Equal Before the Law: How Iowa Led Americans to Marriage Equality

by Tom Witosky, Marc Hansen, Michael Gartner (Foreword by)

Overview

“We’ve been together in sickness and in health, through the death of his mother, through the adoption of our children, through four long years of this legal battle,” Jason Morgan told reporters of himself and his partner, Chuck Swaggerty. “And if being together through all of that isn’t love and commitment or isn’t family or isn’t marriage, then I don’t know what is.” Just minutes earlier on that day, April 3, 2009, the justices of the Iowa Supreme Court had agreed.

The court’s decision in Varnum v. Brien made Iowa only the third state in the nation to permit same-sex couples to wed—moderate, midwestern Iowa, years before such left-leaning coastal states as California and New York. And unlike the earlier decisions in Massachusetts and Connecticut, Varnum v. Brien was unanimous and unequivocal. It catalyzed the unprecedented and rapid shift in law and public opinion that continues today.

Equal Before the Law tells the stories behind this critical battle in the fight for marriage equality and traces the decision’s impact. The struggle began in 1998 with the easy passage of Iowa’s Defense of Marriage Act and took a turn, surprising to many, in 2005, when six ordinary Iowa couples signed on to Lambda Legal’s suit against the law. Their triumph in 2009 sparked a conservative backlash against the supreme court justices, three of whom faced tough retention elections that fall.
Longtime, award-winning reporters Tom Witosky and Marc Hansen talked with and researched dozens of key figures, including opponent Bob Vander Plaats, proponents Janelle Rettig and Sharon Malheiro, attorneys Roger Kuhle, Dennis Johnson, and Camilla Taylor, and politicians Matt McCoy, Mary Lundby, and Tom Vilsack, who had to weigh their careers against their convictions. Justice Mark Cady, who wrote the decision, explains why the court had to rule in favor of the plaintiffs. At the center of the story are the six couples who sacrificed their privacy to demand public respect for their families.

Through these voices, Witosky and Hansen show that no one should have been surprised by the 2009 decision. Iowans have a long history of leadership on civil rights. Just a year after Iowa became a state, its citizens adopted as their motto the phrase, “Our liberties we prize and our rights we will maintain.” And they still do today.

Product Details

ISBN-13:	9781609383503
Publisher:	University of Iowa Press
Publication date:	06/01/2015
Series:	Iowa and the Midwest Experience
Sold by:	Barnes & Noble
Format:	eBook
Pages:	234
File size:	9 MB

About the Author

For thirty-three years, Tom Witosky covered Iowa politics, law, business, and sports for the Des Moines Register, reporting many major stories and gaining a reputation for innovative investigative journalism. One of the first investigative sports reporters in the country, he made sports news a regular front-page feature both at home and nationally. Witosky and his wife, Diane, are the parents of two grown children and grandparents of three children. They live in Des Moines, Iowa.
 
Marc Hansen spent over thirty years writing sports, metro, and feature-page columns for the Des Moines Register, often posting the paper’s highest readership numbers and winning numerous awards. Hansen and his wife, Jody, have three adult children. All have moved out of the family home near Des Moines, Iowa, while refusing to take the dog and cat.

Read an Excerpt

Equal Before the Law

How Iowa Led Americans to Marriage Equality

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By Tom Witosky, Marc Hansen

University of Iowa Press

Copyright © 2015 University of Iowa Press
All rights reserved.
ISBN: 978-1-60938-350-3

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CHAPTER 1

Injured Child

As she ate breakfast before kindergarten, five-year-old McKinley BarbouRoske learned a terrible truth about her parents.

The conversation was weekday-morning matter-of-fact. McKinley, by all appearances, was off in her own little world, paying scant attention to the grown-ups at the table. Jen BarbouRoske was telling her longtime partner, Dawn BarbouRoske, about a conversation the night before with another nurse in the University of Iowa Hospitals neonatal unit. The coworker was stunned to learn that Jen and Dawn weren't married and that same-sex marriage was prohibited in Iowa. As McKinley's two moms quickly discovered, McKinley was paying close attention.

"You're not married?" she cried out, huge tears rolling down her cheeks. The very notion was absurd. How could they not be married? Jen was "Mommy" and Dawn was "Mema." They were her parents. They'd always been her parents.

But the answer was no. Not yet. Not in Iowa. The year was 2003. George W. Bush, running for a second term as president, had felt compelled to go on record. Marriage, he announced, was between one man and one woman, and it was time "to codify that one way or the other." It was time mainly because the Massachusetts Supreme Court was about to become the first state in the country to make civil marriage legal for same-sex couples, and the backlash was soon to be felt across the nation. Writing for the majority in a 4–3 ruling, Chief Justice Margaret H. Marshall would say, "The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society. For those who choose to marry, and for their children, marriage provides an abundance of legal, financial, and social benefits. In return, it imposes weighty legal, financial, and social obligations."

