Contextualizing Varnum v. Brien: A "Moment" in History

I. INTRODUCTIONVarnum v. B rieri1 is the last case in a line of state constitutional law challenges in what has been a a fifteen-year campaign by LGBT2 public interest lawyers seeking legal recognition for same-sex couples. While the litigation may be over for now,3 the larger battle is just beginning. The Iowa Supreme Court's ruling in Varnum will play a central role in this future battle. It stands as part of a major "moment" in the modern history of recognizing equal marriage rights for same-sex couples. By "moment," I do not mean a single point in time, but a prolonged period of a year or so over which a substantial shift occurs.I see three key moments in this modern battle for marriage equality. The first distinct moment is the period of time in 1996 surrounding the Hawaii litigation4 and the incipient backlash evidenced by the enactment of various "Defense of Marriage" laws, both at the federal and state level. The second moment occurred in 2003-2004. In that period of time, marriages for lesbian and gay partners became available in Massachusetts,5 and a handful of mayors around the country (as well as some county commissioners)authorized the issuance of marriage licenses to same-sex couples/' As a result, the national news media piped footage of the marriage ceremonies of same-sex couples into American households. Many people saw the face of the LGBT community and found it different from the images on prior television coverage of LGBT events. The third moment occurred in 20082009, when legal marriages between same-sex partners became available outside of Massachusetts. The Iowa case is part of this third moment and, in my view, has played a pivotal role in determining the future. This article will provide additional texture for these three "moments" and explain briefly where this current moment is likely to lead.II. BACKGROUND: EARLY HISTORY OF MARRIAGE LITIGATION IN THE LESBIAN AND GAY CIVIL RIGHTS MOVEMENTIn the early days of gay liberation, following the Stonewall Riots in June of 1969,7 marriage was not high on the list of most lesbian and gay rights activists. The women's movement had battled to diminish the importance of marriage, arguing that women should be judged on their abilities as individuals and not in their roles as wife and mother.8 Radical feminists denounced the institution of marriage as a patriarchal bond from which women should free themselves.9 Gay liberation activists took similar positions in the early 1970s, typically calling for the abolition of marriage altogether,10 which would not only undo the harms to women and men trapped by the gendered roles that marriage had supported, but would also produce a certain measure of equality for everyone.Nonetheless, individual gay and lesbian couples, heartened by the political activism for gay equality that followed Stonewall, challenged marriage laws in several states. Four such challenges produced reported decisions." Plaintiffs relied primarily on equality and due process arguments, arguing that the statutes discriminated on the basis of sex and deprived the plaintiffs of the fundamental right of privacy, or more specifically, the right to marry.12 Similar arguments had succeeded before the United States Supreme Court in Loving v. Virginia, the case that struck down Virginia's ban on interracial marriages.13 To many, it seemed a logical step to argue that if a state could not restrict the race of one's chosen spouse, it similarly could not restrict the gender.14 The courts hearing these arguments, however, thought otherwise, concluding, in the words of the Supreme Court of Kentucky, that "no constitutional issue is involved."15The first reported case, Baker v. Nelson, was litigated in Minnesota.16 The plaintiffs, Jack Baker and Mike McConnell, argued that the Minnesota marriage statute, which provided that "marriage ... is a civil contract, to which the consent of the parties, capable in law of contracting, is essential,"17 did not by its terms restrict marriage to a man and a woman. …