So now that the Iowa Supreme Court has essentially legalized gay marriage, what’s next? Some right-wingers (like Iowa Congressman Steve King and William Duncan of the Marriage Law Foundation) are already promising to put a defense of marriage amendment in front of Iowa voters. But they have a long road ahead of them. Iowa law says that a constitutional ammendment must pass TWO consecutive sessions of the state legislature before it appears on a ballot. So the earliest one could see a DOMA on the ballot is 2011, but with Democrats in control of both houses and with both the House speaker and the Senate majority leader on record supporting the decision–there’s virtually no chance that such an amendment would even come up for a vote this session.
That leaves the right-wing with a daunting task: defeat enough Democrats to take control of both houses (Dems currently enjoy a 56-44 and 32-18 advantage), replace them with Christian right Republicans who are willing to champion a marriage amendement and peel off enough remaining Democrats (to offset any moderate GOP defectors) to squeeze through four rounds of yes votes. Only then will they even have the chance to put the issue in front of voters–sometime in 2013 or 2014 if all the stars align. Then, they still have to win that campaign in a political climate in which increasing numbers of voters support gay rights. Oh yeah, and the vote will take place after Iowans have witnessed 5-6 years of ho-hum same-sex nuptials of which the most radical, earth-shaking element is that one of the grooms is a 50-year old church organist named Otter Dreaming (one of the named appellees in the Iowa decision). As Ari Berman points out, Iowa isn’t exactly the hotbed of culture war antagonism–despite being square one for GOP presidential wrangling–so my strong hunch is that Mr. Dreaming’s marriage will endure at least any legal and political challenges.
So with the Prop 8 route effectively closed to them, what will Iowa’s right wing do? They might try to mount a campaign to recall the "activist judges" that voted for same-sex marriage (one tactic recently suggested by Christian right activists in California). Except here they run into political and formal roadblocks. First, the decision was unanimous–signed by all seven justices on the court, including two appointed by a Republican governor (Chief Justice Marsha Ternus and Justice Mark Cady). It will be difficult for the right to smear any one of them in particular. Second, the justices are appointed by the governor, now Democrat Chet Culver, who isn’t exactly a fan of gay marriage, but the idea that he’d refuse to reappoint any of these justices is laughable. Third, the Iowa right could try to impeach the justices as payback, but impeachment in Iowa requires a majority of the House and then conviction by 2/3 of the Senate. If the right has the votes to do that, they’d go after a DOMA in the first place.
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There is one small avenue open to the right: Iowa’s justices face the electorate in what’s called a "retention election" (when voters give an up or down on keeping the justice; there are no opposition candidates). Three justices–David Baker, Ternus and Michael Streit–face retention elections in 2010, and it’s possible the right will target them. But without a standard bearer, such a campaign could only take the form of a smear and would amount to political suicide in a national election year. Of course, that doesn’t mean the GOP won’t try it.
One thing to note briefly here is the positively Midwestern sturdiness of the Iowa Constitution and political system, which makes sure that impeachment and Constitutional amendments go through the democratic process. California: take note!
So, here’s my guess as to what the right can and will do. They’ll move to amend Iowa’s marriage law so that it requires in-state residency. Currently, Iowa (like California and unlike Massachusetts) does not have any such restriction (prompting claims that Iowa will become the Mecca of gay marriage). Of course, because of the court’s equal protection ruling, any such change will have to apply to both gay and straight couples, but the collateral benefit for the right would be in limiting the number of gay couples who can marry in Iowa and then sue in other states. But after thousands of out-of-state couples got married in CA and will likely stay married no matter how the CA Supreme Court rules on Prop 8’s broader legality–there’s not much use in raising this hurdle.
Then, there’s the broader marriage map. Iowa is smack in the middle of a cluster of Midwestern states that are "undecided" on same-sex marriage. Illinois, Minnesota, Indiana–these states neither have state constitutional amendments banning same-sex marriage nor have legalized same-sex marriage or civil unions. Neither Indiana nor Illinois are facing immediate DOMA votes. But earlier this month, the right put up a DOMA in the Minnesota state legislature, like it has in every recent year only to fail each year to get it passed (or even out of committee in some years). But Minnesota this year is also considering bills to legalize gay marriage, create civil unions and recognize same-sex marriages performed in other states. So, expect the Iowa decision to reverberate in Minnesota in what promises to be a muddy slate of conflicting legislation.
Finally, there’s the political calculus of how this will impact the Iowa GOP caucus in 2012. The ninja-like Mitt Romney is already out of the gate on this one, telling Chris Cillizza, "I believe marriage is a relationship between a man and a woman and the definition of marriage should be left to the people and not to activist courts." No word yet from Palin, Sanford, Jindal or Huckabee (who won Iowa in 2008). But it looks like Iowa 2012 could become a five way race to the top of homophobia hill, and since nationwide, voters of all persuasions rank gay marriage below the economy, war, terrorism, taxes and healthcare–whoever makes it there first will face a long drop later. That’s good news.
