(From the Des Moines Register)
The Iowa Supreme Court this morning upheld a Polk County judge’s 2007 ruling that marriage should not be limited to one man and one woman.
The ruling, viewed nationally and at home as a victory for the gay rights movement and a setback for social conservatives, means gay couples can legally marry in Iowa beginning March 24.
Shelly Wolfe and Melisa Keeton, who waited for word of the ruling outside the Polk County Recorder’s Office, immediately called their pastor anyway to make plans.
“We’re going to make it legal,” Keeton, 31, of Des Moines said.
Wolfe, 38, and Keeton, who is 21 weeks pregnant, went through a commitment ceremony two years ago. Their marriage certificate was among the 26 that were put on hold when Polk County Judge Robert Hanson’s decision to open the door for gay marriage was delayed until the high court could weigh in.
Today’s decision makes Iowa the first Midwestern state, and the fourth in the country, to allow same-sex marriages. Lambda Legal, a gay rights group, financed the court battle and represented six couples who challenged Iowa’s 10-year-old ban on gay marriage.
Supreme Court Justice Mark Cady, who wrote the unanimous decision, at one point invoked the court’s first-ever decision, in 1839, which struck down slavery laws 17 years before the U.S. Supreme Court upheld the right of a slave owner to treat a person as property.
Iowa’s gay marriage ban “is unconstitutional, because the county has been unable to identify a constitutionally adequate justification for excluding plaintiffs from the institution of civil marriage,” Cady wrote in the 69-page opinion that seemed to dismiss the concept of civil unions as an option for gay 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 wrote.
The ruling, however, also addressed what it called the “religious undercurrent propelling the same-sex marriage debate,” and said judges must remain outside the fray.
Some Iowa religions are strongly opposed to same-sex marriages, the justices noted, while some support the notion.
“Our constitution does not permit any branch of government to resolve these types of religious debates and entrusts to courts the task of ensuring that government avoids them,” the opinion says.
The ruling explicitly does not affect “the freedom of a religious organization to define marriage it solemnizes as unions between a man and a woman,” the justices stressed.
The case, Varnum vs. Brien, involved couples who sued Polk County Recorder Timothy Brien in 2005 after his office denied them marriage licenses. Hanson sided with the couples last year but then suspended his decision pending a high court ruling.
“We won! It is unanimous!” Camilla Taylor of Lambda Legal exclaimed when the ruling was announced. “Today the dream becomes reality … and Iowa constitution’s promise equality is fulfilled. Iowans have never waited for others to do the right thing. Iowa took its place in the vanguard of the civil rights struggle, and we couldn’t be more proud to be part of this.”
Gov. Chet Culver e-mailed a response to reporters that said: “The decision released this morning by Supreme Court addresses a complicated and emotional issue, one on which Iowans have strong views and opinions on both sides. 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.”
Richard Socarides, a former senior adviser to President Bill Clinton on gay civil rights, said today’s decision could mean as much to gay couples outside Iowa.
“I think it’s significant because Iowa is considered a Midwest sate in the mainstream of American thought,” Socarides, a senior political assistant for Iowa Sen. Tom Harkin in the early 1990s, said Thursday. “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.’”
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 imposed until at least 2012, unless lawmakers take up the issue in the next few weeks. Leaders this week said they had no plans to do so.
Senate Republican Leader Paul McKinley, R-Chariton, nonetheless called for an immediate move to amend the constitution.
“The decision made by the Iowa Supreme Court today to allow gay marriage in Iowa is disappointing on many levels,” he said. I believe marriage should only be between one man and one woman, and I am confident the majority of Iowans want traditional marriage to be legally recognized in this state.
“Though the court has made their decision, I believe every Iowan should have a voice on this matter and that is why the Iowa Legislature should immediately act to pass a Constitutional Amendment that protects traditional marriage, keeps it as a sacred bond only between one man and one woman and gives every Iowan a chance to have their say through a vote of the people.”
State Rep. Dave Heaton, R-Mount Pleasant, said he would support a constitutional amendment. However, he also believes lawmakers would have to work on parallel legislation that would grant civil unions or some sort of way to grant legal rights to same-sex couples.
“I firmly believe marriage should be between a man and a women but I at the same time, I believe we should address these issues,” Heaton said. I would rather recognize a civil union than to have same-sex marriage.”
Diane Thacker’s eyes filled with tears as the ruling were read to an crowd opposed to gay marriage that had gathered on the north side of the judicial building.
“Sadness,” she whispered.. “But I’m prayerful and hopeful that God’s word will stand.”
Thacker said she joined to group “because I believe in the marriage vow. I can’t see it any other way.”
