Friday, April 3, 2009

Kerber on the historical brief in the Iowa same-sex marriage case

Linda K. Kerber, May Brodbeck Professor in the Liberal Arts and Professor of History at the University of Iowa, is a signatory on an amicus brief of historians and law professors in today's Iowa Supreme Court case on the right to same-sex marriage, Varnum v. Brien. She has this op-ed forthcoming in the Iowa City Press-Citizen:

The filing of a historians’ amicus brief in same-sex has been a common practice ever since 2003, when Justice Margaret Marshall’s opinion in Goodridge v. Massachusetts Department of Public Health drew on ingredients of one developed by Nancy Cott and Michael Grossberg and signed by dozens of historians. Those briefs have emphasized that the meanings of marriage have changed over time – the practices of coverture, which gave husbands nearly unlimited access to their wives’ bodies at marriage, and therefore also gave husbands authority over the property women brought to the marriage and earned during it, have been chipped away at over the course of two centuries; interracial marriage is no longer punished as miscegenation. The briefs also emphasized the gradually increasing practice of filtering state benefits through marriage, thus denying equal access to state benefits and protection to couples denied access to marriage. All these arguments were made, one way or another, in briefs filed by litigators or amici in Varnum.
But the Brief filed by Iowa Professors of Law and History was different. This brief, drafted by Stephen Sanders of Mayer Brown LLP, Chicago, with the assistance of 23 scholars based in Iowa’s colleges and universities, focuses squarely on the first article of Iowa’s constitution, which begins, “All men and women are, by nature, free and equal, and have certain inalienable rights among which are those of enjoying and defending life and liberty, acquiring and possessing and protecting property, and pursuing and obtaining safety and happiness.” We argued that Iowa has a strong – albeit imperfect – record in expanding the meaning of equal protection of the laws. In our brief, we sought to instruct the Court in its own powerful history.
In 1839 – 26 years before the ratification of the Thirteenth Amendment, the Iowa Supreme Court refused to recognize a contract that enslaved a man. [ In re: Ralph 1839 ]. In 1851 the legislature removed legal constraints on interracial marriage; the U.S. Supreme Court would not rule that anti-miscegenation laws are a denial of equal protection until 1967. (Iowa’s neighboring states waited until deep into the twentieth century; Missouri waited until after the decision in Loving gave them no choice.) In 1868 the Iowa Supreme Court ruled that segregated schools are a denial of equal protection of the laws. [Clark v. Board of Directors, 24 Iowa 266] In 1873, nearly a century before Heart of Atlanta Motel Inc., v. United States [379 U.S. 241 (1964)] , the Iowa Supreme Court ruled that discrimination in access to public accommodations is a denial of equal protection of the laws. [ That case, brought by Emma Coger, who was thrown off the first class dining table on a steamboat crossing from Keokuk to Quincy, Illinois, deserves to be much better known. Coger v. Northwestern Union Packet Co., 37 Iowa 145]. And in 1949 the Iowa Supreme Court reiterated that discrimination in access to public accommodation is a denial of equal protection of the laws in response to a sit-in at a downtown Des Moines lunch counter. [ State v. Katz, 241 Iowa 115 ].
Today’s carefully crafted decision does not name the Brief of Professors of Law and History, but pages 17-18 lean heavily on its specifics, and the general sense of the argument – our brief was informally known as the “equality brief” – infuses the entire decision, from start to finish. The decision places Kate and Trish Varnum and all their colleagues in the suit in a grand tradition of individuals who have helped the nation give life to the commitments of Iowa’s constitution and of the Fourteenth Amendment’s promise that “No state shall...deny to any person within its jurisdiction equal protection of the laws.” It does a historian’s heart good to see history lessons studied so carefully.

Linda K. Kerber
May Brodbeck Professor in the Liberal Arts and Professor of History
University of Iowa

1 comment:

Gordon said...

If people knew more of Iowa's history, they wouldn't be so surprised that our Supreme Court unanimously found that denying the right to marry to same-sex couples is unconstitutional. The amicus brief referred to in this blog should be mandatory reading in Iowa schools. The link to it, though, goes to the SC decision, not the amicus brief.