Ruling may take year or more; state would be 4th to legalize gay nups
DES MOINES, Iowa — The gay marriage debate continued Tuesday, Dec. 9 as the Iowa Supreme Court heard arguments in a challenge to the state’s same-sex marriage ban.
Lambda Legal, a New York-based gay rights organization, filed the lawsuit in 2005 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.
Former Iowa Solicitor General Dennis Johnson, an attorney for the plaintiffs, argued that the state’s same sex marriage ban, which allows marriage only between a man and woman, violates gay Iowans’ constitutional rights.
"We are not suggesting a new institution. We are suggesting that everybody be allowed to participate equally in an institution that has
existed since the beginning of this state," he said.
"My clients have the same constitutional right as everybody else, but they chose to marry someone of the same sex."
Roger J. Kuhle, an assistant Polk County attorney, said the district court ruling 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 has existed for 4,000 years," he told the seven-member 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."
Each side was supposed to have 30 minutes to present their case but went far over that allotted time in response to numerous questions from the justices. Kuhle got another 15 minutes for rebuttal.
Chief Justice Marsha Ternus explained that the high court was tasked with determining 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 about the commitment between two people," Kuhle said.
Johnson said 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 basically already adopted a policy that same-sex parents are satisfactory," he said.
He also noted that the state allows sex offenders and pedophiles to marry with almost no problems, yet his clients, who are good parents, "are denied the access and benefits of marriage."
In August 2007, Polk County District Court Judge Robert Hanson ruled that the state law allowing marriage only between a man and a woman violates the constitutional rights of due process and equal protection.
The ruling prompted nearly two dozen people to apply for marriage licenses, but only one couple managed to get married before Hanson stayed his decision the next day. The marriage of Sean Fritz and Tim McQuillan of Ames stands, but its validity could depend on whether the state’s high court sides with the Polk County judge.
Attorneys involved in the case say it could take a year or more for a ruling.
If the Iowa court rules in favor of the half dozen gay couples who filed the lawsuit, 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 changed course last month, opting to amend the state constitution to ban gay marriage.
While the Iowa case has garnered much attention from the media and gay marriage activists and opponents, the 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 Monday night, Dec. 8, in Des Moines.
This article appeared in the Dallas Voice print edition December 12, 2008.