Equality Opportunity: Marriage Litigation and Iowa’s Equal Protection Law

Goldberg, Suzanne B.; Hinger, Sarah; Zwick, Keren

Discrimination claims against longstanding rules invite the public and the courts to rethink the status quo and address overarching legal and social commitments to equality together with questions specific to the case at hand. Lawsuits seeking marriage rights for same-sex couples quintessentially illustrate this multilayered nature of law reform litigation, as the debates they provoke focus not only on the rights of same-sex couples but also on the meaning of marriage and the meaning of equality more generally. While few other than lawyers, judges, and perhaps some reporters actually read the equal protection and due process arguments that the presiding court will consider, many community members where marriage litigation is taking place become fully engaged in debating the equality and fundamental rights questions implicated by the legal claims.

This degree of popular attention certainly exists in Iowa, where talk of gay couples marrying took center stage even before a lawsuit was filed in the Iowa district court in 2005. The suit, which was brought by six lesbian and gay couples and eventually joined by some of the couples’ children, is one of many marriage equality suits to be filed in recent years and is the first to be filed in the Midwest.

Yet while the public debate may be wide-ranging, it typically misses the ways in which the lawsuit may have long-term consequences for a state’s equality jurisprudence that extend well beyond marriage. In Iowa, specifically, while Varnum v. Brien focuses directly on marriage equality, the case also engages an ongoing conversation among the state’s courts about how Iowa’s equality guarantees should be enforced.

This essay introduces an amicus brief filed with the Iowa Supreme Court on behalf of three Iowa constitutional law scholars that addresses
these broad questions about the future of Iowa equal protection law. In publishing the brief with the University of Iowa College of Law’s Journal of Gender, Race & Justice, we aim to show why, both in Iowa and around the country, courts would be better off embracing a single standard of equal protection review rather than the ossified and often ineffective federal tiered approach. By highlighting the brief’s implications for issues beyond marriage, we also aim to illustrate the point that law reform litigation, especially regarding contested social issues, often implicates not only the specific claim before the court but also other far-reaching questions about the jurisprudential status quo.

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The Journal of Gender, Race & Justice

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March 9, 2020