Varnum v. Brien

763 N.W.2d 862

Katherine VARNUM, Patricia Hyde, Dawn Barbouroske, Jennifer Barbouroske, Jason Morgan, Charles Swaggerty, David Twombley, Lawrence Hoch, William M. Musser, Otter Dreaming, Ingrid Olson, and Reva Evans, Appellees, v. Timothy J. BRIEN, In His Official Capacities as the Polk County Recorder and Polk County Registrar, Appellant.

No. 07-1499.

Supreme Court of Iowa.

April 3, 2009.

Roger J. Kuhle and Michael B. O'Meara, Assistant County Attorneys, for appellant.

Dennis W. Johnson of Dorsey & Whitney, LLP, Des Moines, and Camilla B. Taylor and Kenneth D. Upton, Jr. of Lambda Legal Defense & Education Fund, Inc., Chicago, IL, for appellees.

John M. Murray of Murray & Murray, PLC, Storm Lake; Paul Benjamin Linton, Special Counsel, Thomas More Society, Northbrook, IL; Paul R. Devin, Supreme Advocate, Knights of Columbus, New Haven,

CT; and Thomas Brejcha, President and Chief Counsel, Thomas More Society, Chicago, IL, for amicus curiae Knights of Columbus.

Norman L. Springer, Jr. of McGinn McGinn Jennings & Springer, Council Bluffs, Mathew D. Staver, Stephen M. Crampton, Mary E. McAlister, and David M. Corry, Liberty Counsel, Lynchburg, VA, for amicus curiae Liberty Counsel.

Michael J. Manno, West Des Moines, for amici curiae Jews Offering New Alternatives to Homosexuality, Parents and Friends of Ex-Gays & Gays, and Evergreen International.

Jason M. Steffens of Simmons Perrine, PLC, Cedar Rapids, and Roger T. Severino of The Becket Fund for Religious Liberty, Washington, DC, for amicus curiae The Becket Fund for Religious Liberty.

Andrew J. Boettger of Hastings & Gartin, LLP, Ames, and Steven W. Fitschen, Barry C. Hodge, and Nathan A. Driscoll of The National Legal Foundation, Virginia Beach, VA, for amicus curiae The National Legal Foundation.

David James Hanson of Hofmeyer & Hanson, P.C., Fayette, and Joshua K. Baker of Institute for Marriage and Public Policy, Manassas, VA, for amici curiae James Q. Wilson, et al., Legal and Family Scholars.

Timm W. Reid of Galligan, Reid & Galligan, P.C. and Iowa Liberty and Justice Center, Des Moines, and Benjamin W. Bull, Brian W. Raum and James A. Campbell of Alliance Defense Fund, Scottsdale, AZ, for amicus curiae Iowa Legislators.

Robert R. Anderson, Vinton, Stuart J. Roth of American Center for Law & Justice, Washington, DC, Laura B. Hernandez of The American Center for Law & Justice, Virginia Beach, VA, and Vincent P. McCarthy of American Center for Law & Justice NE, Litchfield, CT, for amicus curiae The American Center for Law & Justice.

Daniel DenBeste of Elderkin & Pirnie, PLC, Cedar Rapids, and Monte Neil Stewart of Marriage Law Foundation, Orem, UT, for amici curiae United Families International, Family Watch International, and Family Leader Foundation.

Michael A. Giudicessi, Christian S. Walker, Karin A. Johnson, and Nicole Nayima of Faegre & Benson, LLP, Des Moines; Michael A. Ponto of Faegre & Benson, LLP, Minneapolis, MN; and Evan Wolfson, Executive Director of Freedom to Marry, New York City, for amicus curiae Freedom to Marry.

Randall C. Wilson of Iowa Civil Liberties Union, Des Moines, and John A. Knight of American Civil Liberties Union Foundation, Chicago, IL, for amici curiae The Bazelon Center for Mental Health Law, Iowa Protection and Advocacy Services, Inc., National Council on Independent Living, and the National Senior Citizens Law Center.

David H. Goldman, Brent A. Cashatt, and Kodi A. Petersen of Babich, Goldman, Cashatt & Renzo, P.C., Des Moines, and Suzanne B. Goldberg, Clinical Professor of Law and Director of Sexuality and Gender Law Clinic Columbia Law School, New York City, for amici curiae Robert C. Hunter, Jean C. Love, and Maura Strassberg, Iowa Constitutional Law Scholars.

Gordon R. Fischer of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, and Hugh S. Balsam and Kara J. Bruce of Locke Lord Bissell & Liddell, LLP, Chicago, IL, for amici curiae Certain Current and Former Iowa Elected Officials.

Ivan T. Webber of Ahlers & Cooney, P.C., Des Moines, and Tobias Barrington Wolff of University of Pennsylvania Law School, Philadelphia, PA, for amici curiae

OneIowa; The Iowa Chapters of Parents, Families and Friends of Lesbians and Gays; The Equal Justice Society; The National Black Justice Coalition; The Mexican American Legal Defense and Educational Fund; The Zuna Institute; The Asian American Justice Center; The Southern Poverty Law Center; People for the American Way Foundation; The Asian American Legal Defense and Education Fund; and The Immigrants' Rights Program of the American Friends Service Committee.

