Remembering Varnum v. Brien with Pride
How the Iowa Supreme Court's same-sex marriage decision still gives me hope
It’s June. Pride Month. The month in which we commemorate and celebrate LGBTQ+ culture and rights. But buzzing in the periphery of the celebration this year is what feels like a newly energized and orchestrated attack on the LGBTQ+ community—an abrasive and noisy movement being led, unapologetically, by politicians and religious leaders at both a national and local level.
Just last week, for example, my former pastor (“former” being the operative word) used his platform to call for the re-illegalization of same-sex marriage. And he’s not alone. Despite an Iowa Supreme Court decision and United States Supreme Court decision holding otherwise, the pro-heterosexual-and-no-one-else-marriage sentiment is, again, growing louder both in this state and beyond.
Any time this hateful rhetoric swells (which is much too often, by the way), I turn to the same place. I turn to the words of the late Iowa Supreme Court Chief Justice Mark Cady in Varnum v. Brien, the case that declared unconstitutional the Iowa statute that limited civil marriage to a union between a man and a woman.
I’ve read Varnum dozens of times since its filing on April 3, 2009. I’ve read it with the eyes and mind of a college senior, a law student, a lawyer, a mom, an ally and an Iowan, and never has it ceased to make me cry—both through its beauty and reason. And this time was no different.
Each time I read Chief Justice Cady’s words, I am struck by the themes of humanity and inclusion that are woven throughout, along with his gentle but persistent reminders of the distinction between civil marriage recognized by the state and religious marriage recognized by the church.
Even in his introduction of the case, his grace and intention are apparent:
“This lawsuit is a civil rights action by twelve individuals who reside in six communities across Iowa. Like most Iowans, they are responsible, caring, and productive individuals. They maintain important jobs, or are retired, and are contributing, benevolent members of their communities. They include a nurse, business manager, insurance analyst, bank agent, stay-at-home parent, church organist and piano teacher, museum director, federal employee, social worker, teacher, and two retired teachers. Like many Iowans, some have children and others hope to have children. Some are foster parents. Like all Iowans, they 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.
“Despite the commonality shared with other Iowans, the twelve plaintiffs are different from most in one way. They are sexually and romantically attracted to members of their own sex. The twelve plaintiffs comprise six same-sex couples who live in committed relationships. Each maintains a hope of getting married one day, an aspiration shared by many throughout Iowa.”
“Like all Iowans, they 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.”
Chief Justice Cady took great care to describe the same-sex couples in the case as human beings seeking nothing more than equal treatment by their home state. He painted a picture of their anguish “due to the inability to obtain a civil marriage in Iowa,” including “disadvantages and fears” such as:
“the legal inability to make many life and death decisions affecting their partner, including decisions related to health care, burial arrangements, autopsy, and disposition of remains following death. Various plaintiffs told of the inability to share in their partners’ state-provided health insurance, public employee pension benefits, and many private-employer-provided benefits and protections. They also explained how several tax benefits are denied. Adoption proceedings are also more cumbersome and expensive for unmarried partners. Other obstacles presented by the inability to enter into a civil marriage include numerous nongovernmental benefits of marriage that are so common in daily life they often go unnoticed, such as something so simple as spousal health club memberships. Yet, perhaps the ultimate disadvantage expressed in the testimony of the plaintiffs is the inability to obtain for themselves and for their children the personal and public affirmation that accompanies marriage.”
He illustrated that the intentions of the same-sex couples were anything but malevolent.
“They seek to declare the marriage statute unconstitutional so they can obtain the array of benefits of marriage enjoyed by heterosexual couples, protect themselves and their children, and demonstrate to one another and to society their mutual commitment.”
In setting the stage for the court’s analysis, Chief Justice Cady reminded that the Iowa Constitution is the cornerstone of governing in Iowa and that article I, section 6 of the Iowa Constitution, known as the equal protection clause, provides that “[a]ll laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.”
With just a few potent and measured sentences, Chief Justice Cady articulated why Iowa’s marriage law was not operating equally amongst its citizens as required by our Constitution.
“It is true the marriage statute does not expressly prohibit gay and lesbian persons from marrying; it does, however, require that if they marry, it must be to someone of the opposite sex. Viewed in the complete context of marriage, including intimacy, civil marriage with a person of the opposite sex is as unappealing to a gay or lesbian person as civil marriage with a person of the same sex is to a heterosexual. Thus, the right of a gay or lesbian person under the marriage statute to enter into a civil marriage only with a person of the opposite sex is no right at all. Under such a law, gay or lesbian individuals cannot simultaneously fulfill their deeply felt need for a committed personal relationship, as influenced by their sexual orientation, and gain the civil status and attendant benefits granted by the statute. . . .
“By purposefully placing civil marriage outside the realistic reach of gay and lesbian individuals, the ban on same-sex civil marriages differentiates implicitly on the basis of sexual orientation.”
“Thus, the right of a gay or lesbian person under the marriage statute to enter into a civil marriage only with a person of the opposite sex is no right at all.”
Then, with the precision of a surgeon but the elegance of a poet, Chief Justice Cady proceeded to dismantle every purported government justification for the law.
On the integrity of traditional marriage, Chief Justice Cady wrote:
“First, the County argues the same-sex marriage ban promotes the ‘integrity of traditional marriage’ by ‘maintaining the historical and traditional marriage norm ([as] one between a man and a woman).’ . . . When a certain tradition is used as both the governmental objective and the classification to further that objective, the equal protection analysis is transformed into the circular question of whether the classification accomplishes the governmental objective, which objective is to maintain the classification. In other words, the equal protection clause is converted into a ‘barren form of words’ when ‘discrimination . . . is made an end in itself.’”
