Gay Marriage in Iowa

Via Reason's Hit & Run, here's an article about the recent gay marriage ruling in Iowa from Jacob Sullum. He and I both favor gay marriage but aren't happy with the judicial approach to getting there. He's put this better than I have:

I like the policy outcome here, and I sympathize with the argument that the principle of equal protection should compel the government to treat gay and straight couples in an evenhanded manner. But this decision, like the California Supreme Court's similar ruling last year, seems to be another example of result-oriented jurisprudence that ultimately undermines a constitution's ability to constrain government action and protect individual liberty. If you read the court's analysis as it goes through the arguments for a gay marriage ban and (correctly, in my view) finds each of them wanting, it's hard to see how this process differs from what legislators do.

It's clear that the Iowa constitution's equal protection clause, at the time it was adopted, was not understood to prohibit a law limiting marriage to a man and a woman (assuming the issue would even have been intelligible). So the basis for saying that such a law is inconsistent with that clause today has to be an evolving understanding of what equal protection entails, especially regarding what it means to be similarly situated. But barring a constitutional amendment, judges can implement this new understanding only by reinterpreting the clause to mean something it did not mean at the time it was written. That sort of license can lead to all sorts of mischief, as the evolving understanding of the U.S. Constitution's Commerce Clause (to pick one especially pernicious example) illustrates.

That's a problem and one that I wish more gay marriage supporters would address. We shouldn't want courts looking for ways to 'get to the right place'. It can only lead to major distortions in the system. Some of them will work in your direction but over time you're going to get screwed as well.