 Thomas A. Newkirk and Paige E. Fiedler of Fiedler & Newkirk PLC, 

Urbandale; Paul M. Smith, William M. Hohengarten, and Anjan Choudhury 

of Jenner & Block LLP, Washington, D.C., and Nathalie F.P. Gilfoyle of 

American Psychological Association, Washington, D.C., for amicus curiae 

The American Psychological Association. 

 Daniel L. Bray of Bray & Klockau, P.L.C., Iowa City, and Diana E. 

Richmond of Sideman & Bancroft LLP, San Francisco, California, for amici 

curiae The American Academy of Matrimonial Lawyers, Joan and Lyle 

Middleton Center for Children’s Rights, Drake Legal Clinic, and Pediatricians 

and Family Physicians. 
7 

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, publicemployee 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 (JulyAugust 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 twentyfive 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 SameSex 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.; Elizabeth F. Emens, Intimate 

Discrimination: The State’s Role in the Accidents of Sex and Love, 122 Harv. L. Rev. 1307, 

1315 & n.18 (2009) (noting only Massachusetts and Connecticut allow same-sex marriage, 

while the legality of same-sex marriage in California is currently “in flux”). 
19 

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. 
20 

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 policymaking 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, Note, 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 samesex 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 quasisuspect 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-orientationbased 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-orientationbased 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 pharmacistinterns); 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-orientationbased 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 
49 

to ensure 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 sexualorientation-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 sexualorientation-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 

 23Plaintiffs and 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 statesanctioned, 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 underinclusive 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 oppositesex 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 overinclusive 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 underinclusive. 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 sexualorientation-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 32% 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 59% of Americans oppose 

same-sex marriage, and 32% favor same-sex marriage. Schuman, 96 Geo. L.J. at 2108. 

However, opposition to same-sex marriage jumped to 80% for people “with a high level of 

religious commitment,” with only 12% 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 
67 

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. 
68 

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).