Sexual Orientation and the Law Blog

Varnum and the separation of powers

Professor Pat Cain, who helped organize a law and history professors' amicus brief in Varnum, writes in today's Iowa City Press-Citizen that unlike the California constitution,

Iowa's constitution wisely does not allow the people to amend the constitution directly. Iowa's constitution, as the Iowa Supreme Court emphasized today, protects our "republican form of government." Under this form of government, the legislative branch enacts legislation and the courts serve as a check on that legislative power to protect individual freedoms and ensure equal treatment.

How refreshing to see this fundamental principle back in fashion, at least in Iowa.

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By the numbers: the possible human and economic impacts of marriage equality in Iowa

According to an email yesterday from the Williams Institute at UCLA Law School, "the impact of allowing same-sex couples to marry [in Iowa] would bring Iowa a substantial economic boost."

According to Williams Institute data:

• The Census Bureau’s American Community Survey shows that there are 6,425 same-sex couples living in Iowa.
• Nearly a quarter of these couples (24.2%) are raising children - more than 3,000 children.
• Des Moines and Cedar Rapids have the largest number of same-sex couples among Iowa cities, 777 and 603 respectively. 
• Same-sex couples marrying in Iowa would boost the state budget by $5.3 million per year over the next three years.
• Allowing same-sex couples to wed could result in approximately $160 million in new spending on weddings and tourism in Iowa.

Although this most recent data does not appear to be available at a web link, the Williams Institute has an older "census snapshot" for Iowa available at http://www.law.ucla.edu/williamsinstitute/publications/IowaCensusSnapshot.pdf.

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Iowa legislative leaders cheer marriage decision, dimming prospects for a constitutional amendment to overturn it

According to the Des Moines Register, the Iowa House Speaker and Senate majority leader issued a joint press release extolling the unanimous decision in Varnum v. Brien: “When all is said and done," it said, "we believe the only lasting question about today’s events will be why it took us so long." 

According to the newspaper, this rather stunning statement of support "appeared to dim" the prospects for conservative and religious activists who vow to pursue a state constitutional amendment overturning the decision. 

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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.

Gay Marriage Legal in Iowa--Iowa Supreme Court Rules Today

The Iowa Supreme Court ruled today that the same sex marriage ban is unconstitutional, upholding a Polk County decision from 2007.  Here is a link to an Article discussing the Varnum v. Brien decision at MSNBC.com

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Link to Iowa marriage opinion

Main link is here: http://www.judicial.state.ia.us/Supreme_Court/Recent_Opinions/20090403/07-1499.pdf

Backup link is here: http://howappealing.law.com/07-1499.pdf

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Same-sex marriage will be legal in Iowa

The Des Moines Register is reporting that the Iowa Supreme Court has upheld the lower court and invalidated Iowa's statute prohibiting same-sex marriage.  The opinion is unavailable because the Court's web site has crashed.

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Hate crimes legislation is re-introduced in Congress

The Local Law Enforcement Hate Crimes Prevention Act was introduced yesterday with bipartisan support by Reps. John Conyers (D-MI) and Mark Kirk (R-IL).  The legislation would provide local police and sheriff’s departments with federal resources to combat hate violence.  The Senate is expected to introduce a bipartisan companion bill soon.

According to the Human Rights Campaign,

The LLEHCPA gives the Justice Department the power to investigate and prosecute bias motivated violence where the perpetrator has selected the victim because of the person's actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity or disability.  It provides the Justice Department with the ability to aid state and local jurisdictions either by lending assistance or, where local authorities are unwilling or unable, by taking the lead in investigations and prosecutions of violent crime resulting in death or serious bodily injury that were motivated by bias.  It also makes grants available to state and local communities to combat violent crimes committed by juveniles, train law enforcement officers, or to assist in state and local investigations and prosecutions of bias motivated crimes.
 
A wide coalition of national organizations has called for the passage of the LLEHCPA legislation.  Some of those organizations supporting this legislation include:  the National Sheriffs Association; International Association of Chiefs of Police; 26 state Attorneys General; and the National District Attorneys Association.

More information is available at www.FightHateNow.org.

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Some perspectives in advance of the Iowa marriage decision

Mark Kende at Drake Law School offers some background on the Iowa Supreme Court and some of its previous rulings which may shed some light on Friday's decision.

I authored an amicus brief in the Iowa Supreme Court on behalf of a group of Iowa-based law and history professors, arguing that a decision upholding marriage would be in the best traditions of Iowa history and jurisprudence.  The brief is available here.

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Iowa marriage decision will be issued Friday

According to a media advisory on its web site, the Iowa Supreme Court on Friday will issue its decision in Varnum v. Brien, the case on whether Iowa's statutory prohibition on same-sex marriage violates the Iowa constitution. 

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April Lesbian/Gay Law Notes now available

The April edition of Professor Art Leonard's indispensable publication Lesbian/Gay Law Notes is now available here.

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Sweden becomes fifth European country to approve marriage equality

Sweden has allowed registered partnerships since the mid-1990s.  Now its parliament has voted overwhelmingly -- 261 to 22 -- to grant full marriage rights to same-sex couples.

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Legal saga over eHarmony continues

Settling a New Jersey discrimination lawsuit, eHarmony yesterday unveiled its new gay dating site, Compatible Partners.  But another suit in California argues that the company's approach amounts to "separate but equal," and some wonder what all this means for established gay-oriented dating sites.  The web site Queerty examines some of the issues.

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Retired military officers: keep Don't Ask, Don't Tell

More than 1,000 retired military officers have signed a statement urging President Obama and Congress to maintain the law that prohibits gays and lesbians from serving openly in the military.  The letter is available here.  The list of signatories is available here. 

Without offering any research or basis for the argument, the short, six-paragraph letter essentially just repeats the signatories' view that "homosexuality is incompatible with military service." 

A recent book on Don't Ask, Don't Tell argues that military officials exaggerated the threat to unit cohesion and ignored research and data when formulating the current policy on gay troops.

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Follow family law on Twitter

Joe Fiorill, a Georgetown law student (and editor of the Georgetown Journal of Gender and the Law), offers a Twitter feed of news about family law, including issues relevant to sexual orientation. Go to http://twitter.com/FamilyLawTweets.

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Efforts for marriage equality shift back to New England

The San Francisco Examiner ponders the new "Yankee activism" on gay rights.

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