Iowa court OKs same-sex marriage

By Lisa Keen

Between The Lines Online

Monday, Sept. 3, 2007

In a state where the nation's eyes are frequently focused this year, a district court judge in Iowa ruled Aug. 30 that the state constitution requires that same-sex couples be allowed to obtain marriage licenses. In doing so, he explained with greater clarity and thoroughness than any previous court decision, why denial of marriage licenses to gay couples "perpetuates the stigma historically attached to homosexuality, for them and all gay persons."

One gay male couple was able to obtain their marriage license in Des Moines on the morning of Aug. 31 and were married just one hour before the state obtained a stay of the judge's order pending its appeal to the state supreme court, according to the Des Moines Register. The couple, Iowa State University students Sean Fritz and Tim McQuillan, are now the only gay couple to be legally married in the U.S. outside of Massachusetts. The Register said 26 other same-sex couples also applied for marriage licenses that morning but were unable to complete the process before the judge postponed enforcement of his order. (The judge's order applies only in the fifth district, which encompasses Polk County and includes the state capital of Des Moines.)

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 from the county clerk, 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.

Following the ruling, the Register reported that Republican state legislators vowed to pass an amendment to the state constitution to ban same-sex marriage.

In a carefully detailed 63-page decision, Judge Robert B. Hanson wrote that denial of marriage licenses to same-sex couples violates the state constitution's guarantees of due process and equal protection, as a matter of law. As a matter of impact, he said, the law which prohibits issuing licenses to same-sex couples stigmatizes gay families, does damage to their dignity, and harms them in "numerous tangible and intangible respects."

"Through the marriage exclusion," wrote Hanson, "the state devalues and delegitimizes relationships at the very core of the [same-sex couples'] sexual orientation and expresses, compounds, and perpetuates the stigma historically attached to homosexuality, for them and all gay persons."

The institution of marriage, wrote Hanson, "is "so woven into the fabric of daily life and so determinative of legal rights and status," that denial of a marriage license "amounts to a badge of inferiority" imposed on gay couples and their children.

Same-sex couples "are continually reminded of their own and their family's second-class status in daily interactions in their neighborhoods, workplaces, schools and other arenas in which their relationships and families are poorly or unequally treated, or not recognized at all."

"It is impossible," wrote Hanson, "for [same-sex couples] by any alternate means to come close to achieving the security and certainty that the law automatically affords to married spouses, nor do [they] have any means to access the countless benefits reserved to married persons and children of the marriage."

"Gay and lesbian persons have the capacity to form and are successful at forming lasting, committed, healthy, and mutually satisfying intimate relationships, just as heterosexual persons do, and which are equivalent to heterosexual relationships," wrote Hanson.

Hanson also noted that about 37 percent of the estimated 5,800 same-sex couples in Iowa are raising children under the age of 18 and that the state's interest in the welfare of this estimated 3,158 children "is as great as its interest in the welfare of any other children."

No presidential candidate changed his or her position on same-sex marriage following the news, but Republicans Mitt Romney, John McCain, and Sam Brownback issued statements criticizing the judge. Romney said the decision illustrates the need for a federal constitutional amendment. McCain said it illustrates the need for strict constructionist judges (who generally do not include gay people as equal citizens because the constitution does not explicitly instruct that gay people be included).

In an unusual move journalistically, the Des Moines Register carried a number of stories explaining to readers that Judge Hanson and the judge who waived a three-day waiting period for the gay male couple that was able to marry last Friday, could be removed from office and explained how and when. The paper ran a photo of Hanson with a caption that said a bishop in his own denomination, Methodist, said it wouldn't be fair to call him a "godless secular humanist." And it ran a story by a "news columnist" who said "God, meanwhile, still believes marriage should be between one man and one woman." The columnist said he had attempted to reach Judge Hanson to discuss how devout he is to his Methodist faith.

Meanwhile, Camilla Taylor, the senior attorney from Lambda Legal who argued the case on behalf of the same-sex couples, said ""This decision recognizes that our clients and thousands of other same-sex couples and their families across Iowa are devoted to each other and want the protections and responsibilities that only marriage can provide so that they can take care of each other."

Only Massachusetts currently issues marriage licenses to same-sex couples, and generally speaking those couples must be residents of Massachusetts or of states that have no law barring same-sex marriage (so far, that has been determined as New Mexico and Rhode Island). A ruling on the issue is currently pending before the Maryland Supreme Court and will soon be argued before the California Supreme Court.

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