Mark Cady was right at home at the piano and was an occasional singer, too, maybe best known among family and friends for his rendition of “Easter Parade” each New Year’s Eve — a whimsical tidbit that widened the eyes of some people at his funeral last week.
But it was no surprise the music at his funeral was outstanding. The voices of the Des Moines Gay Men’s Chorus filled Drake University’s Knapp Center during a celebration of life for the 66-year-old chief justice of the Iowa Supreme Court.
The symbolism was unmistakable.
Cady spent four decades as a judge, first in Fort Dodge, then on the Court of Appeals and finally, for the past 21 years, on the Supreme Court. His best-known piece of work — one that will be analyzed and discussed 100 years from now — was the Supreme Court’s unanimous decision in 2009 giving gay couples the right to marry.
The decision in Varnum v. Brien produced controversy as soon as it was handed down. Opponents criticized it for disregarding the views of many people who think homosexuality is a sin and has no place in marriage. A year later, three justices would be kicked off the court by angry voters.
But the case also attracted praise and nationwide attention for Iowa’s important role in the past 180 years in the expansion of personal liberty and equality under the law.
The occasion of Cady’s death is an excellent time to Google “Varnum v. Brien” and read his clear writing as he patiently explains the circumstances that brought the Supreme Court to this landmark legal crossroads.
His presentation of the facts, the Iowa marriage law, and his analysis of the Iowa Constitution flows like it was part of a lecture by a beloved professor.
Cady wrote: “This lawsuit is a civil rights action by 12 individuals who reside in six communities across Iowa. Like most Iowans, they are responsible, caring, and productive individuals. They maintain important jobs, or are retired, and are contributing, benevolent members of their communities. They include a nurse, business manager, insurance analyst, bank agent, stay-at-home parent, church organist and piano teacher, museum director, federal employee, social worker, teacher, and two retired teachers.
“Like many Iowans, some have children and others hope to have children. Some are foster parents. Like all Iowans, they prize their liberties and live within the borders of this state with the expectation that their rights will be maintained and protected — a belief embraced by our state motto.”
But these Iowans are not the same as other people, Cady wrote.
“Despite the commonality shared with other Iowans, the 12 plaintiffs are different from most in one way. They are sexually and romantically attracted to members of their own sex. The 12 plaintiffs comprise six same-sex couples who live in committed relationships. Each maintains a hope of getting married one day, an aspiration shared by many throughout Iowa.
“Unlike opposite-sex couples in Iowa, same-sex couples are not permitted to marry in Iowa. The Iowa Legislature amended the marriage statute in 1998 to define marriage as a union between only a man and a woman.”
Cady said the record before the court “included an explanation by some of the plaintiffs of the disadvantages and fears they face each day due to the inability to obtain a civil marriage in Iowa. These disadvantages and problems include the legal inability to make many life and death decisions affecting their partner, including decisions related to health care, burial arrangements, autopsy, and disposition of remains following death.
“Various plaintiffs told of the inability to share in their partners’ state-provided health insurance, public-employee pension benefits, and many private-employer-provided benefits and protections. They also explained how several tax benefits are denied.”
He continued: “The Iowa Constitution … defines certain individual rights upon which the government may not infringe. Equal protection of the law is one of the guaranteed rights … A statute inconsistent with the Iowa Constitution must be declared void, even though it may be supported by strong and deep-seated traditional beliefs and popular opinion.”
Then, he provided important context for the court’s decision:
“In the first reported case of the Supreme Court of the Territory of Iowa, In Re: Ralph (1839), we refused to treat a human being as property to enforce a contract for slavery and held our laws must extend equal protection to persons of all races and conditions. This decision was 17 years before the United States Supreme Court infamously decided Dred Scott v. Sandford, which upheld the rights of a slave owner to treat a person as property.
“Similarly, in Clark v. Board of Directors, (1868), and Coger v. North West. Union Packet Co., (1873), we struck blows to the concept of segregation long before the United States Supreme Court’s decision in Brown v. Board of Education, (1954) …
“In each of those instances, our state approached a fork in the road toward fulfillment of our constitution’s ideals and reaffirmed the absolute equality of all persons before the law as the very foundation principle of our government.
“So, today, this court again faces an important issue that hinges on our definition of equal protection. This issue comes to us with the same importance as our landmark cases of the past … How can a state premised on the constitutional principle of equal protection justify exclusion of a class of Iowans from civil marriage?”
The court answered that question unanimously: There is no legally justifiable basis for treating same-sex couples differently in Iowa.
“Professor” Cady’s civics lesson is one that Iowans should read and remember as we go about life in this state, a state blessed to count Mark Cady as one of us.
By Randy Evans