Iowa's Same-Sex Marriage Ruling and Judicial Power

By Scott Lemieux

Earlier this week, the Iowa Supreme Court held in Varnum v. Brien that the state's denial of marriage rights to same-sex couples violated the state constitution.   This decision has, of course, generated hope among supporters of same-sex marriage rights and fear from opponents.   It is worth considering, however, that the power of courts to generate social change can sometimes be overstated.   Power and Purpose includes this data about school desegregation the Deep South after Brown v. Board of Education from Gerald Rosenberg's classic The Hollow Hope:

The Supreme Court's opinion had almost no effect on segregation in the Deep South before the Civil Rights Act was passed in 1964. Is it possible that the Iowa court's ruling will have similarly limited impact?

Probably not. As Rosenberg's data also indicates, Brown did have some impact when it came to desegregating border states where opposition to integrated schools was much less intense. His data indicates, in other words, not that the Court is powerless but that the Court needs either some collaborators in the political branches, or in some cases public officials who will not obstruct enforcement of a court's directives. The Iowa court will need collaboration, in that both houses of the Iowa legislature can vote in consecutive terms on a constitutional amendment that would go to a public referendum. Legislative leaders, however, are already indicating that such an amendment will be not on the table in the near future. It is therefore unlikely that the Court's decision will be overturned, and almost certain that it could not happen until at least 2014. (Massachusetts, although a somewhat more liberal state, could not get even 25% of its legislators to approve a similar amendment being put to a vote.)

The decision is unlikely to create an immediate wave of support for same-sex marriage, but it is also likely to confer such rights on Iowa's citizens for the foreseeable future. In the right institutional circumstances, courts can have (for better or worse) a significant policy impact.

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