The Marriage Broker
The fight for gay marriage in Iowa changed the nation's legal landscape--and one lawyer's worldview.
The American Lawyer
By Vivia Chen
July 01, 2009
Dennis Johnson was sitting in his Des Moines office in 2003 when he got a call from Lambda Legal, asking him to represent six same-sex couples in challenging Iowa's gay marriage prohibition. A litigation partner at Dorsey & Whitney at the time (he's now of counsel) and a former solicitor general of Iowa, Johnson says the call came "out of the blue; I was surprised." Not only was gay marriage not on his radar screen ("I had no prior experience with gay rights or any activist movement," he says), Johnson's pro bono history had been "nothing big—I had not handled any pro bono lawsuit."
Two days later, after consulting with his partners, Johnson signed on as the pro bono counsel in Varnum v. Brien . What started as just another legal matter on Johnson's plate ended up being the case of his lifetime and a watershed moment for the gay rights movement. This spring, the Iowa Supreme Court overturned a state law that limited marriage to a man and a woman. As a result, gay rights activists nationwide hope that similar restrictions in other states will eventually fall.
"The fact that this is an Iowa decision is extremely significant," says Johnson. "We're perceived as a conservative farm state. The message will be that [same-sex marriage] is no longer some fringe issue that can only play out on the East Coast or California." (Just months before the Iowa decision, California voters approved Proposition 8, which amended that state's constitution to prohibit gay marriage; on May 26, the California Supreme Court upheld the ban. Munger, Tolles & Olson, solo practitioner David Codell, and Heller Erhman served as pro bono counsel in gay groups' challenge to the measure.)
Iowa was picked as a test case because the state "has been on the forefront of equality," says Jon Davidson, the legal director of Lambda. "Decades before Brown v. Board of Education , Iowa had desegregated schools; it was also the first state to allow women to become lawyers, and the first to allow married women to own property." Camilla Taylor, a senior staff lawyer at Lambda and a key strategist on the case, says that Lambda chose Johnson because "he's extremely well respected."
Despite Iowa's progressive history, winning the case was hardly a sure bet. "There had never been a case like this in front of the Iowa Supreme Court before, so there was no way we could be confident of the outcome," Taylor says.
Lambda credits Johnson with making a big contribution to the win, particularly in an emotional oral argument before the state supreme court in December. When the justices asked Johnson why same-sex couples should want the right to marry instead of access to civil union arrangements, he was ready: "I said that we all grew up in a society where marriage is regarded as the ultimate commitment," he says, and that denying that right to some members would make them second-class citizens. Then he got personal: "I told them that I'm married to a woman I dearly love, and if we were told that we could only have a civil union, that would bother us deeply. It would be sending the message that some families are not as deserving as others."
The crux of Johnson's argument was that limiting civil marriage to a man and a woman violates the equal protection clause of the Iowa constitution. To drive home his point, Johnson says, he turned the tables on heterosexuals: "I asked how they would feel, if their rights were taken away?"
Johnson's argument had its intended effect. "There was not a dry eye in the audience," Taylor says. Johnson also says he noticed that the justices suddenly fell silent. The justices were "very aggressive" during most of the hearing, Johnson says, but once he finished his argument, "they had a different look on their faces." Although he had prepared other points to argue, he says, "I knew it was over. No one said anything. There were no questions after [the argument]."
The result was a unanimous 69-page opinion from a Republican-dominated court that didn't hedge in its support of gay marriage: "We are firmly convinced the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective," the decision said. "The legislature has excluded a historically disfavored class of persons from a supremely important civil institution without a constitutionally sufficient justification."
Though he calls the opinion "extremely powerful," Johnson, a lifelong Iowan, plays down his role in the victory. He gives primary credit to Taylor, whom he calls "the architect behind this lawsuit." He says that Taylor developed the strategy and wrote the "outstanding" briefs. "I just made some comments now and then," he says.
But that's not the way Lambda sees it. "We could not have done it without him. He was our Iowa brain," says Davidson. "He brought insight into Iowa law and a tradition of support for civil rights." Adds Taylor: "He's a very self-effacing person. He contributed at every stage; we owe him a great debt." His oral argument, she adds, "may have been determinative" to the outcome—"it was that powerful." Johnson, 60, says that the experience of championing gay marriage has been transforming for him personally. "It was the most meaningful and satisfying case I've handled," he says. "When I first took it, it was like any other case. But as I got into it and understood the plight of gays and lesbians, I was really touched. . . . They are just like any other family with kids, and I thought I had to win this case."
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