Iowa and Marriage

Iowa and Marriage
By Carlos T Mock, MD
April 4, 2009
Copyright by Carlos T Mock, MD

The Constitution set three different branches of government: the executive, the legislative, and the judicial.

The Judicial has the duty to protect the rights of minorities from the majority. Iowa's Supreme Court unanimous ruling Friday, finding that the state's same-sex marriage ban violates the constitutional rights of gay and lesbian couples is a perfect example of the purpose of the Judicial system set by our forefathers.

This is of great importance because it shows that despite attempts to stop gay marriage through right wing ballot initiatives, like in California, the courts will continue to support the case for equal rights for gays.

The Gay and Lesbian community is not asking for the right to have religious organizations recognize their unions. As a matter of fact, some religions are already performing same sex marriages: both the Reform and Reconstructionist Jewish movements support gay and lesbian rights, including the right of same-sex couples to wed; In 1996, the Unitarian Universalist Association of Congregations passed a resolution in support of same-sex marriage; In 2005, the General Synod of the United Church of Christ voted to legally recognize and advocate in favor of same-sex marriage. However, in spite of the wonderful ability to wed in these religious ceremonies, Gay and Lesbian couples get no civil rights through them.

As a nation that was built in the separation of Church and State, Gays and lesbians are not trying to force any religious institution to recognize our marriages (really, we don’t care!)—just the federal and state governments. Gay and lesbian Americans feel they need and deserve the perquisites and protections that accompany a civil legal marriage. Federal law links many important perquisites to marital status, including Social Security survivor benefits, tax-free inheritance, spousal immigration rights and protections against mutual incrimination. All of these benefits are currently denied to same-sex couples, even those living in states that permit same-sex marriage or civil unions.

In 2003, the U. S. Supreme court Lawrence v. Texas Sodomy declared unconstitutional sodomy laws. The majority opinion, written by Justice Anthony Kennedy, explicitly reversed Bowers v. Hardwick. (On June 30, 1986, the Supreme Court of the United States ruled in Bowers v. Hardwick, that homosexual citizens had no constitutional right to privacy.) What is significant about this decision is that under the common law, the existence of rights of sexual partners are recognized through the marriage contract. That is, in common law there is no stand-alone right to engage in sexual activity, be they male or female, adult or minor. But, it is a basic legal principle under the common and statutory laws that everything that is not forbidden by the common and statutory law is allowed. As sexual acts usually take place in private, few cases involving engagement in sodomy and fornication come before the courts, and no precedent was established under the common law forbidding fornication; with sodomy, the common law is mixed. This was most notable in Judge Scalia dissension: with this decision, Scalia concluded, the Court "has largely signed on to the so-called homosexual agenda." While Scalia said that he has "nothing against homosexuals, or any other group, promoting their agenda through normal democratic means," Scalia argued that the Court has an obligation to decide cases neutrally. In Goodridge v. Department of Public Health, a later case decided by the Massachusetts Supreme Judicial Court, held that the Massachusetts Constitution requires that marriage be available to homosexual as well as heterosexual couples.

Now that The Lawrence decision has made our relationships “officially” legal—our rights need protection like those of any other U. S. citizen—therefore the 14th Amendment to the constitution applies fully to homosexuals: this amendment provides a broad definition of citizenship, overruling Dred Scott v. Sandford (1857) which had excluded slaves and their descendants from possessing Constitutional rights. The amendment requires states to provide equal protection under the law to all persons within their jurisdictions and was used in the mid-20th century to dismantle racial segregation in the United States, as in Brown v. Board of Education (1954). Its Due Process Clause has been the basis of much important and controversial case law regarding privacy rights, abortion (Roe v. Wade), and other issues.

