Iowa Supreme Court: Gay marriage ban unconstitutional

3 April 2009
USA Today

Iowa Supreme Court: Gay marriage ban unconstitutional

By Grant Schulte, USA TODAY

DES MOINES — The Iowa Supreme Court on Friday unanimously upheld gays’ rights to marry, saying the state’s same-sex marriage ban violates constitutional rights.

“The Iowa statute limiting civil marriage to a union between a man and a woman violates the equal protection clause of the Iowa Constitution,” the court wrote in a summary of their decision.

The decision makes Iowa the third state where gay marriage is legal, behind Massachusetts and Connecticut.

California, which briefly allowed gay marriage before a voter initiative in November repealed it, allows domestic partnerships.

The Iowa court affirmed a 2007 Polk County District Court decision that would allow six gay couples to marry. The ruling is viewed as a victory for the gay rights movement in Iowa and elsewhere, and a setback for conservatives who want to protect traditional families.

The decision makes Iowa the first Midwestern state to allow same-sex marriages. Lawyers for Lambda Legal, a gay rights group that financed the court battle and represented the couples, hope to use the court victory to demonstrate acceptance of same-sex marriage in heartland America.


The ruling set off celebration among the state’s gay-marriage proponents.

One of the plaintiffs, Jason Morgan of Sioux City, broke into tears as he recounted his love for his partner of 11 years, Chuck Swaggerty, and their four-year legal battle.

“If that isn’t love and commitment, isn’t family and marriage, I don’t know what is,” he said through tears. “We are very happy with the decision today and very proud to live in Iowa.”

“Iowa is about justice, and that’s what happened here today,” said Laura Fefchak, who was hosting a verdict party in the Des Moines suburb of Urbandale with her partner of 13 years, Nancy Robinson.

Robinson added: “To tell the truth, I didn’t think I’d see this day.”

The Iowa Supreme Court’s website was deluged with more than 1.5 million visitors Friday morning in anticipation of the ruling, said Steve Davis, a court spokesman.

Davis said administrators added extra computer servers to handle the increase which he said was “unprecedented.”

Richard Socarides, a former senior adviser to President Bill Clinton on gay civil rights, said Friday’s decision could set the stage for other states.

“I think it’s significant because Iowa is considered a Midwest state in the mainstream of American thought,” said Socarides, a former senior political assistant for Sen. Tom Harkin, D-Iowa. “Unlike states on the coasts, there’s nothing more American than Iowa. As they say during the presidential caucuses, ‘As Iowa goes, so goes the nation.'”

Court rules dictate that the decision will take about 21 days to be considered final, and a request for a rehearing could be filed within that period. But Polk County Attorney John Sarcone said the county attorney’s office will not ask for a rehearing or appeal the matter to the federal courts.

“This was never anything personal,” Sarcone said. “We have a responsibility to defend the recorder. We defended the statute, and we had a fair and full hearing in the district court and the supreme court. Everything was done with dignity.”

Opponents have long argued that allowing gay marriage would erode the institution. Some Iowa lawmakers, mostly Republicans, attempted last year to launch a constitutional amendment to specifically prohibit same-sex marriage.

Such a change would require approval in consecutive legislative sessions and a public vote, which means a ban could not be put in place until at least 2012 — unless lawmakers take up the issue in the next few weeks.

“If you’ll remember when we proposed the Iowa marriage amendment, the Democrats’ excuse for not taking it up was that it was in the hands of the Iowa Supreme Court,” Senate Republican leader Paul McKinley of Chariton said Friday. “It was implied that should they find against traditional marriage, that the Legislature would handle that. I would certainly hope they’ll keep their promise.”

Until Friday, Iowa law said marriage could only be between one man and one woman. The case, Varnum vs. Brien, involves six same-sex Iowa couples who sued Polk County Recorder Timothy Brien in 2005 after his office denied them marriage licenses.

Polk County District Judge Robert Hanson sided with the couples last year but then suspended his decision pending a high court ruling.

In Dec. 10 arguments to the high court, Assistant Polk County Attorney Roger Kuhle said Hanson erred in his ruling, which declared the 1998 Iowa Defense of Marriage Act unconstitutional, and threw out several expert witnesses that gay marriage opponents had hoped to use at the trial.

Hanson ruled that the witnesses did not qualify as experts on issues relevant to the case.

Brien, the Polk County recorder, rejected the marriage license requests because he “has no say in this law,” Kuhle said. “He can no more give these plaintiffs a license than he could give a license to a man and three women.”

Kuhle argued that same-sex marriage could loosen the definition of marriage to include polygamy. Future generations might discard the institution if they come to believe that opposite-sex parents are not necessary, he argued.

A ruling favorable to gay marriage also could hurt children, who are best raised by a mother and father, he said.

“One could easily argue, and we do, that fostering same-sex marriage will harm the institution of marriage as we know it,” Kuhle said. “It’s not going to happen tomorrow. We’re not going to see any changes tomorrow, next week, next year, in our generation. But you’ve got to look to the future.”

Kuhle said state support for same-sex marriage would teach future generations that marriage is no longer about procreation despite thousands of years of history. Nor does the case belong in the courts, Kuhle said, adding debate should fall to the Legislature.

Mark Kende, a constitutional law professor at Drake University in Des Moines, said the ruling was narrowly drawn and “very well reasoned.”

The unanimous decision will have national – and possibly international – influence on court decisions in other regions, he said.But he said it also could create new, inter-state legal battles.

Couples who flock to Iowa to marry may not have their marriage recognized in other states that prohibit same-sex marriage, Kende said.The decision also is limited to civil marriages performed in county buildings. Churches do not have to perform same-sex marriages if they oppose the concept, he said.

Around the country, New Jersey and New Hampshire also offer civil unions, which provide many of the same rights that come with marriage.

New York recognizes same-sex marriages performed elsewhere, and legislators there and in New Jersey are weighing whether to offer marriage. A bill that would legalize same-sex marriage in Vermont has cleared the Legislature but may be vetoed by the governor.


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