What Guided Iowa’s Supreme Court?

Does Iowa’s new ruling permitting gay marriage reflect the state's people and past, or did outside special interests win?

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Just a short walk from the famous arch in St. Louis, Missouri, is a beautiful but ignominious structure, the majestic Old Courthouse, site of the first of two Dred Scott trials in the 19th century that ruled slaves were property and accelerated civil war.

To the north, Iowans, even in territorial times, celebrated freedoms, building a legal legacy and culture that elevated the rights of the individual, with a foresight lost on much of the rest of the nation. In 1839, in the first reported case of the Supreme Court of Iowa, judges refused to treat a human being as property or enforce a contract for slavery, holding that Iowa’s laws must extend to people of all skin colors.

That Iowa decision was 17 years before the U.S. Supreme Court decided in one of the most infamous cases of American history that the slave Dred Scott was just that — and had no standing to sue. “They (the Iowa territorial judges) were ahead of the U.S. Supreme Court,” said Mark Kende, the James Madison professor in constitutional law at Drake University in Des Moines.

On April 3, the seven-member Iowa Supreme Courts court ruled unanimously that the state’s ban on gay marriage was unconstitutional, effectively establishing marriage rights for same-sex couples.

It is clear to some legal scholars and other observers of Hawkeye State life and law that the recent Iowa Supreme Court decision didn’t just happen by accident or at the ideological whim of the seven jurists on the high court. “No matter who the judges are they would have had to look at that history in Iowa,” Kende said.

Iowa Organization of Women Attorneys
Arabella Mansfield, the first woman licensed to practice law in the United States, was admitted to the Iowa bar in 1869.

Iowa was the first state in the nation to admit a woman to practice law, and two decisions, in 1868 and 1873, challenged the practice of segregation.

Paul Lasley, chairman of both the sociology and anthropology departments at Iowa State University, said these decisions clearly informed the current Supreme Court’s ruling on gay marriage. (In fact these cases are referenced in some detail in the 69-page decision.)

“It is my interpretation that this is a continuation of Iowa’s historic tradition of extending equal rights to groups and individuals that are unlike the majority,” Lasley said.

Opponents of gay marriage see Iowa history in a very different light. They see the strong nuclear family, led by a married couple, one man, one woman, as central to all that Iowa is. Redefining the family, that foundation of life, pays no homage to history but perverts it, detractors of gay marriage argue.

“This court opinion represents simply the opinion of seven justices,” said Bryan English, a spokesman for the Iowa Family Policy Center, a socially conservative, faith-based organization with substantial political muscle in the state.

Chuck Offenburger, an author and journalist living in Cooper, penned the “Iowa Boy” column for The Des Moines Register when that newspaper more aggressively pursued stories outside of the state’s capitol city. Offenburger as much as anyone in the state knows the people and culture of small-town Iowa.

A Republican with some outspokenly conservative views, such as his pro-life stance on abortion, Offenburger agrees with the Iowa Supreme Court decision on gay marriage. He sees the Iowa he canvassed as a Register columnist from 1977 to 1998, and now writes about in books and Web sites and other venues, manifested in the court’s language.

Iowa Supreme Court building, Des Moines

“I think it definitely is part of the culture,” Offenburger said. “It’s the basic sense of fairness and the mentality of to each his own.”

Offenburger, who knows Iowa’s 99 counties so well that he can tell you where to find the tallest pies and the cheapest coffins, says generations of people involved in agriculture have been imbued with not only a strong sense of individual self-determination but also tolerance for others, as the farm economy relies on foreign trade.

“We have always been internationally minded people because we trade our farm products around the world,” Offenburger said.

There are other factors at work. Unlike other heavily rural states that are plagued with poverty and other social decay, Iowa has among the highest literacy rates in the nation, is a leader in per-capita library patronage and boasts of communities centered on schools and learning.

What’s more, Iowans’ ancestors came from groups that were persecuted both abroad and in the United States — and not as long ago as one would think. Mary Swander, a Carroll County native and the state’s poet laureate, recalled in an interview just last week that Irish Catholic family members living in Perry, had a cross burned in their yard in the 1920s.

“I think that’s what moved them to Atlantic,” Swander said.

“Many families have an experience with being excluded or put down,” Lasley said.

Meskwaki Indian settlement in Tama County, Iowa, circa 1890

In addition to being “way ahead on the abolitionist movement,” Iowa allowed safe passage for persecuted Mormons and permitted Native Americans who had been forced into Oklahoma to return to Tama County, Iowa, and establish what is now the Meskwaki tribal lands. “Iowans have always had a deep sense of equality,” Lasley said.

English, of the Iowa Family Policy Center, thinks the court’s decision is hardly a product of Iowa culture. In fact, he argues that the gay-marriage case is the hijacking of Iowa’s way of life and politics by out-of-state activists who, he says, have plotted for years to further a liberal agenda with gay marriage as their crowning achievement.

Iowa’s first-in-the-nation status in the presidential nominating processes of both parties makes it a target for outside ideologues, English said, noting that it is not uncommon for him to see many out-of-state license plates in Des Moines — on vehicles he suggests may be driven by these activists.

“Folks from around the country recognize they need to work Iowa all year, every year, to shape the environment,” English said. He said the court’s decision disrespects Iowans.

So what does his allegation of a political hijacking say about Iowans, whom many presidential candidates and reporters from out of state have found to be cagey campaign veterans, not easily maneuvered in a national game of special-interests chess?

“It says we tend to be awfully trusting and we need to wake up and realize we’re being played by people from out of state,” English said.

As politicized as the issue of gay marriage is, Drake’s Mark Kende said that the Iowa Supreme Court, which he contends is widely known as a moderate legal body, took a rational viewpoint out of sync with the drama surrounding the conclusion.

It’s all about equal protection under the law, pure and simple, Kende said. “Actually the reason was very narrow and moderate,” said Kende.

Added Offenburger, “Equal protection under the law, that’s at the heart of it.” Offenburger noted that Iowans who are opposed to gay marriage can simply belong to churches that don’t allow it. “This doesn’t restrict churches from doing whatever they want to do,” he said.


Chuck Hurley of the Iowa Family Policy Center led hundreds of
people opposed to the court’s ruling on same-sex marriage in prayer
outside the Iowa statehouse April 13.
State Rep. Rod Roberts, R- Carroll, a social conservative and potential GOP candidate for governor in 2010, expressed strong displeasure with the court’s unanimous ruling.

“I’m disappointed and I’m upset with their ruling, but I’m not surprised by it,” said Roberts. “Having said that, it doesn’t make it any easier to accept.”

Roberts said the foundation of the nation is the family unit, which he believes best involves heterosexual married couples. “I believe marriage is a unique relationship, a covenant, between one man and one woman,” Roberts said.

Roberts admitted he doesn’t have the answers about why people are gay, but he did say: “I don’t know if I agree with the statement that they are born gay.”

As for his constituents in west-central Iowa, Roberts said 95 percent of those who have contacted him on gay marriage are opposed to it — including many Democrats and Independents.

 

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