This is the only legal compromise for same sex “civil “marriages—we are legal citizens of the U. S. of A. and pay taxes and FICA like every other citizen in the country. Until we are allowed the “civil right” to wed, we will be second class citizens—we will be deprived of more than 1,138 federal rights that accompany civil marriage, and some additional 300-600 per individual state. That means your run-of-the-mill-marriage-license-carrying heterosexual couple has access to over 1,400 rights, benefits, and protections that gay and lesbian citizens are unable to obtain! This is a clear violation of the 14th amendment to the U. S. Constitution that provides equal protection under the law to all persons regardless of sexual preference or gender orientation!

Civil unions are not enough!

In Loving v. Virginia, (1967) where The U.S. Supreme Court overturned the convictions in a unanimous decision, dismissing the Commonwealth of Virginia's argument that a law forbidding both white and black persons from marrying persons of another race, and providing identical penalties to white and black violators, could not be construed as racially discriminatory. The court ruled that Virginia's anti-miscegenation statute violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. In the Court's decision, Chief Justice Warren wrote:
“Marriage is one of 'the basic civil rights of man,' fundamental to our very existence and survival . . . To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law.”

The case against same sex marriage, according to the religious right, is that this would damage an important social institution. Yet, the reverse is surely true. Gays want to marry precisely because we see marriage as important: we want the symbolism that marriage brings, the extra sense of obligation and commitment, as well as the social recognition. Allowing gays to marry would, if anything, add to social stability, for it would increase the number of couples that take on real, rather than simply passing, commitments. The weakening of marriage has been heterosexuals' doing, not gays', for it is their infidelity, divorce rates and single-parent families that have wrought social damage. As a matter of fact, Massachusetts, the first US state to grant same sex marriage licenses, has the lowest divorce rate in the U.S.

The importance of marriage for society's general health and stability also explains why the commonly mooted alternative to gay marriage-a so-called civil union-is not enough. Yet, those civil unions would be both wrong in principle and damaging for society. Marriage, as it is commonly viewed in society, is more than just a legal contract. Moreover, to establish something short of real marriage for some adults would tend to undermine the notion for all. Why shouldn't everyone, in time, downgrade to civil unions? Now that really would threaten a fundamental institution of civilization.


Carlos Mock, MD has published three books and is the Floricanto Press editor for its GLBT series. He was inducted in the Chicago Gay & Lesbian Hall of Fame in October of 2007. He grew up middle-class in the suburbs of San Juan, Puerto Rico. His website is: www.carlostmock.com





Iowa Court Voids Gay Marriage Ban
By MONICA DAVEY
Copyright by The Associated Press
Published: April 3, 2009
http://www.nytimes.com/2009/04/04/us/04iowa.html?_r=1&th&emc=th


DES MOINES — Same-sex couples will be allowed to marry in Iowa by month’s end, after a ruling on Friday by the Iowa Supreme Court that found unconstitutional a state law limiting marriage to a man and a woman.

The unanimous decision moved the heated battle over same-sex marriage beyond the East and West Coasts to the nation’s middle. Only Massachusetts and Connecticut now allow same-sex marriages, while California permitted them for about six months before voters approved a ban in November.

“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,” Justice Mark S. Cady wrote for the seven-member court, adding later, “We have a constitutional duty to ensure equal protection of the law.”

Opponents of same-sex marriage pledged to fight the outcome, but acknowledged that there appeared to be no immediate way to undo it. The only avenue would be a constitutional amendment, but under Iowa law that process would take at least two years.

Members of the Iowa Family Policy Center, a group opposed to same-sex marriage, spoke with state lawmakers after the ruling in hopes of jump-starting the amendment process.

“A court decision doesn’t change what’s right and what’s wrong,” said Bryan English, a spokesman for the group.

But there was no indication that the Legislature, controlled by Democrats, would take up the matter.

Meanwhile, the ruling set off celebrations among same-sex couples, many of whom had gathered at a hotel here to await word. They wept, embraced, laughed, and wept some more.

“I think there’s been a perception that it couldn’t happen here,” David Twombley, 67, said, moments after he learned that he and his partner could marry. The couple was among six Iowa couples to start the legal fight four years ago that culminated in Friday’s decision.

