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Guest Commentary

An important addition to the library of Iowa history

8/12/2015

While Congress and several state legislatures, including Iowa’s, were reinforcing the barriers to gay marriage, a determined handful of Iowa gay-rights advocates were preparing to go to court. A new book, “Equal Before the Law,” which came off the presses this summer, offers a highly readable, thoroughly researched and sometimes jolting look at how Iowa rocked the nation’s social and legal foundations in the process. It is an important addition to the library of Iowa history.

The 213-page book, co-authored by retired Des Moines Register writers Marc Hansen and Tom Witosky, details every inch of the legalities involved without sounding like a professorial dissertation, and describes the painful struggle and reactions of the gay community without allowing the emotional impact to overwhelm the story. (Full disclosure: We worked in different departments, but most of my 30 years at the Register overlapped the 30-plus of Hansen and Witosky.)

The book’s first look at the gay-marriage issue comes from the perspective of a 5-year-old girl who overhears a casual conversation in which her lesbian parents, “Moma” and “Mema,” mentioned their legal status.

“You’re not married?” she sobs.

The kindergartner was yet to learn what that meant — yet to hear the taunts, yet to learn that a pre-school would prohibit her and her parents from taking part in a school “family” function, yet to understand that her status as the child of unwed parents could impact her access to health care, to inheritance rights, to certain tax benefits.

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The federal “defense-of-marriage” law took effect two years before she was born; she was weeks old, in 1998, when Iowa followed suit. And polls showed popular support for such laws.

No such laws were thought necessary, nor were such polls taken, a few decades before. But a growing movement fostered by a growing number of gays coming out of the closet encouraged gays to challenge their social and legal ostracism. Hansen and Witosky profile the leaders of the challenge and detail their motivations, as well as those supporting the status quo.

Same-sex marriage would be contrary to tradition, contrary to many religions, contrary to the purposes for which marriage laws existed, opponents said. But when the issue hit the courts, plaintiffs — and judges — kept asking: Where is the harm? Who suffers if gays wed? What justifies denial of marriage rights?

In the Iowa Supreme Court’s unanimous ruling that erased the ban, Justice Mark Cady wrote: “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.”

Because much of the debate centered on whether the issue should be decided by legislators or judges, so does much of the book. “Activist judges” had usurped the authority of legislators, opponents said. Cady’s response “made clear the supreme court’s duty as arbiter and protector of the state constitution: ‘A statute inconsistent with the Iowa constitution must be declared void, even though it may be supported by strong and deep-seated traditional beliefs and popular opinion.’ ”

How popular that opinion was became clear when the opponents succeeded in convincing 54-plus percent of Iowa voters to oust the three justices up for retention in 2010. But two years later, with another of the justices up for retention in a presidential-election year, and hence far more eligible voters casting ballots, 54-plus percent voted to retain — a possible indication of a shift in opinion.

Just weeks after The Iowa decision, the U.S. Supreme Court issued its split decision also affirming the right to gay marriage. If that weakened the impact of the Iowa decision, it did nothing to diminish Iowa’s influence — or the importance of, or educational value of, “Equal Before the Law.” A fine piece of work. CV

 

Bill Leonard of Des Moines is a retired Des Moines Register editorial writer.

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