Democratic State Sen. Matt McCoy of Des Moines, saw the decision a different way.
“I’m off the wall. I’m very pleased to be an Iowan,” said McCoy, who is openly gay.
Voices from outside the state quickly took sides. The Iowa Supreme Court’s Web site was deluged with more than 1.5 million visitors as of 11 a.m., court spokesman Steve Davis said..
Doug Napier, a lawyer for the Alliance Defense Fund in Arizona, said the Iowa Supreme Court “stepped out of its proper role in interpreting the law.”
Napier said the legislature should place a constitutional amendment on a statewide ballot to let Iowans decide.
The Defense of Marriage Act “was simple, it was settled, and overwhelming supported by Iowans,” Napier said. “There was simply no legitimate reason for the court to redefine marriage.”
Maggie Gallagher, president of the National Organization for Marriage, a New Jersey group, said “once again, the most undemocratic branch of government is being used to advance an agenda the majority of Americans reject.”
“Marriage means a husband and wife. That’s not discrimination, that’s common sense,” she said in a press release. “Even in states like Vermont, where they are pushing this issue through legislatures, gay marriage advocates are totally unwilling to let the people decide these issues directly.”
Mark Kende, a constitutional law professor at Drake University, described the ruling as narrowly written and “very well reasoned,” and predicted it will have national, possibly international, influence. But it also could create new, inter-state legal battles, he said. Couples who flock to Iowa to marry may not have their marriage recognized in other states that prohibit same-sex marriage, he said.
The decision also is limited to civil marriages performed in county buildings, he said.
Meanwhile, Kate and Trish Varnum, whose surname will forever be attached to the historic decision, called it “a great day for Iowa.”
At a press conference this morning, Kate Varnum said: “Good morning… and I’d like to introduce you to my fiancé. Today I am proud to be a lifelong Iowan.”
Trish Varnum added: “It’s been a wonderful adventure, and we’re looking forward to the next wonderful adventure — as a married couple in Iowa.”
A Des Moines Register poll in 2008 of Iowa lawmakers showed that a majority of Iowa’s lawmakers —123 of 150 — said they believed marriage should only be between a man and a woman. It was unclear whether those lawmakers had enough votes to pass a constitutional amendment to ban same-sex marriage.
An Iowa Poll in February 2008 showed that most Iowans believed marriage should be only between one man and one woman. However, the poll also showed that a majority of Iowa adults supported the creation of civil unions that would grant benefits to gay couples similar to those offered to heterosexuals in marriage.
In the poll, 62 percent of Iowans said they believed marriage should be only between a man and a woman. Thirty-two percent said they believed same-sex marriages should be allowed, while 6 percent were unsure.
Iowans were split, however, on whether the state constitution should be changed to ban gay marriages. More than half of Iowans who responded to the poll supported civil unions for same-sex couples. About four in 10 Iowans opposed civil unions, and 4 percent were unsure.
Harkin, a Democrat, issued a written statement today that said: “my personal view has been that marriage is between a man and a woman, and I have voted in support of that concept. But I also fundamentally believe that same sex couples in a civil union should be entitled to all the basic legal protections and benefits of marriage.”
“I know that this decision will be very hard for many to accept,” he added. “But I also know that it will provide many committed same sex couples and families important rights, as well as an important sense of recognition and belonging.”
Religious leaders who support gay-marriage rights praised the ruling as an affirmation of equal rights for all Iowans.
“The court’s ruling shows Iowa is a place that celebrates fairness and equality for all Iowans,” said Connie Ryan Terrell, executive director of the Interfaith Alliance of Iowa. “It upholds the spirit of Iowa’s constitution, which clearly states each of us has the right to equal protection and recognition under the law.”
The Rev. Mark Stringer said he cried when he heard of the decision. Stringer performed the only legal same-sex marriage in Iowa when he officiated a ceremony for Sean Fritz and Tim McQuillan in 2007.
“It was such a sense of relief to me as someone who has cared about marriage equality,” Stringer said, adding that he is happy gay couple will have the same rights as he and his wife.
“It’s really an astounding moment under our history,” he said. “What really excites me is that Iowa is the first in our area of the country. We are being a leader in civil rights, which will be part of our state’s history.”
Polk County Attorney John Sarcone, whose office represented Brien, said has no plan to seek a new hearing on the case or appeal to the federal courts. Sarcone said the case involved “a substantial time and monetary commitment” for the county, although he did not know the dollar amount. Assistant County Attorney Roger Kuhle, who argued the case to the high court, traveled to England and Canada at county expense to take depositions, he said.
“This was never anything personal,” he 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.”
The full decision of the court is here.