“But yes, it happened, right here in Iowa,” Mr. Twombley said. “There’s something about that, about it happening in the heartland, that has got to accelerate this process for the whole country.”

Same-sex marriages could take place in counties here starting in three weeks, when the ruling becomes final, lawyers said. There is no requirement that people seeking marriage licenses prove they live in Iowa, so the doors will be open to same-sex couples from other states.

“Go get married!” Dennis W. Johnson, a lawyer from Des Moines who had helped represent the gay and lesbian couples in the case, told the gathering at the hotel. “Live happily ever after,” Mr. Johnson called out, adding, “Live the American dream.”

Opponents of the decision said they believed it would awaken enormous backlash here and throughout the Midwest once people understood what had happened.

Along the streets of this city in the hours after the ruling, people expressed mixed views of the matter, though nearly all said they were surprised — happily so, in some cases, but less so for others — at what the court had concluded.

On at least one talk-radio show, residents were enraged.

“I’m almost ready to up and leave Iowa and move back to Minnesota,” one woman said angrily.

Within hours of the decision, the representatives of the Iowa Family Policy Center left the Supreme Court building here, and sought out state lawmakers in the State Capitol building just down the street.

Unlike some states that have barred the marriages with voter-led ballot measures, voters here cannot directly initiate constitutional amendments. Instead, an amendment would require approval by state lawmakers during two legislative sessions, and then approval by voters at the ballot box. That means the earliest a prospective ban could take effect would be 2012.

Opponents of same-sex marriages want state lawmakers, who are a few weeks from finishing their annual legislative session, to begin the process now. But the idea seemed to have no backing among legislative leaders; both chambers here are controlled by Democrats.

“We’re just going to say no to amending our Constitution and putting discrimination into our Constitution,” said Michael E. Gronstal, a Democrat and State Senate majority leader, who noted that such an amendment had failed in the Senate several years ago, even before the suit that led to Friday’s ruling, and would, he said, most likely fail again.

Gov. Chet Culver, also a Democrat, was more muted in his response to the ruling.

“The next responsible step is to thoroughly review this decision, which I am doing with my legal counsel and the attorney general, before reacting to what it means for Iowa,” Mr. Culver said in a written statement.

Whether or not state lawmakers take up the constitutional amendment in the coming weeks, the ruling ensures the state will become a battleground over same-sex marriage.

National advocacy groups, which have been focused on a case before the California Supreme Court that seeks to overturn the ban in that state, and on Vermont, where a bill legalizing same-sex marriage is pending, have already turned their eyes to Des Moines.

“The gay marriage movement has once again used the power of the courts to push an untruth on unwilling Iowans,” said Brian S. Brown, the executive director of the National Organization for Marriage, a group formed in 2007 to preserve traditional marriage. “Same-sex unions are not marriages, and Iowans should not be forced by law to treat them as such.”

Leaders of Lambda Legal, which is based in New York and led — along with state and local lawyers here — the legal case before the Supreme Court, said Iowans had a long history of openmindedness, or as State Senator Matt McCoy, a Democrat who is openly gay, described it, “a live and let live attitude.”

Camilla Taylor, a senior staff lawyer for Lambda, said the Supreme Court ruling in a way was merely “vindicating quintessential Iowa values,” namely, a commitment to families. That this battle was being waged in Iowa, Ms. Taylor said, would have a “transformative effect” not just on the Midwest, but elsewhere.

“The fact that it’s here in some way highlights the inevitability of this all,” she said.

The legal case here began in 2005, when the six same-sex couples filed suit against the county recorder here in Polk County because he would not accept their marriage license applications.

Two years later, a local judge, Robert B. Hanson, ruled in that case that a 1998 state law defining marriage as only between a man and woman was unconstitutional. The ruling, in 2007, set off a flurry of same-sex couples from all over the state, racing for the courthouse in Polk County.

The rush lasted less than a day in August 2007. Although Judge Hanson had ruled against the state law, he quickly decided to delay any additional granting of licenses, saying that the Iowa Supreme Court should have an opportunity to weigh in first.

