Linda Kerber: The Historians' Amicus Brief in the Iowa Gay Marriage Case





[Linda Kerber is a professor of history at the University of Iowa.]

As the justices of the Iowa Supreme Court considered Varnum v. Brien, they had before them the trial record in the Iowa District Court for Polk County, the briefs submitted by the lawyers for both sides and two dozen "friend of the court," or amicus, briefs offering information that judges might find useful in shaping their opinion.

One of those briefs came from 23 professors of law and history based in Iowa's colleges and universities. It was drafted with the assistance of Stephen Sanders of Chicago. I was one of the signers.

The filing of a historians' amicus brief in same-sex marriage cases has been a common practice ever since 2003, when Supreme Judicial Court of Massachusetts Justice Margaret Marshall's opinion in Goodridge v. Department of Public Health drew on ingredients of one developed by historians 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. They also emphasized the 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 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 offered the Iowa Supreme Court evidence that our state 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 1851, the Iowa 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.

• In 1868, the Iowa Supreme Court ruled that segregated schools are a denial of equal protection of the laws.

• In 1873, nearly a century before the U.S. Supreme Court made a similar ruling in 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, Ill., deserves to be much better known.

• And in 1949, the Iowa Supreme Court again insisted 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 that had refused to serve black customers.

Yesterday'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.

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