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Home > Journals > Michigan Law Review > MLR FI > Vol. 108

 

Abstract

In Varnum v. Brien, decided April 3rd of this year, the Iowa Supreme Court unanimously struck down the state's statutory ban on same-sex marriage. In a remarkably clear and thoughtful opinion, Justice Mark Cady explored in depth the immutability of sexual identity and the appropriate standard of judicial review for legislative classifications based on sexual orientation-adopting (for now) an intermediate level of scrutiny. The decision marked the first significant legal victory for same-sex marriage outside of New England (with the exception of a short-term success in Hawaii), and served notice that the gay rights movement—once thought compelling only among northeastern "liberal elites"—may be carving out a foothold in America's heartland. As events in Vermont and Connecticut have demonstrated, however, constructing the civil apparatus of same-sex marriage requires a deft legislative hand: there are, for example, complex intersections of state and federal law (tax, healthcare, etc.) to consider; and, perhaps more significantly, there are inevitable boundary disputes along the constitutional border between equal protection and religious liberty. Both of these states have restructured their tax code to account for same-sex couples without reference to federal law, and both have adopted statutory language that narrowly exempts religious groups from otherwise applicable requirements of anti-discrimination law. While Iowa can probably look to the northeast for help in resolving the former complications, recent polls indicate that Midwesterners tend to take their religion more seriously than do modern New Englanders, and so the state will likely have to cut its own trail through the thickets of religious freedom.

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