Harvey L. Harrison of Harrison & Dietz-Kilen, P.L.C., Des Moines, and Mary Bonauto, Bennett H. Klein, and Janson Wu of Gay & Lesbian Advocates & Defenders, Boston, MA, for amici curiae Massequality, Massachusetts Gay and Lesbian Political Caucus, Gay & Lesbian Advocates & Defenders, various Massachusetts Senators and Representatives, Equality Federation, Garden State Equality, Love Makes a Family, Vermont Freedom to Marry Task Force, Human Rights Campaign, Human Rights Campaign Foundation, and National Gay and Lesbian Task Force.

Catherine C. Dietz-Kilen of Harrison & Dietz-Kilen, P.L.C., Des Moines, for amicus curiae Iowa and National Faith Leaders, Communities and Scholars.

Charles E. Gribble and Matthew T. Oetker of Parrish, Kruidenier, Dunn, Boles, Gribble, Cook, Parrish, Gentry & Fisher, L.L.P., Des Moines, and Aderson B. Francois, Caroline Boucher, Amy E. Hatcher, and Damien G. Scott of Civil Rights Clinic, Howard University School of Law, for amicus curiae Howard University School of Law Civil Rights Clinic.

Mark E. Schantz of College of Law University of Iowa, Iowa City, and Stephen Sanders and Jeffrey W. Sarles of Mayer Brown, LLP, Chicago, IL, for amici curiae Iowa Professors of Law and History.

Jim Quilty of Crawford & Quilty, Des Moines, and Vivian L. Polak, Jonathan A. Damon, Spencer R. Wood, Suman Chakraborty and Emily A. Gianquinto of Dewey & LeBoeuf, LLP, New York City, for amici curiae The National Association of Social Workers, The National Association of Social Workers-Iowa Chapter, Youth and Shelter Services, and Middleton Center for Children's Rights at Drake University Law School.

Roxanne Barton Conlin of Roxanne Conlin & Associates, P.C., Des Moines, Jennifer K. Brown and Julie F. Kay of Legal Momentum, New York City, and Laura W. Brill, Elizabeth L. Rosenblatt, and Richard M. Simon of Irell & Manella, Los Angeles, CA, for amici curiae Women's Rights Organizations.

Joseph M. Barron, Des Moines; Richard T. Greenberg of McGuirewoods, LLP, Chicago, IL; and Shannon Price Minter of National Center for Lesbian Rights, Washington, DC, for amici curiae Professors of Family Law and Jurisprudence.

Amy L. Reasner of Lynch Dallas, P.C., Cedar Rapids, and Carmine D. Boccuzzi of Cleary Gottlieb Steen & Hamilton, LLP, New York City, for amicus curiae Social Science Academics and Associations.

Thomas A. Newkirk and Paige E. Fiedler of Fiedler & Newkirk, PLC, Urbandale; Paul M. Smith, William M. Hohengarten, and Anjan Choudhury of Jenner & Block, LLP, Washington, DC, and Nathalie F.P. Gilfoyle of American Psychological Association, Washington, DC, for amicus curiae The American Psychological Association.

Daniel L. Bray of Bray & Klockau, P.L.C., Iowa City, and Diana E. Richmond of Sideman & Bancroft, LLP, San Francisco, CA, for amici curiae The American Academy of Matrimonial Lawyers, Joan

and Lyle Middleton Center for Children's Rights, Drake Legal Clinic, and Pediatricians and Family Physicians.

CADY, Justice.

In this case, we must decide if our state statute limiting civil marriage to a union between a man and a woman violates the Iowa Constitution, as the district court ruled. On our review, we hold the Iowa marriage statute violates the equal protection clause of the Iowa Constitution. Therefore, we affirm the decision of the district court.

I. Background Facts and Proceedings.

This lawsuit is a civil rights action by twelve individuals who reside in six communities across Iowa. Like most Iowans, they are responsible, caring, and productive individuals. They maintain important jobs, or are retired, and are contributing, benevolent members of their communities. They include a nurse, business manager, insurance analyst, bank agent, stay-at-home parent, church organist and piano teacher, museum director, federal employee, social worker, teacher, and two retired teachers. Like many Iowans, some have children and others hope to have children. Some are foster parents. Like all Iowans, they prize their liberties and live within the borders of this state with the expectation that their rights will be maintained and protected—a belief embraced by our state motto.¹

Despite the commonality shared with other Iowans, the twelve plaintiffs are different from most in one way. They are sexually and romantically attracted to members of their own sex. The twelve plaintiffs comprise six same-sex couples who live in committed relationships. Each maintains a hope of getting married one day, an aspiration shared by many throughout Iowa.

Unlike opposite-sex couples in Iowa, same-sex couples are not permitted to marry in Iowa. The Iowa legislature amended the marriage statute in 1998 to define marriage as a union between only a man and a woman.² Despite this law, the six same-sex couples in this litigation asked the Polk County recorder to issue marriage licenses to them. The recorder, following the law, refused to issue the licenses, and the six couples have been unable to be married in this state. Except for the statutory restriction that defines marriage as a union between a man and a woman, the twelve plaintiffs met the legal requirements to marry in Iowa.

As other Iowans have done in the past when faced with the enforcement of a law that prohibits them from engaging in an activity or achieving a status enjoyed by other Iowans, the twelve plaintiffs turned to the courts to challenge the...