But the BarbouRoskes weren't living in liberal-leaning Massachusetts or Connecticut, the second state (in 2008) to sanction same-sex civil marriage. They were living in not-so-liberal Iowa — a rural midwestern state with an influential core of social and religious conservatives who specialize in steering the Republican Party to the right during its first-in-the-nation presidential caucuses.

Despite Iowa's white-bread image, the reputation doesn't always match the reality. Although the 2014 election screamed otherwise, Iowa is not a conservative stronghold. It isn't a perennial red state. Much of the time, it is a purple-clad political cross-dresser. From 1984 heading into 2014, the Hawkeye state had been represented in the United States Senate by one Republican and one Democrat. True, Republican Terry Branstad is now setting longevity records as governor. Since 1969, however, two Republicans and two Democrats have held the job. What's more, in five of the last six presidential elections, starting in 1988, Iowa voted Democratic. Before that, the voters largely favored Republican presidential candidates. But lately, what Iowa seems to do best is help elect the winner.

For a long time, Hawaii and Massachusetts were seen as the true marriage-equality pioneers: Hawaii for its high-court ruling in 1993 recognizing civil marriage for a same-sex couple (only to have the court decision overturned by a constitutional amendment five years later) and Massachusetts for being the first to make it stick. The politicians in Iowa and almost everywhere else saw what the court in Hawaii had done and dug in their heels. How can this happen? How can a small, relatively obscure deliberative body far from the mainland be allowed to redefine one of life's most sacred institutions?

In February of 1996, the week before Iowa's presidential caucuses, Republicans in the Iowa House responded to Hawaii by introducing their own Defense of Marriage Act (DOMA). To same-sex Iowa couples considering a wedding and honeymoon in Hawaii, the message was clear: Hold off on the celebration. When the law is passed, your marriage will not be legally recognized back home.

In 2003, around the time McKinley BarbouRoske learned her parents weren't married, the prospects for most same-sex couples in the United States still seemed bleak. An Associated Press poll found that most Americans favored laws banning gay marriage and that they would punish any presidential candidates supporting marital equality or even civil unions. But change was on the way. The decision that was to decisively turn the tide in favor of marriage equality would come from flyover country, and McKinley BarbouRoske's family would play a key role.

The Iowa Supreme Court decision in Varnum v. Brien firmly and deeply rooted the chief principles enumerated by all subsequent decisions overturning laws banning the marriage of a same-sex couple:

• Gays and lesbians could not be deprived of equal protection under the law because of their sexual orientation.

• Prohibiting them from civil marriage was not connected to any important government objective.

• The ruling wasn't about anyone's religious views as much as it was about preventing government from endorsing a religious belief and about protecting the freedom of religious organizations to define marriage as they choose.

As Justice Mark S. Cady wrote in the opinion, "Civil marriage must be judged under our constitutional standards of equal protection and not under religious doctrines or the religious views of individuals." But, he added,

this approach does not disrespect or denigrate the religious views of many Iowans who may strongly believe in marriage as a dual-gender union, but considers, as we must, only the constitutional rights of all people, as expressed by the promise of equal protection for all. We are not permitted to do less and would damage our constitution immeasurably by trying to do more.

Cady didn't say it in so many words, but the implication gradually became clear to the rest of the country. These weren't wild counterculture claims coming from the so-called coastal elite. The court, in fact, was espousing core American ideals.

By the fifth anniversary of the decision, an estimated six thousand same-sex couples had been married in Iowa. In rapid succession, sixteen states followed Iowa's lead — as did the U.S. Supreme Court. In 2013, the high court gutted a major section of the federal Defense of Marriage Act and let stand a lower court decision declaring California's Proposition 8 unconstitutional.

This book tells the story of the decades-long legal struggle for marriage equality in Iowa and the now-snowballing acceptance. Clearly, Iowa's decision wasn't a first; it followed similar court outcomes in Massachusetts, California, and Connecticut. But unlike those decisions, Iowa's court ruled unanimously, setting an unmistakable tone of necessity and inevitability reminiscent of the 1954 school desegregation decision, Brown v. Board of Education.

In the immediate aftermath of the Varnum decision, Kenji Yoshino, Chief Justice Earl Warren Professor of Constitutional Law at New York University School of Law, said,

This is a remarkable decision not only because it occurred in the Midwest, but also because it was 7–0.

