Wedding bells in Iowa

Court hands down the nation�s first unanimous ruling for marriage

by Anthony Glassman

Des Moines--Iowa�s high court made history on April 3, becoming not only the first Midwestern supreme court to rule in favor of same-sex marriage, but also the first in the country to issue a unanimous decision in such a case.

�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,� wrote Justice Mark Cady in the opinion

The court ruled that limiting marriage to opposite-sex couples violates the Iowa constitution�s equal protection guarantee, and that tradition is no defense:

�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.�

The court said that weddings could begin on April 27. Iowa has no residency requirement for marriage.

The suit, Varnum v. Brien, was first decided in Polk Country District Court two years ago. One gay male couple was able to marry before District Judge Robert Hanson stayed his decision pending appeal to the state high court.

Assistant Polk County Attorney Roger Kuhle hit familiar points in his argument before the supreme court on December 10. The state�s opposite-sex marriage law should be kept, he said, to avoid the �slippery slope� that could lead to polygamy; that traditional marriage is necessary to keep up procreation, and that children are best raised by a mother and a father.

He also argued that traditional marriage should be upheld, for all intents and purposes, simply because it is traditional.

Cady refuted that in the high court�s opinion.

�When a certain tradition is used as both the governmental objective and the classification to further that objective, the equal protection analysis is transformed into the circular question of whether the classification accomplishes the government objective, which objective is to maintain the classification,� he continued.

He pointed out that using that argument to uphold tradition would have invalidated every racial and gender-based equal rights case.

The court was similarly thoughtful in rejecting arguments around procreation, noting that an array of professional organizations� studies showed that children of same-sex couples are raised as well as those of opposite-sex couples.

�While heterosexual marriage does lead to procreation, the argument by the county fails to address the real issue in our required analysis of the objective: whether exclusion of gay and lesbian individuals from the institution of civil marriage will result in more procreation? If procreation is the true objective, then the proffered classification must work to achieve that objective,� Cady wrote.

�Gay and lesbian persons are capable of procreation. Thus, the sole conceivable avenue by which exclusion of gay and lesbian people from civil marriage could promote more procreation is if the unavailability of civil marriage for same-sex partners caused homosexual individuals to �become� heterosexual in order to procreate within the present traditional institution of civil marriage,� he continued. �The briefs, the record, our research, and common sense do not suggest such an outcome . . .�

The ruling, unlike those in New Jersey and Vermont, specifically required that marriage, not civil union, be extended to all couples.

�A new distinction based on sexual orientation would be equally suspect and difficult to square with the fundamental principles of equal protection embodied in our constitution,� Cady concluded.

While opponents of same-sex marriage are already bemoaning �activist judges� who �legislating from the bench,� Cady himself was appointed by conservative Republican Gov. Fred Grandy.

The Democratic leadership of both houses of the state legislature expressed their support of the decision. Iowa�s constitution does not allow constitutional amendments to be introduced through a petition drive, so same-sex marriage in the state cannot be negated by a ballot initiative, as was the case in California last year.

�Thanks to today�s decision, Iowa continues to be a leader in guaranteeing all of our citizens� equal rights,� said the release by Senate Majority Leader Mike Gronstal and House Speaker Pat Murphy. �When all is said and done, we believe the only lasting question about today�s events will be why it took us so long. It is a tough question to answer because treating everyone fairly is really a matter of Iowa common sense and Iowa common decency.�

The leaders pointed to the state�s history of ground-breaking legal decisions, dating back to a ruling from 1839 that slavery was unconstitutional, over 20 years before the Civil War, and another case striking segregated schools a century before the U.S. Supreme Court reached the same conclusion.

Gronstal has also said that he will not allow a vote in the Iowa Senate on a constitutional amendment to bar same-sex marriage.

Iowa�s is the last of ten marriage cases brought in state high courts over the past 11 years. Since Hawaii�s supreme court declared a marriage case moot in 1998 after voters passed the nation�s first ban amendment, top courts in Massachusetts, Connecticut and California have ruled for full marriage equality, and those in Vermont and New Jersey have allowed civil unions. High courts have let opposite-sex-only laws stand in New York, Maryland and Washington.

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