With marriage equality sweeping the land and the U.S Supreme Court set to decide the issue later this summer, Iowa's 2009 same-sex marriage decision, Varnum v. Brien, might seem long-forgotten.
But Tom Witosky and Marc Hansen felt that the first Midwest state to allow same-sex marriage had a story to tell. Their account of the landmark Iowa Supreme Court decision, Equal Before The Law, starts back when DOMA was the order of the day, touches on Iowa's maverick judicial historyincluding ruling in a case that presupposed Brown vs. Board of Education by decadesand fleshes out many of the Varnum decisions' key players, from McKinley BarbouRoske, the inquisitive daughter of a lesbian couple wondering why her parents aren't married, to Mark Cady, diligent Supreme Court justice in charge of writing the words that would change how Iowans viewed marriage forever.
The co-writers, who share Chicago-area and sportswriting backgrounds, met while at the Des Moines Register. Witosky remembered hearing the news and immediately realizing its potential. "When I heard it was a unanimous decision, I was thinking about the Brown vs. Board of Education decision," he said. "Earl Warren had worked really, really hard to get that unanimous decision because he thought the issue was so important. And immediately I began to wonder, was that sort of persuasion that went on for the Iowa Supreme Court? And I wanted to tell that story."
Both men said that convincing the justices to talk initially proved difficult. "They just turned me down flat," Witosky said. Luckily, both Witosky and Hansen had connections to Supreme Court justice Mark Cady. "Without [Cady], I don't think this would have happened," Hansen said. "I don't think he had that many fears because he knew us, but I think it was a matter of convincing some of the other justices that they could trust us and that we'd do a thorough job."
The men did their interviews together and split up the writing according to their strengths. Witosky wrote about the political debates prior to Varnum's passage and Iowa's judicial history. Hansen, who Witosky called "one of the best writers I've ever read," profiled the plaintiffs and justices. As they worked, Witosky said, "we began to understand that it was a narrative story that just sort of stunned us almost every time we went to talk to somebody."
Cady's decision itself was a centerpiece. "I found it to be a really interesting piece of legal writing," Witosky said. "He took a completely different approach. There's one thing Cady made sure that people understandwe were talking about people who had a history of discrimination and an immutable characteristic, were politically powerless, but that characteristic did not them from contributing to society."
The pair began working on the book in 2012. "Public opinion was changing, but it hadn't changed to the extent that it has now," Witosky said. "The Windsor case I think wasif any- one was looking for the sea change or tipping point, that was probably it. The Iowa decision made the conversation possible."
"The evolution of thought was pretty amazing to us as we went along," Hansen added. "It was just one thing after another. We talked to people who were pretty staunch social conservatives and changed their minds."
"They may not approve of it, but I think the vast majority of people in all the states will accept it for what it is," Witosky predicted about marriage equality's future. "That might mean a lot of people don't approve, but they're willing to accept it as something that is part of our society and as something that really doesn't have any effect on their lives."
Hansen recalled an interview with an Iowa judge who told the pair, " 'I've never got a good answer from anyone who was against marriage equality when I ask the question, how does this harm you?'"
Back in 2010, three of the justices involved in Varnum were recalled by a divided public voting against them. But as evidence of shifting opinions, Witosky cited a recent Des Moines Register poll about Iowan attitudes towards same-sex marriage. "About 30 percent-35 percent of the population of Iowa was still against allowing same-sex couples to marry," Witosky said. "Another 30 percent-35 percent supported [same-sex marriage] very strongly. And then there was another 30 percent who said they don't care, that it has really nothing to do with them and their lives. That's one of the lessons that Iowa has learned over the last six years. People have argued about it. There have been political consequences to it. But when people discuss it amongst themselves, at coffee shops or barber shops or wherever, they come to a conclusionthey recognize that life goes on, that nothing terrible happens."