A former Iowa Supreme Court justice believes that the same-sex marriage case that the court will hear Tuesday may hinge on one of the first decisions the court will make, when they choose the standard of review to apply to the case.

In Varnum v. Brien, six same-sex couples from Polk County are arguing that the state’s 1998 ban on gay marriages is unconstitutional. The state is defending the Defense of Marriage Act, which passed by wide margins in the state Legislature a decade ago.

The Iowa Supreme Court building in Des Moines.

The Iowa Supreme Court building in Des Moines.

“Once you decide the standard, the outcome may be controlled by that standard,” Mark McCormick, a Des Moines attorney who served on the Iowa Supreme Court from 1972 to 1986, said in a telephone interview with the Iowa Independent.

McCormick says the seven justices on the court face a fundamental choice: to decide if a “rational basis” or a “strict scrutiny” test should be applied to the case.

“The Court has decided quite a number of equal protection clause cases,” said McCormick. “A good deal of what the court does in [those] cases depends on what the test or standard is.”

When a case involves a routine economic issue, the court typically applies a rational basis test, he said. That means the judges seek to decide if the Legislature could have had any reasonable basis for making the classification that it did. If the judges conclude that the state had a rational reason for the law, the court won’t interfere with it, but will defer to the Legislature.

“Strict scrutiny” is a more demanding standard, he said.

“Where you are dealing with an issue like race or citizenship or something that is considered a fundamental constitutional right, the burden is on the government to prove a compelling need for the classification,” he explained.

In the district court decision in the case last August, the judge applied this standard and ruled in the favor of the gay couples.

“You can see these [two tests] are just at opposite extremes,” he said. “A good deal of a favorable outcome will depend on what test the court thinks should be applied. If this were a race case, there wouldn’t be any question about [which standard would be used]. If this were an ordinary case involving a right based on gender, the court would likely apply the strict scrutiny standard.”

Although much has been made in the lead-up to Tuesday’s oral arguments about the court hearing this case de novo, or without consideration of any lower court’s decision, McCormick said this is not a significant distinction.

“De novo doesn’t mean anything because whenever the constitution is challenged, the review by the Supreme Court is de novo,” he said. “And where a decision like this is made under the Iowa constitution, it doesn’t matter what federal courts might do, because the Iowa court has full control over its constitution and its interpretation of the Iowa equal protection clause.”

This is not to say, however, that the Iowa Supreme Court justices will ignore other state decisions as they make their ruling, he said.

“I think our court will look at the decisions that have been made in other states,” he went on. “The three most recent states to decide the issue, as I recall, have stricken state laws of a comparable nature. So, our court will be looking at the reasoning in those cases, and will probably find something persuasive about some of that reasoning.”

The three most recent state courts to rule on gay marriage were Massachusetts, California and Connecticut. The justices in all three states ruled that laws banning same-sex marriages were unconstitutional.

McCormick said he believed the quickest ruling he could remember from the Iowa Supreme Court came in roughly three weeks. Such a quick ruling is not expected to happen in this controversial case. McCormick said it would likely be months before the court formally weighs in on the issue.

Regardless of how long it takes for the ruling to be made, McCormick said Iowans can rest assured that the Court’s decision will be based in the law.

“I think the people on the court have been involved with enough issues which have had a lot of public attention to know that [public sentiment] can’t dictate or influence how they decide the case,” he said. “In my experience and observation, the court does apply the rule of law in these cases and the judges do put personal feelings to the side. The justices on the court would not ever be influenced by the personal opinion of another judge that they didn’t think was supported by the law. So, I think they will attempt to get right to the heart or merits of the matter.”