Academic journal article The Journal of Gender, Race and Justice

Equality Opportunity: Marriage Litigation and Iowa's Equal Protection Law

Academic journal article The Journal of Gender, Race and Justice

Equality Opportunity: Marriage Litigation and Iowa's Equal Protection Law

Article excerpt

Discrimination claims against longstanding rules invite the public and the courts to rethink the status quo and address overarching legal and social commitments to equality together with questions specific to the case at hand.' Lawsuits seeking marriage rights for same-sex couples quintessentially illustrate this multilayered nature of law reform litigation, as the debates they provoke focus not only on the rights of same-sex couples but also on the meaning of marriage and the meaning of equality more generally. While few other than lawyers, judges, and perhaps some reporters actually read the equal protection and due process arguments that the presiding court will consider, many community members where marriage litigation is taking place become fully engaged in debating the equality and fundamental rights questions implicated by the legal claims.2

This degree of popular attention certainly exists in Iowa, where talk of gay couples marrying took center stage even before a lawsuit was filed in the Iowa district court in 2005.3 The suit, which was brought by six lesbian and gay couples and eventually joined by some of the couples' children,4 is one of many marriage equality suits to be filed in recent years5 and is the first to be filed in the Midwest.

Yet while the public debate may be wide-ranging, it typically misses the ways in which the lawsuit may have long-term consequences for a state's equality jurisprudence that extend well beyond marriage.6 In Iowa, specifically, while Varnum v. Brien focuses directly on marriage equality, the case also engages an ongoing conversation among the state's courts about how Iowa's equality guarantees should be enforced.

This essay introduces an amicus brief filed with the Iowa Supreme Court on behalf of three Iowa constitutional law scholars that addresses these broad questions about the future of Iowa equal protection law.7 In publishing the brief with the University of Iowa College of Law's Journal of Gender, Race & Justice, we aim to show why, both in Iowa and around the country, courts would be better off embracing a single standard of equal protection review rather than the ossified and often ineffective federal tiered approach.8 By highlighting the briefs implications for issues beyond marriage, we also aim to illustrate the point that law reform litigation, especially regarding contested social issues, often implicates not only the specific claim before the court but also other far-reaching questions about the jurisprudential status quo.

The question that is the briefs focus - whether the federal approach to equal protection review is the ideal means of enforcing the equality guarantee - has been the subject of debate for some time, not only in Iowa but also in other states, in the academic literature, and in the United States Supreme Court.9 As every law student leams, the U.S. Supreme Court has evolved a tiered framework for equal protection claims.10 Through this framework, courts typically impose rigorous scrutiny on a small set of classifications (race, alienage, national origin, sex, and non-marital parentage).11 The result of this stratified approach is that although suspect and quasi-suspect classifications receive careful review, many other forms of government line-drawing receive little more than a judicial rubber stamp. So, for example, courts have sustained distinctions based on age,12 mental capacity,13 sexual orientation,14 and other characteristics over strong dissents that the distinctions are either arbitrary or bias-infected.15

Even in its early years, the tiered framework drew disagreement from Justice Marshall, who condemned the Court for adhering to a "rigid two-tier model" after it had "apparently lost interest in recognizing further 'fundamentar rights and 'suspect' classes."16 Then-Justice Rehnquist also disparaged the approach, describing it as "a series of conclusions unsupported by any central guiding principle."17 Academic commentators have criticized the tiers for functioning like barriers to equality18 and creating a situation in which cases subject to rational basis review are "dismissed out of hand. …

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