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The Written Word: Reflections on Composing a Major Civil Rights Decision

November 15, 2013
| Goodridge Special Edition

Streit_Michael2by Michael J. Streit

Note from the Editors: In 2009, the Iowa Supreme Court in Varnum v. Brien held that Iowa’s statute limiting marriage to a man and a woman violates the equal protection clause of the Iowa Constitution.  In 2010, three of the judges responsible for the decision were defeated in retention elections, including Justice Michael J. Streit, the author of this article.

The Iowa Supreme Court decided its marriage equality case, Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009),, six years after the decision in Goodridge v. Department of Public Health.  We were thus not the first court to assess the constitutional question of marriage equality.  Nonetheless, we were in many ways writing on a clean slate.  It was very important to us that our opinion be not only analytically sound, but make emotional sense to its readers as well.  The court sought to talk directly to the minds and hearts of Iowa’s citizens.  Communication on an emotional level was important for our message – heaven knows we saw what detractors did after Goodridge (and what we later saw happen in our own retention election).

Although the Varnum opinion is analytical in every legal sense, we sought to engage our readers with its analytical process and with the issue of marriage equality.  In this sense, the decision bears some similarity to the Goodridge decision.  Even though the Goodridge court clearly approached its case with a systematic and precise method of analysis, Justice Sosman’s dissent complained about its emotional underpinnings, decrying the use of “emotion-laden … rhetoric” as a “means of heightening the degree of scrutiny to be applied.”  Both courts realized that to have credibility with the citizens of their states, the decisions had to speak in a way they could understand.  As we wrote our decision (Justice Mark Cady was the primary author – having drawn the case out of a hat) we were always asking ourselves: ”Who is our audience?”  As we did this, we were pulled back – or dragged back – from our instincts to write more “legal.”  The style and grace provided by Justice Cady spoke directly to everyday people – those with or without a law degree.  This directness can be seen towards the end of the decision:

In the final analysis, we give respect to the views of all Iowans on the issue of same-sex marriage—religious or otherwise—by giving respect to our constitutional principles.  …  The sanctity of all religious marriages celebrated in the future will have the same meaning as those celebrated in the past. The only difference is civil marriage will now take on a new meaning that reflects a more complete understanding of equal protection of the law. This result is what our constitution requires.

Varnum, 763 N.W.2d at 905.

Indeed, one of the most striking aspects of Varnum is the powerful and robust language used to talk about our constitutional heritage and the historical context of the decision.  In California, Chief Justice Ronald M. George referred to a number of “stirring passages” from the Iowa case used by a dissenter.  Strauss v. Horton, 207 P.3d 48, 114 (Cal. 2009).  Justice Moreno’s first words in his dissent quoted the Iowa court:  “[T]he ‘absolute equality of all’ persons before the law [is] ‘the very foundation principle of our government.’ ”  Id. at 129, quoting Varnum, 763 N.W.2d at 877.  In tracing our history, for example, we pointed out that in the first reported case of the Iowa court in 1839, “we refused to treat a human being as property to enforce a contract for slavery” and held our laws must extend equal protection to all people.  We began the opinion by talking about Iowans’ heritage, constitution, and how the court approaches these types of legal questions.  We used the pronoun “we” while discussing the court’s prior decisions or the court’s reasoning on certain legal principles.  “We” signaled to our readers that the recognition of civil rights is a collective effort.  (Ironically, detractors of the opinion subsequently criticized our use of “we” as an imperial gesture and as an example of judges “imposing” our law on the people.)

We deliberately wrote in an inclusionary way, asking our readers to join in our legal analysis, travelling down a road well-traveled, but new to most:

In fulfilling this mandate under the Iowa Constitution, we look to the past and to precedent. We look backwards, not because citizens’ rights are constrained to those previously recognized, but because historical constitutional principles provide the framework to define our future as we confront the challenges of today.

Varnum, 763 N.W.2d at 876.

We also carefully laid out the rich Iowa history of judicial review, civil rights, and the nature of the constitution authority under the United States and Iowa constitutions.  This history included rulings dealing with slaves in the Iowa territory, segregated schools, women practicing law, and segregated lunch counters.  The Court did not always shine, having failed in 1910 to strike down a statute upholding a law that effectively denied women pharmacists the right to sell alcohol, stating:

discrimination between the sexes is neither arbitrary nor capricious, and the fact that in many instances individuals of one sex are in general better fitted than those of the other sex for a given occupation or business is one of such common knowledge and observation that the Legislature may properly recognize it in enacting regulations. (emphasis added)

In re Carragher, 149 Iowa 225, 229-30 (1910).

After acknowledging our lapse, we went on to say:

The framers of the Iowa Constitution knew, as did the drafters of the United States Constitution, that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” and as our constitution “endures, persons in every generation can invoke its principles in their own search for greater freedom” and equality.

Varnum, 763 N.W.2d at 876, quoting from Lawrence v. Texas, 539 U.S. 558, 578-79 (2003).

The result of our careful attention to language resulted in a decision that many consider a sine qua non or fulcrum in equal rights.  The decision has captured the minds and emotions of people who have read or thought about marriage equality.  A few weeks after our court decided Varnum, I walked into my dentist’s office for an appointment.  The receptionist effusively declared that she read our decision and liked it … and it was so good, she “read it twice.”   At the time I asked myself what caused this response to a decision issued by a state supreme court in a controversial case.  The logic and quiet elegance of the decision spoke volumes of the essential measure of constitutional protections for those in our society who are unique or without a voice.  It also seemingly connected to those who read the decision.

Credibility is the stock-in-trade of the courts and is dependent on effective communication.  The written word is our primary means of communication.  As politics swirl around our courts, with many of our detractors speaking to ignorance and prejudice, the written word is the most accurate means of discussing highly-charged legal issues – especially those with nuance.  Our courts seldom engage the public in a discussion about the essence of cases or their meanings – and have left it to political forces to shape and define the debate of the court’s work.  Judicial ethics restrict a judge’s ability to discuss a pending case – even if decided.  We as judges and lawyers have always retreated to the maxim that “The decision speaks for itself.”  If it does – then our courts must strive to have the written word speak effectively.  The way we write, to be effective, has to be more focused and immediate.  Tough cases need to be less nuanced in the sense that our citizens demand we tell them now and we tell them clearly – like you would be telling your mother over Saturday coffee.

This case and Iowa’s history reflect that the Iowa Supreme Court has, “for the most part, been at the forefront in recognizing individuals’ civil rights.  The path we have taken as a state has not been by accident, but has been navigated with the compass of equality firmly in hand, constructed with a pointer balanced carefully on the pivot of equal protection.”  Varnum, 763 N.W.2d at 877 n.4.   With such a compass, the decision wrote itself.

Former Justice Michael Streit served Iowa as a trial court judge and an Iowa Supreme Court Justice for over 27 years.  He received the John F. Kennedy Profiles in Courage award for his role in the Iowa Supreme Court decision recognizing marriage equality.  Justice Streit practices in Des Moines and lectures in arbitration, mediation, ethics, contracts, judicial independence, and teaches at Drake University Law.