“If gay and lesbian people must submit to different treatment without an exceedingly persuasive justification, they are deprived of the benefits of the principle of equal protection upon which the rule of law is founded,” the Supreme Court said in agreeing that the 1998 law was unconstitutional.

Liz Robbins contributed reporting from New York.







Iowa Court Says Gay Marriage Ban Unconstitutional
By AMY LORENTZEN
Copyright by The Associated Press
Friday, April 3, 2009; 10:54 AM
http://www.washingtonpost.com/wp-dyn/content/article/2009/04/03/AR2009040300376.html?hpid=topnews


DES MOINES, Iowa -- The Iowa Supreme Court issued a unanimous ruling Friday finding that the state's same-sex marriage ban violates the constitutional rights of gay and lesbian couples, making Iowa the third state where gay marriage is legal.

In its decision, the court upheld a 2007 district court judge's ruling that the law violates the state constitution. It strikes the language from Iowa code limiting marriage to only between a man a woman.

"The court reaffirmed that 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," said a summary of the ruling issued by the court.

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

"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 partner of 13 years, Nancy Robinson.

Robinson added: "To tell the truth, I didn't think I'd see this day."

Richard Socarides, an attorney and former senior adviser on gay rights to President Clinton, said the ruling carries extra significance coming from Iowa.

"It's a big win because, coming from Iowa, it represents the mainstreaming of gay marriage. And it shows that despite attempts stop gay marriage through right wing ballot initiatives, like in California, the courts will continue to support the case for equal rights for gays," he said.

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. That means it will be at least several weeks before gay and lesbian couples can seek marriage licenses.

But Polk County Attorney John Sarcone said the county attorney's office will not ask for a rehearing, meaning the court's decision should take effect after that three-week period.

"Our Supreme Court has decided it, and they make the decision as to what the law is and we follow Supreme Court decisions," Sarcone said. "This is not a personal thing. We have an obligation to the law to defend the recorder, and that's what we do."

The case had been working its way through Iowa's court system since 2005 when Lambda Legal, a New York-based gay rights organization, filed a lawsuit on behalf of six gay and lesbian Iowa couples who were denied marriage licenses. Some of their children are also listed as plaintiffs.

The suit named then-Polk County recorder and registrar Timothy Brien.

The state Supreme Court's ruling upheld an August 2007 decision by Polk County District Court Judge Robert Hanson, who found that a state law allowing marriage only between a man and a woman violates the state's constitutional rights of equal protection.

The Polk County attorney's office, arguing on behalf of Brien, claimed that Hanson's ruling violates the separation of powers and said the issue should be left to the Legislature.

Lambda Legal scheduled a news conference for early Friday to comment on the ruling. A request for comment from the Polk County attorney's office wasn't immediately returned.

Around the nation, only Massachusetts and Connecticut permit same-sex marriage. California, which briefly allowed gay marriage before a voter initiative in November repealed it, allows domestic partnerships.

New Jersey, New Hampshire and Vermont 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.

The ruling in Iowa's same-sex marriage case came more quickly than many observers had anticipated, with some speculating after oral arguments that it could take a year or more for a decision.





Iowa court says gay marriage ban unconstitutional
By AMY LORENTZEN
Copyright 2009 Associated Press
9:56 AM CDT, April 3, 2009
http://www.chicagotribune.com/news/chi-ap-ia-iowa-gaymarriage,0,1016563.story


DES MOINES, Iowa - Gay marriage advocates began celebrating early Friday after the Iowa Supreme Court issued a unanimous ruling finding that the state's same-sex marriage ban violates the constitutional rights of gay and lesbian couples.

In its decision, the court upholds a 2007 Polk County District Court judge's ruling that the law violates the Iowa Constitution. It strikes the language from Iowa code limiting marriage to between a man and a woman, making Iowa the third state in the nation where same-sex marriage will be legal.

