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April 3, 2009

Lessons of history in the Iowa marriage decision

The following was written by Linda Kerber, May Brodbeck Professor in Liberal Arts & Sciences at the University of Iowa and past president of the American Historical Association.  She was one of the signatories to the amicus brief of historians and law professors submitted in the Iowa same-sex marriage case Varnum v. Brien.

    The filing of a historians’ amicus brief in same-sex marriage cases has been a common practice ever since 2003, when Chief Justice Margaret Marshall’s opinion in the Massachusetts Goodridge case drew on ingredients of one developed by Nancy Cott and Michael Grossberg and signed by dozens of historians.  Those briefs have emphasized that the meanings of marriage have changed over time -- the practices of coverture, which gave husbands nearly unlimited access to their wives’ bodies at marriage, and therefore also gave husbands authority over the property women brought to the marriage and earned during it, have been chipped away at over the course of two centuries; interracial marriage is no longer punished as  miscegenation.  They also emphasized the increasing practice of filtering state benefits through marriage, thus denying equal access to state benefits and protection to couples denied access to marriage.  All these arguments were made, one way or another, in briefs filed by parties or amici in Varnum.

    But the brief filed by Iowa Professors of Law and History was different.  This brief, drafted by Steve Sanders of the law firm Mayer Brown with the assistance of 23 scholars based in Iowa’s colleges and universities, focuses squarely on the first article of Iowa’s constitution, which begins, "All men and women are, by nature, free and equal, and have certain inalienable rights among which are those of enjoying and defending life and liberty, acquiring and possessing and protecting property, and pursuing and obtaining safety and happiness."  We argued that Iowa has a strong -- albeit imperfect -- record in expanding our understanding of the meaning of equal protection of the laws.  In our brief, we sought to instruct the Court in its own powerful history.

    In 1839 -- 26 years before the ratification of the Thirteenth Amendment, the Iowa Supreme Court refused to recognize a contract that enslaved a man. In re: Ralph (1839).  In 1851 the legislature removed legal constraints on interracial marriage; the U.S. Supreme Court would not rule that anti-miscegenation laws are a denial of equal protection until 1967.  (Iowa’s neighboring states waited until deep into the twentieth century; Missouri waited until after the decision in Loving gave them no choice.)  In 1868 the Iowa Supreme Court ruled that segregated schools are a denial of equal protection of the laws.  Clark v. Board of Directors, 24 Iowa 266.  In 1873, nearly a century before Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241 (1964), in a case that deserves to be much better known, the Iowa Supreme Court ruled that discrimination in access to public accommodations is a denial of equal protection of the laws. Emma Coger v. Northwestern Union Packet Co., 37 Iowa 145.  And in 1949 the Iowa Supreme Court reiterated that decision in response  to a sit-in at a downtown Des Moines lunch counter. State v. Katz, 241 Iowa 115.

    Today’s carefully crafted decision does not name the Brief of Iowa Professors of Law and History, but pages 17-18 lean heavily on its specifics, and the general sense of the argument -- our brief was informally known as the "equality brief" -- infuses the entire decision, from start to finish.  The decision places Kate and Trish Varnum and all their colleagues in the suit in a grand tradition of individuals who have helped the nation give life to the committments of Iowa’s constitution and of the Fourteenth Amendment’s promise that "No state shall...deny to any person within its jurisdiction  equal protection of the laws."  It does a historian’s heart good to see history lessons studied so carefully.

April 3, 2009 | Permalink

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