Friday the Iowa Supreme Court held unanimously that the state’s definition of marriage – a union of a man and a woman – violated the Iowa Constitution’s Equal Protection Clause. This is the first court to do so unanimously, and the first mid-western court to do so. No more can marriage traditionalists dismiss the idea of marriage equality as an elitist liberalism emanating from the People’s Republic of Massachusetts, the liberal sodom of Connecticut, or the Gomorrah of California. No, we’ve got Iowa now – a rectangular state smack dab in the middle of the country, with the state motto: “Our liberties we prize, and our rights we will maintain.” You bet ‘cha.
I’ve got many thoughts about the ruling in Varnum v. Brien – here are some initial takes. My critique of Justice Cady’s reasoning from the perspective of queer theory will follow later.
There’s no missing the midwestern tone to this decision. It reads very differently from the decisions granting marriage rights in Connecticut and California. Coming from the mid-west myself, I recognized its ethos as characteristically workman-like – what I call “lunch-box lawyering” – no fancy language, it’s straightforward, accessible to the regular person, and its rightness speaks for itself. Justice Mark Cady, who wrote the opinion for the entire court, stays clear of soaring language about civil rights, about the dignity of gay men and lesbians, or about the sanctity of marriage as a fundamental building block of society. The opinion reads like a brief that one of my best students might have written in a moot court competition. Solid, clear, step by step. As I said to Nan Hunter in an e-mail about the opinion: “Every i is dotted, every t is crossed. In the end they conclude that ‘gay people are Iowans too – and heck, that’s good enough for us.’ Not the stuff of queer theory, but then it’s the Iowa Supreme Court, gosh dern it.” After all, look at the plaintiffs:
These are regular folks who do the dishes, go to church, work to pay their mortgages, love their kids – just like straight Iowans. Indeed, that is what the Iowa Supreme court found, over and over, “Like other Iowans, they (the gay and lesbian plaintiffs) prize their liberties and live within the borders of this state with the expectation that their rights will be maintained and protected – a belief embraced by our state motto.” Later the court goes to great pains to point out that the gay plaintiffs are in committed and loving relationships, many raising families, wanting the state to recognize the importance of their relationships and desiring the stability that recognition entails just like regular heterosexual Iowans.
The court also makes every effort to situate the marriage case within the context of local Iowan values. Whether it was a refusal to recognize the legitimacy of slavery in 1839, a recognition that racial segregation violated the Iowa Constitution in 1873 long before the U.S. Supreme Court did in 1954, or being the first state to grant women the right to practice law in 1869, Iowans have had their own strong sense of justice and fairness, and as the court noted, “in each of these instances, our state approached a fork in the road toward fulfillment of our constitution’s ideals and reaffirmed the ‘absolute equality of all’ persons before the law as ‘the very foundation principle of our government.'”
What they’re saying here is this: don’t think we’re doing this because of some carpet-bagging gay rights lawyers from Lambda Legal in New York – we’re just taking the next step in a road that is distinctly local and Iowan. Iowans have never stood for unfairness – even when others did – and we won’t now. This isn’t a culture war – it’s what good people should do.
This is Iowa – the state with the not-too-flashy Eastern Goldfinch as its state bird, and the dependable Oak as its state tree. No camelia (Alabama – too smelly), poppy (California – of course), or eastern white pine tassel and cone (Maine – sounds gay to me) for Iowa’s state flower. They’re happy with the wild prairie rose (pictured left). And if god-loving gay people want to get married, then it seems only fair that we should let ‘em.
In this may lie the decision’s greatest value – bringing the issue to the middle part of the country in terms that are distinctly mid-western.
– Katherine Franke, cross posted from Gender and Sexuality Law Blog