The only same-sex marriage lawsuit currently pending before any court in the country took the seven justices of the Iowa Supreme Court through a dizzying tour of what have become classic same-sex marriage legal debates on Dec. 9. Their questions, and the attorneys' answers, covered procreation, polygamy, the upbringing of children, the downfall of civilization, Bowers v. Hardwick and more.
Polk County assistant attorney Roger Kuhle beckoned the justices to "look into the future" and "picture," as he did, that the allowance of same-sex marriage in Iowa could lead to a "scenario" a generation from now "when the state says it's not relevant who raises a child." A few minutes later, he dismissed the stigma of barring same-sex couples from marrying and the harm that could do to their children as "hypothetical."
Former Iowa Solicitor General Dennis Johnson, representing the same-sex couples on behalf of Lambda Legal Defense and Education Fund, fended off concerns about same-sex marriages leading to polygamy by saying that marriage is an "institution" that has traditionally been between two people only.
"Aren't you doing the same boxing-in of the definition of marriage" as opponents of same-sex marriage, asked Justice Brent Appel, who is married and has six children. No, said Johnson, because the dispute is not over the definition of marriage; the dispute is over "who is allowed to participate" in marriage.
"If same-sex couples are allowed to marry, my marriage will not be affected at all," said Johnson. "They will operate under the same sex of laws."
"Why would three people being married affect your marriage?" asked Justice David Wiggins, who is married and has three children.
"It won't," said Johnson. "But they would have to have completely different rules" than two-person married couples. Married couples with three or more parties, he said, would have "unique problems that would require a new array of statutory and case law." Laws regarding consent, inheritance, custody, and paternity, he said, could not be applied to multiple-party marriages the way the can be applied to two-person couples.
Kuhle relied heavily on arguments frequently used by other states to justify a ban on same-sex marriage: to create a stable environment for procreation and to provide an "optimal" family environment for children.
"How does a father teach a girl to be a woman?" asked Kuhle. "How does a woman teach a boy to be a man? It's ideally done by a person of the same gender."
Appel questioned that justification, noting that Iowa allows sex offenders and "deadbeat dads" to marry.
"That's not optimal for children either," he said. "Can we say that sex offenders can't marry?"
"I don't think so," said Kuhle. "It would be intruding on their basic fundamental rights … and would set a terrible precedent."
Kuhle also argued that same-sex couples who use medical insemination are "depriving their children of the right to know who their biological parents are." To that, Chief Justice Marsha Ternus, the first woman to serve as the Iowa Supreme Court's top justice, noted that some opposite sex couples use that means of conception, too. And Wiggins added that the state's adoption laws provide for keeping biological parents' identity from adopted children.
The case, Varnum v. O'Brien, originated with six same-sex couples in Polk County, Iowa—including Kate and Trish Varnum—who sought but were denied marriage licenses by the county registrar, Tim O'Brien. The lawsuit, filed in 2005 by Lambda Legal Defense and Education Fund, challenged a state law banning same-sex marriage in 1998.
A state district court judge ruled on behalf of the couples last year but delayed enforcement of the ruling until the state supreme court weighed in. ( One gay male couple was able to obtain their marriage license before that suspension went into effect. )
Eight other state supreme courts have considered similar challenges to same-sex marriage bans during the past four years and the results have been split. New York, New Jersey, Maryland and Washington have found them constitutional. Massachusetts, Connecticut, California and Vermont have found them unconstitutional. Vermont punted its ruling into the state legislature, which create civil unions; California voters amended that state's constitution last month to escape its requirement for equal protection for same-sex couples. Only Massachusetts and Connecticut currently issue marriage licenses to same-sex couples.
Although a new Democratic majority in the New York State Senate was supposed to dramatically improve the chances that the legislature would, after many years of trying, finally take up a pro-gay marriage bill this year, those plans suddenly stalled last week amidst reports that the new leadership was getting cold feet. But Washington, D.C., City Councilmember David Catania, who is gay, said he will introduce legislation next month to legalize same-sex marriage there.
Meanwhile, a Newsweek magazine poll of 1,006 adults nationwide Dec. 3-4 found that 55 percent believe there "should be" "legally-sanctioned gay and lesbian unions or partnerships, but only 39 percent believed there should be legally-sanctioned gay and lesbian marriages. And a Harris Interactive poll of 2,008 adults nationwide November 13-17 found that 47 percent favor allowing gay and lesbian couples to legally marry while 49 percent oppose. When given a choice of whether to let gay couples marry, form domestic partnerships or civil unions, or have no legal recognition at all, respondents were split—38 percent each—between marriage and other forms of relationships; only 22 percent said there should be "no legal recognition" at all.
©2008 Keen News Service
