Opinion: On penguins and canaries

In 2009, a minor controversy in a mid-sized town in Indiana involving two homosexual penguins was resolved when the penguins were transferred to a zoo in Iowa, where same-sex marriage had just been legalized a few months prior, suggesting a more hospitable environment for the bonded male birds. This series of events is mostly fictitious — what is recounted above is the plot to the season two premiere of the television show Parks and Recreation — but it is true that Iowa, by a stunning unanimous decision by the state Supreme Court, legalized same-sex marriage in 2009, making Iowa the third state in the country to do so, and the first in the Midwest. It would take another six years for this right to become accessible across the entirety of the United States.

In the nearly 14 years since the guarantee of this right to all, surveys would suggest that Iowans have become comfortable with the notion of same-sex marriage, with those in support (72 percent) outnumbering those in opposition (23 percent). However, one would be forgiven if they distrusted those results, when eight Republican state representatives introduced two bills seeking to ban same-sex marriage in Iowa: HJR 8, which would have amended the state constitution to read “In accordance with the laws of nature and nature’s God, the state of Iowa recognizes the definition of marriage to be the solemnized union between one human biological male and one human biological female,” and HF 508, which would have repudiated the federal Respect for Marriage Act, which requires both the federal government and the states to universally recognize all same-sex and interracial marriages in the country.

Many narratives of the recent rightward lurch in Iowa’s politics use as goal posts the 14-point swing from President Barack Obama’s re-election victory in 2012 to former President Donald Trump’s stunning win in Iowa in 2016, which was repeated again in 2020, along with a Republican trifecta in the state government to go along with it. However, as of late I have been wondering if a focus only as far back as 2012 misses what could be seen as an inflection point on a set of electoral decisions usually so mundane it is relegated to the back of the ballot — the questions of whether to retain judges on the state Supreme Court in 2010.

Once appointed by the governor, Supreme Court judges in Iowa are “required to stand for a retention vote after a short initial period of service and every eight years thereafter,” and are able to remain on the bench so long as they passed the retention vote. As the Varnum decision which legalized same-sex marriage in Iowa was decided unanimously by the state Supreme Court, sooner or later all seven judges involved in the decision would eventually be up for retention. This happened for the first three in 2010, one each appointed by Republican Gov. Terry Branstad and Democratic governors Tom Vilsack and Chet Culver.

Absent a quick and easy way to amend the state constitution, social conservatives soon turned to ballot retention as an outlet to voice their disagreements. Backed with nearly $700,000 in out-of-state funds (equivalent to about $1 million dollars today adjusted for inflation), including the Southern Poverty Law Center-listed hate group American Family Association, a coalition against retention was raised, including former Rep. Steve King and “more than 200 churches” actively participating in opposition, to the point of even rising their IRS tax-exempt status. All of this was used to “wage a highly visible campaign” against retention.

On the other side, supporters of the judges’ retention included institutional support among fellow attorneys, such as through the state Bar Association, as well as from prominent individuals such as former U.S. Supreme Court Justice Sandra Day O’Connor and former (Republican) Gov. Robert Ray. They too, formed advocacy groups and spent hundreds of thousands of dollars on their own campaign for retention, albeit to a lesser extent than their opponents. Crucially, advocates for retention sidestepped defense of the Varnum decision or same-sex marriage, choosing to instead focus on the safer — and blander — messaging of support for Iowa’s legal system of judicial retention. Rather than facing the political threat head-on, the justices up for retention instead did not raise money or campaign for themselves.

Come Election Day 2010, all three Supreme Court judges up for retention lost by clear majorities — an outcome widely considered to be associated with opposition to the Court’s decision to legalize same-sex marriage, and still the only time this has happened since Iowa’s adoption of the retention system in 1962. Compare the results of this vote in Iowa to a 2012 vote across the northern state line in Minnesota, where a proposed amendment to the constitution to ban same-sex marriage in Minnesota was defeated in part by a campaign directly focused on community outreach, relating same-sex marriage to base values like love and commitment, and staying close to the ground with relational conversations among Minnesotans.

Two years later, Barack Obama’s re-election in Iowa in 2012, as well as the successful retention of another Justice who was part of the Varnum decision, perhaps wiped clean the taste of 2010 from progressives’ mouths. But then the elections of 2016 and 2020 happened, and the rest is now history. I do not think of the judges’ retention defeat as causative for the reactionary political situation Iowa finds itself in today, but rather as a signal of what was to come in future years — perhaps like how a canary in a coal mine does not cause toxic gases to build up in a mine, but merely dies from it first.

The Iowa Supreme Court’s decision to legalize same-sex marriage in 2009 is often a cornerstone in Iowa’s progressive mythos, along with stories like the state’s role in the Underground Railroad. However, to leave the story at that leaves the people’s reward for three of those judges — to throw them out as punishment. Indeed, many of these progressive stories have dark corollaries — one can just as easily point to the activities of the Ku Klux Klan in Iowa as well.

Although the proposed same-sex marriage ban was killed almost as soon as it was introduced on the House floor, having failed to make it past the first legislative “funnel,“ it should be seen as only one of the more outwardly egregious cases of legislative action in Iowa which together comprise a perverse “Triple Aim” of exclusion and discrimination among Republicans and their allies:

Indeed, in writing for Religion Dispatches back in 2012, historian of American religion Randall Balmer argued that a turn toward the religious right in his childhood home of Iowa has its basis in opposition to abortion among conservative evangelicals since the late 1970s, further amplified by organization into megachurches, support for home schooling, and opposition to gay rights.

The demonstrations which have taken place in Des Moines, and the walkouts which have happened in schools across Iowa have been encouraging, but neither of them belies the fact that Republicans still hold commanding majorities in both state legislative chambers, as well as the governor’s office — a situation which seems unlikely to change any time soon. If liberals and progressive are to have any chance of reversing the rightward reactionary lurch the state has veered in since 2017, it will be important to look critically at events in our recent history, rather than to simply fall back on comfortable narratives that only suggest what a more tolerant and accepting Iowa might look like, rather than show what the state has actually become.

Austin Wu is a Gazette editorial fellow. editorial@thegazette.com

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