Iowa's Civil Rights Leadership

April 3, 2009, 10:00 a.m.

Iowa's Supreme Court Says State Constitution Upholds Same Sex Marriage;
Forbids Legislative Effort to Ban
(brought to you by FromDC2Iowa.blogspot.com*)
See, "L'Iowa devient le troisième Etat américain à légaliser le mariage homosexuel," Le Monde, April 3, 2009; Monica Davey and Liz Robbins, "Iowa Court Says Gay Marriage Ban Is Unconstitutional," New York Times, April 3, 2009; Register Staff Reports, "Unanimous ruling: Iowa marriage no longer limited to one man, one woman," Des Moines Register, April 3, 2009.

And here is the Court's full opinion in Varnum v. Brien, April 3, 2009.

Today my home state contributes one more "Iowa brag" to be used when curious coastal residents ask where I'm living these days and are told "Iowa." After explaining to them that Idaho, Ohio and Iowa are really three states, not one, their response is sometimes, "But Iowa, Nick? Why would you want to live in Iowa?"

I'm reluctant to wax too effusive. After all, one of the answers to their question is the fact that Iowa's relatively low population density makes for much less stressful daily living. (The state's three million residents are fewer than the number who crowd many of their coastal cities.)

There are lots of answers. The number of lists of best places to live -- for the young, for entrepreneurs, for the elderly, for schools -- often put Iowa cities at or near the top. Iowa's scientific research and academic leaders include an impressive list from George Washington Carver to James Van Allen (for whom the Van Allen radiation belts are named). The nation's largest teaching hospital, in Iowa City, has some of the top rated departments in the country.

Iowa City is also one of three "cities of literature" worldwide designated by the United Nations (along with Edinburgh and Melbourne).

Indeed, there are lots of reasons why those who confuse Iowa with Idaho, and treat both states as nothing more than "fly over country" are missing out on the gem that is Iowa.

But one of the greatest irritants for me is when I have the sense that a coastal resident's preconceived notion of the state's residents is of a group of uneducated, conservative, rednecks who would vote "Larry the Cable Guy" into the governor's office if only he'd run.

Iowa has a proud history of civil rights leadership.

After all, it was little more than a year ago that this overwhelmingly white state put the lie to the notion that an African-American would not stand a chance as a presidential candidate. Thanks to Iowa that African-American is now in the White House and the world has a new view of Americans in general.

And today Iowa becomes one of three states (along with Connecticut and Massachusetts) to recognize gay marriage. I don't want to spoil today by getting into a rehash of the merits of the issue -- though I agree with the court's opinion both as a matter of state constitutional interpretation and as a matter of public policy. (See Nicholas Johnson, "Church, State and Gay Marriage," September 1, 2007.) Frankly, as I listened to the oral arguments before the Iowa Supreme Court in the Varnum case I didn't think the gay marriage opponents did a very good job of marshaling an argument for their position.

But you don't even have to agree with the court's outcome to recognize that it says something about the state that is of economic as well as civil rights significance. Richard Florida talks about the contribution of the "creative class" to any state's economic development. And among the qualities of life, culture, and society sought by those who have the most to contribute to entrepreneurial and other economic growth -- along with quality schools, theater, entertainment venues, parks and trails -- are the range of diversity and the sense of an open, progressive, welcoming society, of which this decision is but one more bit of very solid evidence (e.g., "[the cities] faring the best right now are not only major education centers; they also are regional health-care hubs that draw people into the city and benefit from a stable, educated, highly skilled work force. . . . Economists credit a highly skilled work force for the resilience of college towns. Edward Glaeser, an economics professor at Harvard University, has demonstrated that as the share of the adult population with college degrees in a city increases by 10%, wages correspondingly rise by about 7.8%." Kelly Evans, "Why College Towns Are Looking Smart," Wall Street Journal, March 24, 2009.).

The point is that these judgments by today's Iowans are not flukes.

Why do I head this blog entry "Iowa's Civil Rights Leadership"?

Let me answer that by quoting from Justice Cady's well-crafted opinion, which is far more precisely documented than I could create off the top of my head:

In the first reported case of the Supreme Court of the Territory of Iowa, In re Ralph, 1 Morris 1 (Iowa 1839), we refused to treat a human being as property to enforce a contract for slavery and held our laws must extend equal protection to persons of all races and conditions. 1 Morris at 9. This decision was seventeen years before the United States Supreme Court infamously decided Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 15 L. Ed. 691 (1856), which upheld the rights of a slave owner to treat a person as property. Similarly, in Clark v. Board of Directors, 24 Iowa 266 (1868), and Coger v. North West. Union Packet Co., 37 Iowa 145 (1873), we struck blows to the concept of segregation long before the United States Supreme Court’s decision in Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954). Iowa was also the first state in the nation to admit a woman to the practice of law, doing so in 1869. Admission of Women to the Bar, 1 Chicago Law Times 76, 76 (1887). Her admission occurred three years before the United States Supreme Court affirmed the State of Illinois’ decision to deny women admission to the practice of law, see Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 139, 21 L. Ed. 442, 445 (1873), and twenty-five years before the United States Supreme Court affirmed the refusal of the Commonwealth of Virginia to admit women into the practice of law, see Ex parte Lockwood, 154 U.S. 116, 118, 14 S. Ct. 1082, 1083, 38 L. Ed. 929, 930 (1894). In each of those 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.” See Coger, 37 Iowa at 153.

