For years the gay marriage battle has been waged on the east and west coasts, in states like New York and Massachusetts and California. This was not a bad strategy. These states had a large gay population and favorable court rulings would not only help the greatest number of people but influence other states who might follow their lead.

But the gay marriage strategy failed in New York, where the Court of Appeals uphleld the restrictions against same-sex marriage on the theory that the government had a legitimate interest in promoting heterosexual unions, deemed to be more stable than same-sex unions. This was a horrible court ruling, with legal reasoning that a first-year law student would be ashamed of. A few years ago, when the New York Court of Appeals ruled against gay marriage, here is how it got around the question of whether the government could treat gay and straight couples equally:

The Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not. Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true. The Legislature could also find that such relationships are all too often casual or temporary. It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It thus could choose to offer an inducement -- in the form of marriage and its attendant benefits -- to opposite-sex couples who make a solemn, long-term commitment to each other.

The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse. The Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite-sex relationships will help children more. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.

There is a second reason: The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father. Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like. It is obvious that there are exceptions to this general rule -- some children who never know their fathers, or their mothers, do far better than some who grow up with parents of both sexes -- but the Legislature could find that the general rule will usually hold.

I wrote then, and I still believe now, that this was horrible legal reasoning. As the Court of Appeals saw it, reckless sex between heterosexual couples can produce children. The State wants to prevent children from growing up without a mom and pop, so we induce the lovers to get married to save the children. The State can deny the same marriage right to gays and lesbians because although they can adopt children, they cannot naturally reproduce. The State Legislature can thus distinguish between same-sex marriage and heterosexual marriage. And, the Court ruled, the Legislature can rationally decide that children are better off with a mother and father rather than a father and father. This is what counts for legal reasoning in New York.

I receive a lot of reading material from the New York Bar Association and court system extolling New York's commitment to "our cherished values" under the Constitution. It sure sounds nice, but as I drop this stuff into the trash can, I think about the same-sex marriage decision in New York and how the 20-something Green Party mayor of my village (New Paltz) was the first small-town public official to sanction same-sex marriage, a gutsy move that got him arrested for breaking the law.

Iowa is not New York. So when the highest court in Iowa took up the issue of same-sex marriage, it probably looked at the New York decision and dropped it in the trash can. Iowa can think for itself.

Here's the general framework for courts to apply in deciding whether to strike down marriage restrictions. Under the Constitution, there are certain "fundamental" rights, like the right to travel, the right to privacy, the right to raise your children as you see fit and the right to marry. The language we usually see in these court rulings is that a fundamental right is something that is "deeply rooted in our tradition." In 1967, the Supreme Court held that it was illegal for the State of Virginia to prohibit interrracial marriage. A few years later, the Court said flat out that "the right to marry is of fundamental importance for all individuals." For this reason, even inmates can get married. Even serial killers can get married while in prison.

If a right is "fundamental" under the Constitution, it cannot be abridged or restricted without a "compelling" reason. In street language, the government needs a damned good reason to restrict a fundamental right. Hatred of an entire class of people is not good enough. "We always did it this way" is not good enough. "Just because" is not good enough. Prejudice is not good enough. Public opinion is not good enough. The rationale for this is that some rights are so fundamental that it does not matter what the majority thinks. Constitutional rights cannot be put up for a majority vote.

When the same-sex marriage controversy first wound up in the courts, I thought that an honest court would recognize that same-sex couples have a constitutional right to get married. After all, what compelling reason could justify the exclusion? The best parallel was the Supreme Court's ruling in 1967, Loving v. Virginia, which said that the government cannot restrict interracial marriages despite any arguments that it was always government policy to enforce these restrictions. As we know from the New York ruling, courts will find a way to sidestep the obvious.

Not Iowa. This is how the Iowa Supreme Court did it: It noted how the U.S. Supreme Court, in determining whether to grant certain social and racial groups heightened protections under the Equal Protection Clause, considers the following factors: "The Supreme Court has considered: (1) the history of invidious discrimination against the class burdened by the legislation; (2) whether the characteristics that distinguish the class indicate a typical class member’s ability to contribute to society; (3) whether the distinguishing characteristic is “immutable” or beyond the class members’ control; and (4) the political power of the subject class." Long ago, courts have applied this test in finding that discrimination on the basis of gender, race, national origin and religion is illegal under the Constitution. The dividing line is homosexuality.

Iowa's judges have found that gays and lesbians get heightened protection under the Iowa Constitution because gays and lesbians have historically been discriminated against. The Iowa court also held that they have minimal political clout and that the same-sex lifestyle is an immutable, or natural predisposition. Equally interesting, the court ruled that sexual orientation forms a part of the gay and lesbian identity. The Court also finds that gays and lesbians can contribute to society regardless of their sexual preference. Here is some good language from the judges:

We are convinced gay and lesbian people are not so politically powerful as to overcome the unfair and severe prejudice that history suggests produces discrimination based on sexual orientation. Gays and lesbians certainly possess no more political power than women enjoyed four decades ago when the Supreme Court began subjecting gender-based legislation to closer scrutiny. Additionally, gay and lesbian people are, as a class, currently no more powerful than women or members of some racial minorities.

In other words, the same reasoning that granted equal protection against racial and gender discrimination now applies to laws against same-sex marriage. In order for the State of Iowa to defend the restriction, it has to provide a good reason to overcome the presumption that laws against same-sex marriage violate the state Constitution. The state cannot provide those reasons, the Iowa Supreme Court says. It is not enough for the state to argue that it wants to preserve "traditional marriage," because that argument only advances discrimination for its own sake. While the state argues that male-female marriage is best for children, the Iowa court disagrees; not only do many opposite sex marriages produce no children, but there is nothing to prohibit gays and lesbians from raising children. In essence, the court shoots down all the justifications in support of the same-sex marriage ban.

You don't need to be a legal scholar to understand what the Iowa court did. The prohibitions against same-sex marriage are borne of prejudice against gays and lesbians along with religious objections and the sense that "we've never done it before." Same-sex couples can be as commited as opposite-sex couples, and I couldn't care less what religious objections someone wants to raise in opposition to these marriages. The framework that the courts have set up to determine that racial and gender discrimination violate the Constitution applies equally to the prohibition against same-sex marriage, especially when we remember that the courts have held out the right to marry as among the fundamental rights which cannot be abridged without an airtight reason.