Friday, March 18, 2011

Are pizza lovers more likely to be against gay marriage?

As I discussed in November, the relationship between the Iowa Supreme Court and the citizens of Iowa has become more politicized. Prior to 2010, no Iowa judge had ever lost a retention election. Three Iowa Supreme Court justices lost their retention election in 2010. Bob Vander Plaats, a failed Iowa gubernatorial candidate and gay marriage opponent, helped coordinate the efforts of various special interest groups to bring about the loses.

Now Mr. Vander Plaats is calling upon the four Iowa Supreme Court justices who were not up for retention election to resign. As the Quad Cities' Times reports, Mr. Vander Plaats spooke to 30 people at Wise Guys Pizza as part of his effort to launch a grassroots effort to get rid of the four justices. While Mr. Vander Plaats believes the justices should be impeached, he also thinks that Iowans "should give the remaining four justices the opportunity to do the right thing." If the justices fail to do the right thing, they should be impeached because the Iowa Supreme Court unanimous ruling allowing gay marriage exceeded constitutional limits in a way that amounts to malfeasance warranting impeachment. I find the use of the phrase "do the right thing" strange given that I assume that the justices were trying to do the right thing when they unwittingly provoked the ire of Mr. Vander Plaats.

Mr. Vander Plaats made similar statements on March 14 at a Godfather's Pizza in Cedar Rapids Iowa. There Mr. Vander Plaats said the fact that Iowa allows gay marriage could lead to the legalization of polygamy or incest. Mr. Vander Plaats's argument is similar to the one made by Justice Scalia in Lawrence v. Texas. As I am sure you recall, the Lawrence case is the one where the United States Supreme Court struck down a Texas law against sodomy as unconstitutional. Justice Scalia's dissent, like Mr. Vander Plaat's recent speeches, worried that laws against "bigamy, same-sex marriage, adult incest, prostitution, masturbation, fornication, bestiality, and obscenity" were no longer sustainable.

Mr. Vander Plaats's recent public appearances raise a couple of questions. First is there some link between opponents of gay marriage and pizza (or mafia-themed pizza places)? I worked at a pizza place for several years during and after college and did not notice a connection. Perhaps it is like law school and Mr. Vander Plaats figures that by offering people free pizza he will get them to show up and listen to his arguments against gay marriage.

Second, is there any evidence to support slippery slope argument advanced by Mr. Vander Plaats? At first blush, the answer is no. None of the of the states that have legalized gay marriage (or civil unions) have also legalized incest or polygamy. Moreover, it seems unlikely that any state is going to do so. As University of Minnesota Law School professor Dale Carpenter has noted, polygamous marriage has been tried and rejected by many different cultures over human history. Gay marriage has not. Thus, the comparison between the two is somewhat specious. Moreover, polygamous marriage presents legal problems that do not exist if gay marriage is allowed, e.g., if the husband dies whiteout a will, which wife gets what.

However, it is true that the Lawrence decision has been used to strike down other sex crime laws. For example, in Martin v. Ziherl, the Virgina Supreme Court struck down Virgina's law against fornication was struck down solely on the basis of Lawrence. Also, in Reliable Consultants, Inc., v. Earle, 517 F.3d 738 (2008), the Fifth Circuit struck down a Texas law banning the sale of any devise, to quote the law in question "designed or marketed as useful primarily for the stimulation of human genital organs." So perhaps Mr. Vander Plaats's concern over the expansion of the gay marriage decision is not entirely misplaced.

On the other hand, the Lawrence decision has not prompted Courts to strike down, as Justice Scalia speculated, laws prohibiting incest, prostitution, or obscenity. See e.g., Muth v. Frank, 412 F.3d 808 (7th Cir. 2005)(upholding Wisconsin law prohibiting incest from a challenge based on Lawrence, State v. Lowe, 112 Ohio St.3d 507 (Ohio Ct. App. 2006) (upholding Ohio law prohibiting incest, State v. Romano, 114 Hawai'i 1 (2007) (holding laws prohibiting prostitution from a Lawrence challenge, U.S. v. Stagliano, 693 F. Supp.2d 25 (D.D.C. 2010) (finding Lawrence does not render laws against obtaining or distributing obscene material unconstitutional).

All of this is a long way of saying that while Mr. Vander Plaats' arguments may or may not be misplaced, Iowa's retention elections in 2012 and 2014 are apparently going to be as contentious as the one in 2010. Do we think that is a good thing?

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