Iowa has had many proud days. This is just one more.
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* Why do I put this blog ID at the top of the entry, when you know full well what blog you're reading? Because there are a number of Internet sites that, for whatever reason, simply take the blog entries of others and reproduce them as their own without crediting the source. I don't mind the flattering attention, but would appreciate acknowledgment as the source -- even if I have to embed it myself. -- Nicholas Johnson

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Church, State and Gay Marriage

September 1, 2007, 7:00 a.m.

Church, State and Gay Marriage
Three editorials this morning offer a similar approach to Judge Hanson's 63-page ruling holding Iowa's prohibition on gay marriage ("only a marriage between a male and a female is valid") to be unconstitutional.

They are analogous in a way to the bumper sticker's advice: "Opposed to abortion? Don't have one." In this context I guess it would be, "Opposed to gays marrying? Don't marry one."

(It's not that simple, of course. With the exceptions of self-defense, insanity, and manslaughter, among others, there are both laws and widespread general agreement that frown on "murder." So we're left with "when, if ever, prior to the moment of birth, should the decision to abort a fetus be equated with the deliberate killing of a fully born human being for purposes of inclusion within the criminal law definition of 'murder'?" Obviously, this has been a matter of considerable disagreement.)

The similarity between the controversies surrounding abortion and gay marriage, however, is that both have utilized arguments that tend to conflate (1) one's personal, religious, moral, ethical, philosophical and public policy beliefs and practices, with (2) the desirability and propriety of the state, the government, imposing one's standards as a matter of criminal or civil law on everyone (or groups of citizens taking matters into their own hands).

I happen to think that urban transportation by bicycle makes a lot of sense. It strengthens your body, awakens your mind, improves your health, reduces disease -- with significant savings in our $2 trillion, profit-maximizing health insurance system. It is environmentally friendly, reduces greenhouse gases, reduces our disproportionate use of petroleum -- and need for the other (ultimately, with externalities) $2 trillion total cost: the Iraq war that was apparently necessary to get our oil out from under their sand. It requires less expense (or could if more did it) of road building and repair. It's cheaper, usually faster, and saves looking (and paying) for parking.

But I'd agree the bumper sticker (if there were room for it on a bike) ought to read: "Favor bicycle transportation? Get a bike and ride it."

In other words, I would not advocate criminal penalties for driving automobiles in urban areas; additional license fees maybe (as reduced London's congestion), but not compulsory bicycle riding.

The distinction between one's personal preferences and imposing them on everyone else is a distinction too often overlooked in everything from casual conversation to newspaper editorials.

That's why I was pleased to see this morning's editorial efforts in the Register and Gazette.

The Gazette draws the distinction between church and state from the start of the editorial:

A Polk County district judge’s ruling Thursday that Iowa’s law banning same-sex marriage is unconstitutional sets the stage for a resolution of this issue . . .. [T]his debate needs to be settled regardless of whether any consensus is ever reached in the moral and religious arenas.

It continues:

Whether same-sex marriage is right or wrong morally is a matter of faith or personal belief. However, civil marriage, whether between opposite- sex or same-sex partners, is not the legal business of religion.

That task belongs to governments that preserve both the freedom of religion and the rights of those who disagree with others’ beliefs.

Governments need to define legal unions between two people because tax issues, insurance and other benefits and many other public policies rely on definitions of various relationships.

. . .

Beyond legal circles, churches and their members and families continue to struggle with the samesex marriage issue and likely will do so for years to come.

In the meantime, Iowa can make sure its laws don’t place unfair restrictions on people’s civil freedoms, including same-sex marriage.

The paper couldn't have made the issue -- the distinction between church and state -- much clearer. Editorial, "Let Court Settle Marriage Debate," The Gazette, September 1, 2007, p. A4.

The Register gets to the Gazette's mountaintop by a different trail. Rather than have the government grant gays the rights to "marriage," have it grant all couples -- gay and straight -- equivalent "civil union" rights, and then leave the "marriage" business to churches:

To truly assure equal treatment, the government should get out of the "marriage" business altogether and grant civil unions to everyone, gay or straight.

That would allow the law to focus on the legal benefits to which all couples are entitled in a democracy that espouses equality for all people - and allow religious institutions to set their own rules for marriage.

Editorial, "Extending Civil Rights is Part of a Great American Tradition," Des Moines Register, September 1, 2007. See also, Jeff Eckhoff and Abby Simons, "Briefly, two men can say 'I do,'" Des Moines Register, September 1, 2007, and Editorial, "Polk ruling correct: Law unconstitutional; Gay-marriage ban violates rights," Des Moines Register, September 1, 2007.

Once in a while (quite often actually) the editorial writers get it right. And so it was (in my opinion) this morning.

Individuals, religious organizations and their spokespersons and leaders should be free to offer such rejoinder as they're able to another bumper sticker -- "Hatred is not a family value" -- citing such teachings of Jesus (and others) as they find persuasive in their opposition to gay marriage.

Legislating their hatred is not an appropriate role for government. Protecting their First Amendment rights to talk about it is.

Just as is protecting gays' constitutional rights to equal protection of the law with straights when it comes to marriage -- or universal civil unions.

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