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. Solid, clear, step by step. As I said to Nan Hunter in an e-mail yesterday 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
I appreciate your summary, yet I can’t help but detect a pejorative and belittling tone in your use of the word “midwestern,” and in your sarcastically incredulous request that we “look at the plaintiffs.” Yes, they’re white, middle-aged, and many of them may even be heavy-set. But if you’ve been there, you’ll know — that’s what Iowa’s like.
I know your queer theory critique might fall along the lines of — “why do we have to be like other Iowans to demand respect.” That’s a fair point. But consider the Supreme Court’s audience, its context, and its mission, before you eviscerate them for not being Judith Butler.
The Iowa Supreme Court — bless its heart — has gone out of its way to make this decision a teaching moment. This decision wasn’t written at a ninth-grade level because that’s midwesternese (this Court is capable of writing highly complex opinions, and is at the vanguard of equal protection theory). It was written that way because the Court is trying to do everything it can to speak to the people of Iowa on this issue.
This Court knows what happened in “the Gomorroah of California” and doesn’t want its ruling overturned — and so it ruled unanimously (perhaps even sacrificing single-tier equal protection and/or heightened scrutiny for it). It wrote plainly and explained itself painstakingly, in a way that everyone might understand. It relegated legal complexities to long footnotes. It added completely unnecessary — but nevertheless eloquent, useful, and persuasive — sections about the proper roles of the judicial branch and the separation of church and state (sections I doubt you’d tolerate from a 1L memo). At the beginning of the oral argument, Chief Justice Ternus spoke at length about the appellate process, and the Court’s website continues that education on the case page that the Court set up for this case.
In short, this Court is doing everything it can to ensure that this decision remains the law of Iowa, by speaking as plainly as it can — and in the only way it can — to the people of Iowa. No, there weren’t grand statements about dignity, nor about how valuable or beautiful we queers are, just as we are.
The truth is, those statements don’t persuade, and that’s what good lawyers and judges, this Court included, try to do: argue and persuade. While it’s unfortunate that our best queer theory-informed arguments aren’t always most effecting at swaying hearts and minds, that’s sometimes the real fact: we have to compromise if we want to see change in our time.
(And the dirty little secret is this: speaking to them in our non-theory-best more often than not moves the middle to appreciate us for who we are, anyway.)
And I say bravo to them, and thanks for the help.
one correction: “heightened scrutiny” above should read “strict scrutiny”
MGH: You’re absolutely right – and that’s why I applauded the decision. I’m tough on these cases because these cases are tough. We can’t afford to lose them, yet “winning” is often a complicated thing. What do we win? For whom? At what cost? The straightforward, not over-reaching, humility of the Varnum case makes it in many respects the best one yet from my perspective. Not only did they write an opinion that is less likely to generate a backlash, as you point out thoughtfully, but they wrote an opinion that is most compatible with the aims and analysis of queers, many of whom have no aspirations to marry. You don’t need fancy words, post-modern deconstruction and inaccessibility to have an analysis that queers will take to. Rather, what queer people and queer theorists will like about the Varnum opinion is it’s refusal to embrace a familiar kind of identity politics, and an absence of the mythologizing of marriage itself that was characteristic of the California and Connecticut courts, along with Justice Kaye in her dissent in the NY case, whereby they set up a teleology of relationships that all culminate in the exalted legal form of marriage.
The judgment you read in my tone in this post derives more from my disease with the strategy to elevate marriage rights over all others as THE lgbt issues, than from a sense of distaste for the Iowa Court’s reasoning. This post on Varnum is, if you look back, my most laudatory commentary on a same-sex marriage case so far.
Being an Iowan, I find your editorializing offensive. While you may insist that your tone is based on your problems with the “marriage equality” fight, your clever inclusion of “mid-western” colloquialisms tell a different story. With the, “You bet ‘cha” and “…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,” you are not only belittling the Court’s decision but also furthering the divide between academics and “real people,” who may not have access to years of higher education, no matter where they’re from. Plus, you just come across as a pompous jerk.
Your analysis of Iowa as a state and as a state of being (apparently), does not appear to have roots in academia, though you clearly want to debate the actual issue and Iowa Court’s decision through an academic lens. Utilizing cliched and antiquated stereotypes of guffawing, down-home mid-western ideals and speech patterns (?) is distasteful at best and–dare I say it–prejudicial at worst. It’s akin to the caricature of the lisping, “effeminate” gay man: completely unnecessary in what is trying to be an academic analysis.
Perhaps I have missed your point here, but I can’t comprehend how this glaring value judgment relates to your overall issues with the gay marriage agenda. After all…I only have a B.A. from the “awww, shucks” University of Iowa.
Let me follow on the previous posters by asking you to elaborate on what you mean when you say, “After all, look at the plaintiffs.” I see some very happy people. Is there additional information that the picture conveys that you find useful or interesting?