What Happens in Iowa if SCOTUS Overturns Same-Sex Marriage?
Despite the smiling photo I chose as this blog’s cover, there’s a serious discussion we need to have. As I’ve been campaigning across IA House District 33 over the past month, I have made it a priority to hear from members of the LGBTQ+ community. Like many other Iowans, but perhaps more acutely due to the recent elimination of health care, education, housing, and workplace protections for transgender Iowans, several in the community have expressed concern about the future of same-sex marriage. As a gay man myself, this issue also hits home for me, and I often feel like the only thing I can offer as consolation when asked about this issue is information. So, this blog—the first of what I expect to be many during this campaign–attempts to do just that.
What happens in Iowa if the Supreme Court of the United States (SCOTUS) overturns the landmark Obergefell v. Hodges decision that legalized same sex marriage nationwide? Let’s explore possible outcomes together.
Will SCOTUS Overturn Obergefell v. Hodges?
To answer this question, it is helpful to understand their original ruling and the constitutional rationale given for making the decision. Here are some excerpts provided by a case summary from the National Constitution Center and blog Justia about their key rationale behind the 2015 SCOTUS majority in their decision. The bolded statements are my summations:
Right to privacy and autonomy under the 14th Amendment - “The fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs.” “A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy.”
The right to marry is fundamental - “...the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.”
Protecting the right to marry protects children - “A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.” “The right to ‘marry, establish a home and bring up children’ is a central part of the liberty protected by the Due Process Clause.”
Marriage is foundational to the social order and restricting it to heterosexual couples is a violation of constitutional rights - “...marriage is a keystone of the Nation’s social order.” “States have contributed to the fundamental character of marriage by placing it at the center of many facets of the legal and social order.” “There is no difference between same- and opposite-sex couples with respect to this principle, yet same-sex couples are denied the constellation of benefits that the States have linked to marriage and are consigned to an instability many opposite-sex couples would find intolerable.”
SCOTUS is Considering Challenges to Obergefell v. Hodges.
This situation is evolving rapidly. Just this week, justices met in a closed-door conference to consider an appeal from a former county clerk in Kentucky who refused to issue same-sex marriage licenses. The case essentially asks the court to overturn a lower court ruling that she pay a $360,000 fine to a couple for refusing to issue their marriage license. This piece from NBC says they could make their decision on next steps with the case as early as Monday.
If Overturned, What Happens in Iowa?
I can’t speculate too much on the whims of 9 justices half a country away, but we can take a closer look inward to understand what protections LGBTQ+ Iowans have if Obergefell v. Hodges is overturned at the federal level. There are two key protections I often tell folks about: 1. The Iowa Supreme Court decision that legalized same-sex marriage in Iowa in 2009, and 2. The federal Respect for Marriage Act of 2022.
Varnum v. Brien Iowa Supreme Court Decision (2009)
Iowa became just the third state to legalize same-sex marriage in 2009 through a unanimous decision in Varnum v. Brien. The case challenged a 1998 Iowa statute that banned same-sex marriage and limited marriage to only be allowed between a man and a woman. The Iowa Supreme Court unanimously ruled that this ban in statute violated the equal protection clause of the Iowa Constitution. This last part is bolded because it’s crucial–the state supreme court found that a ban on same-sex marriage violated our state’s constitution. This means that any future moves to ban same-sex marriage–for example a ban passed by the Legislature after the overturning of Obergefell v. Hodges–would have to overcome this constitutional burden that exists in Iowa Supreme Court precedent. Not impossible, but that protection is at least one more layer and an opportunity to prevent an outright ban. However, the reasons for overturning Obergefell, such as using the reasoning that substantive due process isn’t a real right (as was done in the Dobbs abortion decision), may be different than challenging Varnum v. Brien under the equal protection clause of Iowa’s Constitution; this basically means that the rationale for challenging it may be based on different reasons and they likely wouldn’t stack up very neatly.
Respect for Marriage Act
President Joe Biden signed the Respect for Marriage Act in 2022. The bill does not create a new federal right to same-sex marriage because our constitutional framework doesn’t give that power to the federal government, it gives it to the states. However, the bill does ensure that same-sex marriages will be treated equally by the federal government and, most importantly for this piece, it requires states to recognize same-sex marriages that were legally performed in states that do recognize them. Essentially, this means that if Obergefell is overturned and conservative states such as Iowa ban them again, a same-sex marriage legally performed in Minnesota must legally be recognized by the State of Iowa. Here’s a more informative piece from NPR.
Can Our Legislature Pass a Same-Sex Marriage Ban?
Several years ago, if I were asked this question, I would have easily said no. However, given the recent removal of gender identity from the Iowa Civil Rights Act as a protected class, I am no longer confident in my answer. As a side note, this vote was one of the most motivating factors for me to jump into this race–I couldn’t sit idly by as loving, caring people in my community saw their rights stripped away with the stroke of Kim Reynolds’ pen. Senate File 418 passed 33-15 in the Iowa Senate and 60-36 in the Iowa House. Those massive majorities make me think that it is realistic that the Legislature could pass a same-sex marriage ban; the margin would likely be closer to 25-30 yes votes in the Iowa Senate and 50-55 votes in the Iowa House, but it is certainly a possibility. Lord knows our governor would probably sign it, too–I have no confidence that Kim Reynolds would choose this as a place to take a principled stance for justice. Either way, the Iowa Supreme Court would get the final say on any Legislature-passed ban.
Another route they could pursue is a constitutional amendment, but this requires passage in two consecutive legislative sessions before it would then be voted on via a ballot referendum and requires a supermajority to pass. It feels unlikely, even in this political moment, that upwards of 60% of Iowans would vote to ban same-sex marriage, but that would be a bruising fight, and I’m hopeful we never have to have it.
A Same-Sex Marriage Ban is Possible, but the Journey is Long
So, in short, yes the Legislature could pass a ban on same-sex marriage if SCOTUS overturns Obergefell v. Hodges. The likelihood of SCOTUS overturning Obergefell is impossible to know, but I felt pretty confident about Roe v. Wade before that happened, so I am hesitant to make sweeping predictions. Simultaneously, however, any ban passed by the Iowa Legislature would have to overcome the 2009 ruling in Varnum v. Brien that found protections for same-sex marriage in the Iowa Constitution, but the Supreme Court of Iowa has all new judges and our judicial nominating process has since been manipulated to give the governor more power. Further, if they succeeded in passing a ban and getting the state supreme court to overturn the Varnum decision, we would be left only with the protections of the Respect for Marriage Act. This means we’d all be driving to Illinois, Minnesota, or another state with same-sex marriage protections to get married and our state would have to recognize them, but not issue their own.
We Can Act Now
Our options here aren’t to just wait and see what happens. We need to elect more lawmakers to the Iowa Legislature who will stand up for same-sex marriage and end this troubling trend of stripping civil rights from the most vulnerable Iowans across the state. If elected, you can bet I’ll be leading on this charge as the only openly-gay man in the Iowa House Democratic Caucus and one of only two openly gay men in the entire statehouse.
