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Iowa Supreme Court considers same-sex marriage
Considering constitutional rights of due process and equal protection
Published Thursday, 18-Dec-2008 in issue 1095
DES MOINES, Iowa (AP) – An attorney for a half dozen same-sex couples challenging Iowa’s same-sex marriage ban argued Dec. 9 before the state supreme court that the law violates his clients’ constitutional rights.
“We are suggesting that everybody be able to participate equally in an institution that has existed since the beginning of this state,” said former Iowa Solicitor General Dennis Johnson. “My clients have exactly the same constitutional rights as everybody else, (but) they choose to marry someone of the same sex.”
In 2005, Lambda Legal, a New York-based gay rights organization, filed the lawsuit on behalf of the six gay and lesbian Iowa couples who were denied marriage licenses, as well as three of the couples’ children.
It names former Polk County recorder and registrar Timothy Brien and said the ban, which allows marriage only between a man and woman, violates the constitutional rights of due process and equal protection.
Roger J. Kuhle, an assistant Polk County attorney, said a district court ruling last year in favor of the plaintiffs violates the separation of powers, and is an issue that should be left up to state lawmakers to decide, not the courts.
“We’re asking the court to reverse the district court, which has entered a ruling changing the definition of marriage as it existed for probably 4,000 years,” he told the seven-member Iowa Supreme Court. “We are not here opposing the individual plaintiffs’ sincerity. We are here because, in our view, the issue is one for the Legislature to decide as a matter of social policy.”
Chief Justice Marsha Ternus explained that the high court would determine whether the district court erred by finding that the same-sex marriage ban violated the state constitution, and whether it erred by not allowing the appellant’s expert witness testimony.
Kuhle argued that the function of marriage throughout history has been procreation, and that having a mother and father is the optimal situation for raising a child. Allowing same-sex marriage would, over time, harm the institution of marriage and teach people that it’s not necessary, he said.
“I think it’s a legitimate fear at this point ... when you have the state encouraging same-sex marriage, it’s teaching that marriage is no longer about procreation – that that’s not a primary or even a central function and it’s not an important function of marriage, that marriage is just the commitment between two people,” Kuhle said.
Johnson argued the state has already recognized that same-sex couples can adopt, serve as foster parents and that sexual orientation has no place in custody decisions.
“This state has already basically adopted a policy that same-sex parents are satisfactory,” he said.
He also noted that the state allows convicted sex offenders and pedophiles to marry “without even blinking an eye” yet his clients, who are good parents, are denied the access and benefits of marriage.
The case stems from an August 2007 decision by Polk County District Court Judge Robert Hanson, who ruled that the state law allowing marriage only between a man and a woman violates the rights of due process and equal protection.
The ruling prompted nearly two dozen people to apply for marriage licenses in Polk County, Iowa’s most populous county and home to Des Moines. Only one couple, Sean and Tim McQuillan of Ames, managed to get married before Hanson stayed his decision the next day. Their marriage stands, but its validity could depend on whether the state’s high court sides with the Polk County judge.
The McQuillans were on hand after the arguments and appeared with Lambda Legal attorneys and the six plaintiff couples.
“We just hope that these couples here are able to share in the rights and responsibilities that we already do,” said Tim McQuillan.
Lawsuit plaintiffs Dawn and Jen BarbouRoske, of Iowa City, said they want the same recognition given to other married couples.
“We’re confident that the court will recognize we are a loving family that needs the loving legal marriage within our family,” Dawn BarbouRoske said. “That’s what it’s about is that we love one another – that human right to love and to marry, and to be respected for that.”
Their 10-year-old daughter, McKinley, also spoke, saying that “I’m in a very good family. I love my parents, and I really am proud of them.”
Chuck Hurley, president of the Iowa Family Policy Center, a conservative group that opposes same-sex marriage, said the Legislature and the governor have affirmed what’s been the definition of marriage for thousands of years, and the courts shouldn’t “upset something that’s simple and settled.”
“To upset something that’s overwhelmingly supported for Iowans ... I think it’d be an extreme and a radical thing for this court to jump in where the Legislature’s prerogative lies,” he said.
Attorneys involved in the case said it could take a year or more for a ruling.
If the Iowa court rules in favor of the couples, it would be the fourth state behind Massachusetts, California and Connecticut to uphold the right for same-sex couples to legally marry. In California, however, voters last month amended the state constitution to ban same-sex marriage.
While the Iowa case has garnered much attention from the media and same-sex marriage activists and opponents, cold temperatures, blustery winds and ice-covered roads kept protesters to a minimum outside the Iowa Judicial Branch Building. Some groups held debate watch parties with live feeds from the courtroom, and a film about gays and lesbians in Iowa premiered in Des Moines on Dec. 8.
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