The three prior courts to rule in favor of same-sex marriage were 4–3 decisions. ... It was a more aggressive opinion in that there was absolutely no toe-hold for naysayers to find in the opinion. And so this makes the opposition to same-sex marriage much more like opposition to interracial marriage.

In an article written for the New York Times, Yoshino even equated Cady's effort in Varnum with Warren's fifty-five years before:

Chief Justice Earl Warren strove mightily to get a unanimous opinion in Brown v. Board of Education so that the moral principle of desegregation would be accorded its full moral force. Given that he invokes Brown, one wonders how hard Justice Mark S. Cady, the author of the opinion today, struggled to find the words that would allow his court to speak — from the heart and heartland — with one voice.

Legal scholar Patricia Cain, a law professor at Santa Clara University, also predicted a substantial impact from the decision: "Iowa may be the last state to extend marriage equality by court decision, but it may serve as a major impetus for other states to follow legislatively." Why? Because the decision addressed the impact on religious groups. "This break in the silence about religion and its role in the same-sex marriage debate is a positive step forward," she said, inserting a useful dose of reason into an otherwise intemperate debate. By supporting marriage equality in middle America, the Iowa Supreme Court caught the attention of a nation that, before Varnum v. Brien, typically thought of "gay marriage" as an issue for only New York, California, Massachusetts, and other coastal states.

Back in Iowa, McKinley BarbouRoske was too young to understand the stakes. She wanted only what most of the other kids had. It would not be long before the United States Supreme Court shared her concerns. In the nation's slow-simmering same-sex marriage debate, much ink was spilled and energy expelled conjecturing that children were somehow imperiled by living in the homes of same-sex couples. Official acknowledgment of their mere existence would take a long time.

It would come ten years later in the Supreme Court of the United States as the justices delicately probed the constitutionality of California's ban on same-sex marriage. In the oral argument, Justice Anthony Kennedy noted evidence that some forty thousand children lived in California with same-sex parents. Those children, Kennedy added, "want their parents to have full recognition and full status." Denying children such recognition, he said, could result in "an immediate legal injury ... and that's the voice of these children." It was a flesh-and-blood moment in a case that hinged on technical questions. Who had the right to litigate the California ban in court? Exactly who was injured here? Addressing the lawyer seeking to uphold the ban, Kennedy said, "The voice of the children is important in this case, don't you think?"

It would appear so. That voice, judging by the numbers, rings out across the country. When Gary Gates, a demographer at the UCLA law school, looked into 2008 statistics for the New York Times, he found some 250,000 children under age eighteen being reared by 116,000 same-sex couples.

Five years earlier, McKinley's voice at the kitchen table was filled with pain. Something was wrong with her family; something was missing. Her parents tried to explain how the law wouldn't let them marry, but their words brought no solace.

"Does that mean you're splitting up?" McKinley asked.

"No, not at all," came the answer. "We're the same strong family we've been and always will be. We're married in our hearts."

The look on McKinley's face that morning reminded Dawn and Jen BarbouRoske what they already knew — what the majority of Americans would someday come to accept. Married in their hearts was not enough.

CHAPTER 2

Right and Wrong

As Matt McCoy entered the statehouse in March of 1998, he knew it would be a difficult day. Before leaving his desk on the senate floor the night before, McCoy, in his first term representing a blue-collar district on the south side of Des Moines, noted that House File 382 had been readied for debate. The bill was three pages long but would change chapter 592.2 of the Iowa Code in only one significant way. The new wording to be added to the statute read simply: "Only a marriage between a male and female is valid."

McCoy, a Democrat, sighed. He already had served two terms in the Iowa House before his senate election in 1996 and had concluded then that nothing could stop Republican lawmakers from restricting marriage in Iowa to a man and a woman. He heard the arguments for change again and again. They had begun in 1993 when the Hawaii Supreme Court sent tremors through the country. Three years earlier, three same-sex Hawaiian couples had challenged the state's ban on same-sex marriage and, shockingly, won the case. Dire predictions followed. Allow same-sex marriage in one state, and it would be legal everywhere under Article IV — the full faith and credit clause — of the U.S. Constitution. Conservative and evangelical groups with strong Republican ties were insistent. This must be stopped immediately.

What those opponents failed to acknowledge was that no clear answer existed regarding the clause's impact on recognition of marriage. Many legal scholars had concluded the constitutional clause governing how states dealt with conflicting laws had never been used to force one state to accept a marriage performed in another. For example, states forbidding interracial marriage weren't required to recognize interracial marriages from other states. That changed in 1967, but only after the U.S. Supreme Court ruled unconstitutional all state laws banning interracial marriage. While states could accept marriages from other states as a courtesy, nothing in the Constitution required it.

