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03 Apr 2009 06:59 pm

Logic Or Fear?

Mark Kende reads through the Iowa opinion:

I've read all the other state supreme court opinions on gay marriage and I think this one stands up pretty well in terms of legal quality, regardless of what side one is on.  The author, Justice Mark Cady, is also not considered a left wing judge by any means which may further enhance the ruling's influence especially since it comes from a "heartland" state.

It's been a crazy day for me and I've been unable to sit down and read the opinion in full and in quiet. Will do this weekend. From the abstracts and summaries, it's clear that the actual arguments for limiting marriage to 97 percent of the population, while denying it to 3 percent, no longer hold in reasonable minds. Once you have accepted sexual orientation as a fixed and profound part of someone's identity, and once civil marriage is not restricted to those with children, it is simply very, very hard to find a secular argument for denying critical civil rights under constitutions that guarantee formal equality. You can reach for Biblical injunctions, or try the logic of unintended consequences, or in the end invoke pure prejudice in a Burkean fashion. But even Burke understood that societies change and grow, social beliefs shift, our understanding of humanity deepens, and an intelligent conservatism adjusts.

That's why, I think, so many conservative jurists have been forced by logic to adopt this position - from the early decisions in Hawaii and Alaska, through the numerous Republican-appointed judges who find it hard to reflect pure prejudice in rational legal judgment. Yes, fear can overwhelm logic and justice. But remove fear - and the case is overwhelming.

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