“In other words, the equal protection clause is converted into a ‘barren form of words’ when ‘discrimination . . . is made an end in itself.’”
On the promotion of optimal environment to raise children:
“The civil marriage statute is under-inclusive because it does not exclude from marriage other groups of parents—such as child abusers, sexual predators, parents neglecting to provide child support, and violent felons—that are undeniably less than optimal parents. Such under-inclusion tends to demonstrate that the sexual-orientation-based classification is grounded in prejudice or ‘overbroad generalizations about the different talents, capacities, or preferences’ of gay and lesbian people, rather than having a substantial relationship to some important objective. If the marriage statute was truly focused on optimal parenting, many classifications of people would be excluded, not merely gay and lesbian people.”
On the promotion of procreation:
“While heterosexual marriage does lead to procreation, the argument by the County fails to address the real issue in our required analysis of the objective: whether exclusion of gay and lesbian individuals from the institution of civil marriage will result in more procreation? . . . . Thus, the sole conceivable avenue by which exclusion of gay and lesbian people from civil marriage could promote more procreation is if the unavailability of civil marriage for same-sex partners caused homosexual individuals to ‘become’ heterosexual in order to procreate within the present traditional institution of civil marriage. The briefs, the record, our research, and common sense do not suggest such an outcome.”
But in what is the most powerful portion of the decision, Chief Justice Cady addressed “the reason for the exclusion of gay and lesbian couples from civil marriage left unspoken by the [state]: religious opposition to same-sex marriage.”
“While unexpressed, religious sentiment most likely motivates many, if not most, opponents of same-sex civil marriage and perhaps even shapes the views of those people who may accept gay and lesbian unions but find the notion of same-sex marriage unsettling. Consequently, we address the religious undercurrent propelling the same-sex marriage debate as a means to fully explain our rationale for rejecting the dual-gender requirement of the marriage statute.
“It is quite understandable that religiously motivated opposition to same-sex civil marriage shapes the basis for legal opposition to same-sex marriage, even if only indirectly. Religious objections to same-sex marriage are supported by thousands of years of tradition and biblical interpretation. . . . Whether expressly or impliedly, much of society rejects same-sex marriage due to sincere, deeply ingrained--even fundamental--religious belief.
“Yet, such views are not the only religious views of marriage. As demonstrated by amicus groups, other equally sincere groups and people in Iowa and around the nation have strong religious views that yield the opposite conclusion.
“This contrast of opinions in our society largely explains the absence of any religion-based rationale to test the constitutionality of Iowa's same-sex marriage ban. Our constitution does not permit any branch of government to resolve these types of religious debates and entrusts to courts the task of ensuring government avoids them. The statute at issue in this case does not prescribe a definition of marriage for religious institutions. Instead, the statute declares, ‘Marriage is a civil contract’ and then regulates that civil contract. Thus, in pursuing our task in this case, we proceed as civil judges, far removed from the theological debate of religious clerics, and focus only on the concept of civil marriage and the state licensing system that identifies a limited class of persons entitled to secular rights and benefits associated with civil marriage.
“Our constitution does not permit any branch of government to resolve these types of religious debates and entrusts to courts the task of ensuring government avoids them.”
“We, of course, have a constitutional mandate to protect the free exercise of religion in Iowa, which includes the freedom of a religious organization to define marriages it solemnizes as unions between a man and a woman. This mission to protect religious freedom is consistent with our task to prevent government from endorsing any religious view. State government can have no religious views, either directly or indirectly, expressed through its legislation. This proposition is the essence of the separation of church and state.
“As a result, civil marriage must be judged under our constitutional standards of equal protection and not under religious doctrines or the religious views of individuals. 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.
. . . .
“In the final analysis, we give respect to the views of all Iowans on the issue of same-sex marriage--religious or otherwise--by giving respect to our constitutional principles. These principles require that the state recognize both opposite-sex and same-sex civil marriage. Religious doctrine and views contrary to this principle of law are unaffected, and people can continue to associate with the religion that best reflects their views. A religious denomination can still define marriage as a union between a man and a woman, and a marriage ceremony performed by a minister, priest, rabbi, or other person ordained or designated as a leader of the person's religious faith does not lose its meaning as a sacrament or other religious institution. The sanctity of all religious marriages celebrated in the future will have the same meaning as those celebrated in the past. The only difference is civil marriage will now take on a new meaning that reflects a more complete understanding of equal protection of the law. This result is what our constitution requires.”
“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.”
These words from Chief Justice Cady, now more than a decade old, were groundbreaking. The decision not only “broke the silence that has existed in other court opinions about the role of religion in this matter”* but made Iowa one of the first states in the country to recognize same-sex marriage. It put the state in the spotlight during the national debate on the issue.
Now, more than 10 years later, Iowa is in the national spotlight for very different reasons—reasons that break my heart.
But Chief Justice Cady’s pen strokes of brilliance, grace and inclusion still remain law in Iowa. And it’s his words, not the words of our state politicians, my former pastor or the like, that I choose to celebrate this Pride Month.
*Cain, P. (2009). Contextualizing Varnum v. Brien: A "Moment" in History. 13 J. Gender Race & Just. 27, 46.
Well done. Completely agree. Judgement or discrimination based on sexual pref is wrong.
Thank you and welcome!