Topfreedom in Iowa?

The stunning news yesterday that the Iowa Supreme Court ruled that the state's ban on same-sex marriage was unconstitutional has taken most people by surprise, and further defined the debate as being about civil rights instead of morality. There is no appealing the decision, but opponents will likely seek an amendment to the constitution, requiring a public vote, guaranteeing that gay marriage in Iowa will be in effect at least until 2012.

“We are firmly convinced that the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective,” the court said in an opinion written by Justice Mark Cady. “The legislature has excluded a historically disfavored class of persons from a supremely important civil institution without a constitutionally sufficient justification.” The ruling appeared to dismiss the option of civil unions as a marriage alternative, finding that “a new distinction based on sexual orientation would be equally suspect and difficult to square with the fundamental principles of equal protection embodied in our constitution.”

Andrew Sullivan writes:

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.

Logic and intelligence have prevailed over religious based prejudice. Here is more from the opinion, and be sure to read it carefully:

We begin with the County's argument that the goal of the same-sex marriage ban is to ensure children will be raised only in the optimal milieu. In pursuit of this objective, the statutory exclusion of gay and lesbian people is both under-inclusive and over-inclusive. The civil marriage statute is under-inclusive because it does not exclude from marriage other groups of parents--such as child abusers, sexual predators, parents neglecting to provide child support, and violent felons--that are undeniably less than optimal parents. Such under-inclusion tends to demonstrate that the sexual-orientation-based classification is grounded in prejudice or "overbroad generalizations about the different talents, capacities, or preferences" of gay and lesbian people, rather than having a substantial relationship to some important objective. See Virginia, 518 U.S. at 533, 116 S. Ct. at 2275, 135 L. Ed. 2d at 751 (rejecting use of overbroad generalizations to classify). If the marriage statute was truly focused on optimal parenting, many classifications of people would be excluded, not merely gay and lesbian people.

I asked Dr. Paul Rapoport of TERA if he thought this decision could have ramifications for topfreedom in Iowa. His reply: "The case law on topfreedom is quite different, hardly ever involving the Constitution's equality notions (14th amendment or other)."

Perhaps it's time to test the constitutionality of banning the exposure of women's breasts in public. While it is perfectly legal for a man to walk down the street exposing his nipples, no matter how large of small the breasts, a woman can be arrested for doing the same. One can make precisely the same arguments regarding women's topfreedom as were made for gay marriage in Iowa, that merely singling out women as targets for prosecution in the matter of nipple exposure is under-inclusive because it does not exclude men who have large breasts, and is over-inclusive because it punishes all women no matter what size the breast. The only logical conclusion is that women do not have equal civil topfreedom rights simply because they are women, so the law is clearly based on prejudice.

I say this with the full understanding that even if the law was changed tomorrow, most women are not going to throw off their tops and walk around downtown. The point is not to encourage people to walk around half-naked; the point is to stop making it a crime if they do. People who champion the cause, such as Linda Meyer and Liz Book, have put their own personal and legal safety on the line time and time again to change the law so that women who choose to be topfree are not branded as criminals or sex offenders.

The language of the Iowa court's decision gives hope that such breathtaking clarity and logic will begin to spread around the country, bringing us out of our long languishing unwillingness to abide by our basic tenet that all men and women are entitled to equal protection under the law, and that it's time to bury our prejudices when it comes to sex and sexuality.