Posted Apr 06, 2009 11:48 am CDT
A decision by the Iowa Supreme Court last week striking down the state’s ban on same-sex marriages will be more difficult to overturn by voters than a similar court decision in California.
The Iowa decision held gays’ right to marry was protected by the equal protection clause of the state constitution. Voters who want to amend the state document to overturn the decision would face several hurdles, New York University law professor Kenji Yoshino writes for the New York Times’ Room for Debate blog.
The constitutional change would have to be approved by both houses of the legislature before a general election and again after the general election, according to the article. Then voters would have to approve the amendment in a referendum.
In California, a state constitutional amendment needs only a bare majority of voters to win approval. In November, 52 percent of California voters passed a referendum designed to overturn a May state supreme court decision holding that gays have a state constitutional right to marry. The California Supreme Court is expected to uphold the voter initiative.
“These procedural hurdles mean that opponents of same-sex marriage [in Iowa] cannot respond as immediately as they did in California, where a state constitutional amendment withdrew the right to marry granted by the California Supreme Court within months,” Yoshino writes. “It is hard to imagine that an amendment could supersede today’s decision before 2012.”
Yoshino points out another difference between the two states: The Iowa Supreme Court decision subjects legislation burdening gays to an intermediate level of scrutiny, while the California Supreme Court decision subjected such legislation to strict scrutiny.
State supreme courts in Massachusetts and Connecticut have also found a constitutional right to gay marriage. The Connecticut high court also used an intermediate scrutiny standard, while the supreme court in Massachusetts used only a minimum rational basis review.