"For some years now, the press has fecklessly repeated the claim that the full faith and credit clause will require every state to recognize same-sex marriages," Andrew Koppelman wrote in his 2006 book, Same Sex, Different States: When Same-Sex Marriages Cross State Lines.

Similarly, Ralph Whitten, in a Creighton Law Review article published in 2005, pointed out just how wrong those claims were when they were made: "The subject of same-sex marriage has produced a seemingly endless set of preposterous ideas about why the full faith and credit clause requires states to give effect to marriages performed in other states." Other scholars, mostly conservative, insisted there should be no chance of having same-sex marriage recognized under any circumstance. If states or even the federal government wanted to prevent same-sex marriages from being recognized, they had the right to do so.

But by 1996, poll-watching Republicans noticed the public's discomfort with the Hawaii decision and began pushing the antimarriage agenda as hard as they could. That realization hit home in Iowa when antigay and religious groups, including the American Family Association, the Eagle Forum, and the Christian Coalition, staged a "National Marriage Protection Rally" just two days before the presidential caucuses. The rally featured an appearance by actor Charlton Heston, who introduced Texas senator Phil Graham as "the next president of the United States" but said nothing about same-sex marriage.

The rally, held in part to keep Hawaiian same-sex marriages from being recognized in other states, included several presidential candidates signing a "marriage protection resolution." Said candidate Alan Keyes, "If we accept the homosexual agenda, which seeks recognition for homosexual marriages, we will be destroying the integrity of the marriage-based family." Fellow presidential hopeful Pat Buchanan, a leader in the Republican Party's "culture war," declared same-sex marriage to be part of the "false God of gay rights," saying, "There is no equality between what has been sanctified by God and what is fundamentally wrong." Before the night was over, all the Republican candidates — eventual presidential nominee Bob Dole, former Tennessee governor Lamar Alexander, and Steve Forbes included — either signed the pledge or promised to sign it. Only Indiana senator Richard Lugar, who did not appear at the rally, declined.

Much of the party's effort stemmed from the Hawaii decision, but Republicans also were smarting over President Bill Clinton's 1993 executive order to implement the so-called Don't Ask, Don't Tell military policy. Then there were the HIV and AIDS epidemics. In 1992, the problem had made headlines when professional basketball star Earvin "Magic" Johnson acknowledged he had become infected with the HIV virus, and U.S. tennis champion Arthur Ashe said he had contracted AIDS from a blood transfusion. Ashe would die the next year.

Statistics from the Centers for Disease Control show the AIDS epidemic peaking in the mid-1990s. From 1993 to 1995, 257,262 cases were reported, up from 202,520 between 1988 and 1992 and from 50,280 the previous six years. While incidents of AIDS increased to 264,405 between 1996 and 2000, deaths plummeted to 59,807, compared to 159,048 deaths from 1993 to 1995.

(Continues...)

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Excerpted from Equal Before the Law by Tom Witosky, Marc Hansen. Copyright © 2015 University of Iowa Press. Excerpted by permission of University of Iowa Press.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents

Contents Acknowledgments Foreword by Michael Gartner One. Injured Child Two. Right and Wrong Three. Near the Truth Four. Two Women Five. Legal Trifecta Six. Old Farts and Rosa Parks Seven. High Risk, High Reward Eight. All Justices Concur Nine. Decision Day... and Beyond Ten. We the People Eleven. Buyer’s Remorse Twelve. Enough Is Enough Thirteen. Iowa Appendix. Figures of Importance Notes Index

Editorial Reviews

Equal Before the Law grabs your attention on page one and never lets you go. This is a first-of-its-kind, behind-the-scenes look into the decision that changed marriage in America forever. You’ll chuckle, you may even cry, and agree or disagree with the Court’s decision, you’ll put the book down understanding why, and how, Varnum changed everything.”—Zach Wahls, LGBTQ advocate



“Tom Witosky and Marc Hansen have told a compelling story of how elected judges in Iowa—America’s heartland—struck down prohibitions on same-sex marriage as discriminatory, out of the state’s tradition of tolerance and equality. Some of these courageous jurists were recalled, but their prescience offered a pathway to a greater acceptance of marriage equality in the country.”—Al Hunt, Bloomberg



“Equal Before the Law fills an important need, and does it very well. Much has been written about the fight for LGBT rights at the national level, but the progress we have achieved on one important issue—same-sex marriage—has occurred almost entirely at the state level, and too little has been written about that. This insightful, informative, and well-written account of the fight for same-sex marriage in Iowa helps fill that vacuum very well. Tom Witosky and Marc Hansen do an excellent job of weaving three threads together—the personal, the judicial, and the political. It is an essential addition to any reading list about the fight for LGBT equality in this century.”—Congressman Barney Frank (retired)

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