Yesterday the Iowa Supreme Court issued a unanimous opinion in Varnum v. Brien, holding that the equal protection provision of the Iowa Constitution requires the availability of same-sex civil marriage.
This is starting to look like a strong, and increasing, trend in favor of state recognition of same-sex marriage. Iowa joins the high courts of Massachusetts and Connecticut in mandating full marriage equality. (California, of course, had also done that, but its decision was overturned by Prop 8. Unlike California, Iowa's constitution is not absurdly easy to amend, so there is little chance of a similar amendment in this case.)
One thing I did not realize until just now is that we may soon see legislation (which was not mandated by courts) creating same-sex marriages. According to the San Francisco Chronicle, legislation is pending in Vermont, New Hampshire, and New Jersey. In Vermont it has passed through both houses, although the governor has threatened to veto it. In New Hampshire it has passed a house vote and is awaiting a vote by the senate. In New Jersey a bill has been introduced in the legislature; the governor has vowed to sign it. Legislative success would refute the complaints about judicial activism and a lack of democratic legitimacy. It would also further embolden courts to make constitutional decisions in favor of marriage equality.
The speed at which these decisions are now rolling out is also significant. The California Supreme Court decided its case less than a year ago; Connecticut decided its less than six months ago. With each case it becomes easier for the next state to cite it and follow in its stead. The fact that Iowa is widely regarded as the purple, mainstreamish leader of the heartland only strengthens the case. No one has ever accused Iowa of being full of pot-smoking hippies, or liberal, coastal elitists.
I wouldn't be surprised to see Minnesota follow, leaning heavily on its well-regarded neighbor of a supreme court. And what then? Wisconsin? No, sadly -- we run into a problem at that point. Wisconsin is one of 29 states with a state constitutional amendment banning same-sex marriage; this group is comprised mainly of conservative states, but in addition to Wisconsin also includes Colorado, Michigan, Ohio, and Oregon.
So let's say Vermont, New Hampshire, and New Jersey pass their legislation. The Minnesota judiciary follows Iowa. At least some out of a group including Rhode Island, New York, Maine, Washington, and Pennsylvania could be expected to follow, as well as possibly a surprise like New Mexico. Asking for all of that would be too much, but within a few years it's realistic to expect CT, MA, IA, NJ, NH, as well as, say, MN, RI, NY, and WA to have same-sex marriage. That's 9 states, 7 of them on the basis of judicial decisions. The figure could not go higher than 21 on state grounds, which is where the next interesting step comes into play: federal constitutional law. What happens then is harder to guess at -- it's plausible that federal or state judges will want to be the ones to kick off a U.S. Constitution-based right to marriage equality, but if it happens too soon, the U.S. Supreme Court will kill it (unless Justice Kennedy is convinced by the growing state trend and wants to be the one to really top it off -- he would obviously get that opinion).
In any event, this is great news out of Iowa. It's an important step toward legal equality for gay people in this country, and for now there is reason for optimism.