"We have a constitutional duty to ensure equal protection of the law. Faithfulness to that duty requires us to hold Iowa's marriage statute ... violates the Iowa Constitution. To decide otherwise would be an abdication of our constitutional duty," the court wrote in its decision.

Court rules dictate that it will take about 21 days for the ruling to be considered final and a request for a rehearing could be filed within that period. That means it will be at least several weeks before gay and lesbian couples can seek marriage licenses.

Polk County Attorney John Sarcone said shortly after the ruling that the county attorney's office will not ask for a rehearing, meaning the court's decision should take effect after that three-week period.

"Our Supreme Court has decided it, and they make the decision as to what the law is and we follow Supreme Court decisions," Sarcone said. "This is not a personal thing. We have an obligation to the law to defend the recorder, and that's what we do."

The case has been working its way through Iowa's court system since 2005 when Lambda Legal, a New York-based gay rights organization, filed a lawsuit on behalf of six gay and lesbian Iowa couples who were denied marriage licenses. Some of their children are also listed as plaintiffs.

The suit named then-Polk County recorder and registrar Timothy Brien.

Des Moines attorney Dennis Johnson, who argued on behalf of the gay and lesbian couples, said "this is a great day for civil rights in Iowa."

"We have all of you courageous plaintiffs to thank: Go get married, live happily ever after, live the American dream," he said.

After awaiting the decision at a verdict party in the Des Moines suburb of Urbandale, Laura Fefchak and her partner of 13 years Nancy Robinson were ecstatic.

"Iowa is about justice, and that's what happened here today," Fefchak said.

Robinson added: "To tell the truth, I didn't think I'd see this day."

Bryan English, spokesman for the Iowa Family Policy Center, a conservative group that opposes same-sex marriage, said many Iowans are disappointed with the ruling and don't want the courts to decide the issue.

"I would say the mood is one of mourning right now in a lot of ways, and yet the first thing we did after internalizing the decision was to walk across the street and begin the process of lobbying our legislators to let the people of Iowa vote," English said. "This is an issue that will define (lawmakers') leadership. This is not a side issue."

The Rev. Keith Ratliff Sr., pastor at the Maple Street Baptist Church in Des Moines, went to the Supreme Court building to hear of the decision.

"It's a perversion and it opens the door to more perversions," Ratliff said. "What's next?"

Some Iowa politicians began weighing in on the ruling.

Iowa Gov. Chet Culver, a Democrat, said the decision addresses a complicated and emotional issue.

"The next responsible step is to thoroughly review this decision, which I am doing with my legal counsel and the attorney general, before reacting to what it means for Iowa," Culver said in a statement

U.S. Rep. Leonard Boswell, a Democrat whose district includes Polk County, said he respects the Iowa Supreme Court's decision.

"I remain consistent in my belief that this is a decision best suited for the states," Boswell said. "I respect the decision of the court."

In its unanimous ruling, the Iowa Supreme Court upheld an August 2007 decision by Polk County District Court Judge Robert Hanson who found that a state law allowing marriage only between a man and a woman violates the constitutional rights of equal protection.

The Polk County attorney's office, arguing on behalf of Brien, claimed that Hanson's ruling violates the separation of powers and said the issue should be left to the Legislature.

Around the nation, only Massachusetts and Connecticut permit same-sex marriage. California, which briefly allowed gay marriage before a voter initiative in November repealed it, allows domestic partnerships.

New Jersey, New Hampshire and Vermont 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.

The ruling in Iowa's same-sex marriage case came more quickly than many observers had anticipated, with some speculating after oral arguments that it could take a year or more for a decision.

Richard Socarides, an attorney and former senior adviser on gay rights to President Clinton, said the ruling carries extra significance coming from Iowa.

"It's a big win because, coming from Iowa, it represents the mainstreaming of gay marriage. And it shows that despite attempts stop gay marriage through right wing ballot initiatives, like in California, the courts will continue to support the case for equal rights for gays," he said.


Associated Press writers Nigel Duara in Urbandale and Marco Santana and Melanie S. Welte in Des Moines contributed to this report.