By Steve Sanders, visiting assistant professor, University of Michigan Law School
The political media are about to begin obsessing over the Iowa Republican straw poll, scheduled for Saturday, August 13. Recent commentary has focused on how religious conservatives have gained a chokehold on Iowa GOP politics. Evangelical Christian activists remain outraged at the 2009 decision of the Iowa Supreme Court to legalize same-sex marriage. Last fall, they mounted a well-funded campaign to oust three of the justices who signed that ruling. Their TV ads – juxtaposing footage of villainish-looking "liberal, out of control judges" against images of hunters in camouflage and a chubby kid saluting the flag – accused the justices of "ignoring our traditional values" and "imposing their own values."
Now, activist Bob Vander Plaats, who led the anti-court jihad, is pressuring presidential candidates to sign something called "The Marriage Vow," which includes a pledge of "[v]igorous opposition to any redefinition of the Institution of Marriage – faithful monogamy between one man and one woman – through statutory-, bureaucratic-, or court-imposed recognition of intimate unions which are bigamous, polygamous, polyandrous, same-sex, etc." Religious-right darlings Michele Bachmann and Rick Santorum were the first candidates to enthusiastically sign up.
The picture of Iowa we get from the mainstream media through next year's caucuses is likely to be of a state in the grip of militant Tea Partiers and theocrats. That would be a shame, because the agenda of these particular activists – with their narrow view of social equality and hostility toward an independent judiciary – is unfaithful to the state's social and legal heritage.
As the eminent Iowa historian Dorothy Schwieder put it in a book by the same title, Iowa is best understood as “the middle land.” A bellwether by virtue of its presidential caucuses, Iowa traditionally has been neither red nor blue; its modern politics are, as another historian put it, “a mixture of the traditional and the pathbreaking.” (It is notable that, despite all the noise Republicans have made about the marriage decision, Democrats in the state senate have maintained a firm stance against a constitutional amendment to overturn it.)
As I learned in researching and writing an amicus brief in the marriage case on behalf of 23 Iowa law and history professors, Iowa's social and legal history is marked by a powerful commitment to equality and inalienable rights, as well as a strong tradition of judicial review. The state has a surprisingly progressive record of respecting and advancing civil rights, individual autonomy, and the rule of law. In challenging prejudice and restraints on individual liberty, Iowa has not been content to await the word of the federal courts, the deliberations of sister states, or the safety of national consensus.
Twenty-six years before ratification of the Thirteenth Amendment, the Iowa Supreme Court declared in In Re: Matter of Ralph that “no man in this territory can be reduced to slavery.” Eleven years before ratification of the Fourteenth Amendment, the state’s constitution guaranteed African-Americans, on the same terms as all other citizens, the rights to life, liberty, and property.
The University of Iowa was the first American state university to open its degree programs to women, and its law school was one of the first to accept an African-American student. Iowa was the first state to admit a woman to the practice of law. And in the darkest days of McCarthyism, it was the only state to defeat a legislative measure that would have imposed a loyalty oath on teachers.
A state's family law is a good barometer of its overall attitude toward human liberty and autonomy. Iowa eliminated a short-lived ban on interracial marriage in 1851 – more than a century before the U.S. Supreme Court declared such laws unconstitutional. In 1867 its courts adopted a "best interests of the child" rule for child custody, abandoning a harsh common law rule that gave absolute custody to the father after divorce. In 1970, Iowa became one of the first two states to allow no-fault divorce (the other was California).
The 2009 decision for marriage equality was not Iowa's first experience with gay and lesbian rights. Since 2007, it has been among a minority of states with statutes prohibiting discrimination in employment and public accommodations on the basis of sexual orientation.
A good deal of Iowa's progressive spirit can be explained by factors of social and political heritage, including strong libertarian and egalitarian streaks attributable to the state's place on the frontier of the nation's 19th century westward expansion. According to Bruce Kempes in the Drake Law Review, what John Stuart Mill was telling the world about natural rights and human liberty in the mid-1800s “could be heard in Iowa City” during the state’s constitutional conventions. But many of Iowa's advancements also have required an independent judiciary that did not shrink from striking down legislative acts when they conflicted with the values enshrined in that constitution.
Nearly a century before Brown v. Board of Education, the Iowa Supreme Court rejected a “separate but equal” system of public education for African-American children. In 1869, it ruled that women could not be denied the right to practice law. In 1873, it held that a mixed-race passenger aboard a steamboat was entitled to the same rights and privileges as white passengers. It struck down the state's sodomy law in 1976 (putting it more than 25 years ahead of the U.S. Supreme Court's decision in Lawrence v. Texas). In 1980 it held that a child custody order could not be modified because the custodial parent was in an interracial relationship – four years before the U.S. Supreme Court would reach the same conclusion on federal grounds. "Community prejudice," the Iowa court said in that decision, "cannot be permitted to control the makeup of families."
Against this background, it is clear that the marriage decision, far from being a departure from Iowa values, was consistent with the state’s most noble social and legal traditions. "Our responsibility," Justice Mark Cady wrote for a unanimous court composed of both Democratic and Republican appointees, "is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time.”
It is equally clear that when Iowa's social conservatives, and their favored candidates like Bachmann and Santorum, attack the independence of the judiciary, agitate to deny equality to people they dislike, and insist on the rule of raw majoritarianism rather than the rule of law, they demonstrate a narrowness of mind and spirit that is antithetical to the accomplishments of generations of Iowa political and social leaders, jurists, and citizens.
[image via Taekwonweirdo]