Same-sex marriage in Iowa

The Varnum v. Brien court case

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The case before the Superior Court:

At various dates from 2005-NOV-23 and 2006-JAN-24, six same-sex couples attempted to obtain marriage licenses from the defendant Timothy J. Brien, Recorder for Polk County, IA. This is the county where the state capital Des Moines is located. All met age, consent, competency and degree of consanguinity requirements. All were refused solely because they are of the same gender.

Lambda Legal sued the state on their behalf. According to their lawyer, Dennis Johnson, Iowa has a long history of aggressively protecting civil rights in cases of race and gender. ₁

The plaintiffs have been in loving committed relationships for 5, 5, 6, 9, 9, 16 years. Two of the plaintiff couples have children; one plans to have children, and two couples are licensed foster parents and intend to adopt in the future .

County Court ruling:

Polk County Judge Robert B. Hanson of the Fifth Judicial District of Iowa was faced with two conflicting requirements regarding the gender of persons eligible for marriage in the state of Iowa:

• Section 595.2 of the Iowa marriage act states that:

  "Only a marriage between a male and a female is valid." ₂

• The Iowa Constitution:
  • Section 1 states that:

    Rights of persons: "All men and women are, by nature, free and equal, and have certain inalienable rights--among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness." ₃
     

  • Section 6 states that:

    Laws uniform. All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens." ₃
     

  • Section 10 states that:
    
    Right of trial by jury--due process of law. "The right of trial by jury shall remain inviolate; but the general assembly may authorize trial by a jury of a less number than twelve men in inferior courts; but no person shall be deprived of life, liberty, or property, without due process of law." ₃

The marriage act definitely excludes two persons of the same sex from marrying. But the Section 1 of the Constitution states that men and women are, "by nature ... equal." Further, they are guaranteed the right to pursue and obtain "safety and happiness." Marriage brings hundreds of state benefits and obligations to a couple, many of which increase their safety and security. They are guaranteed the right to visit their spouses in a hospital, of making certain health decisions for their spouses, of inheriting property, etc. Certainly, loving committed couples who seek to be married are motivated, in part, by a desire to increase their happiness together. Numerous surveys have shown that married individuals have a longer life expectancy than single people.

Section 6 is commonly referred to as an equal protection clause. It would seem to require that all couples be treated equally, assuming that they meet reasonable expectations -- like being 18 years of age or older, and without any consanguineous factor. In Iowa, for example, brothers and sisters cannot marry.

Section 10 is commonly called a due process clause. It states that no person can be deprived of life, liberty or property without due process of law. A case can be made that this clause prevent the state from denying marriage to a couple without a sound reason. It should be noted that in Lawrence v. Texas, the U.S. Supreme Court decided that a state cannot prohibit an activity merely because most citizens regard it as immoral.

Since a state constitution takes precedence over a simple state law, it would appear that the judge had no option but to declare Section 595.2 of the marriage act unconstitutional.

Judge Robert Hanson determined that the the section of the state marriage law that restricted marriage to opposite-sex couples violated the constitutional rights of due process and equal protection. ₄ He determined that the plaintiffs cannot be denied licenses to marry or marriage certificates or:

"... in any other way be prevented from entering into civil marriage pursuant to Iowa Code Chapter 595 by reason of the fact that both persons comprising such as a couple are of the same sex." ₅

Initial impact of the ruling:

On 2007-AUG-30, he ordered the Polk County Recorder's Office to process marriage licenses for the twelve plaintiffs, and for any additional same-sex couples that match the other requirements of the act. Same-sex couples were free to go to Polk County in central Iowa and apply for marriage licenses. ₃ This situation continued until partway through the next day. After a rush by many same-sex couples applying for marriage licenses, Judge Hanson issued a stay to his own ruling.

Although dozens of same-sex couples applied for marriage licenses, only one was able to actually be married. Two university undergraduates filled out the application for a marriage license in Polk County, paid five dollars to waive the normal three-day waiting interval and found a judge to authorize the waiver, They were married by a minister of the First Unitarian Church of Des Moines on his front lawn. The couple's family members and more than a dozen reporters were present. Less than an hour after the couple received their license, Judge Hanson initiated the stay. ₆

However, this one couple did manage to be married. It now depends upon the decision of the state Supreme Court whether they will be forcibly divorced against their will.

Excerpts from Judge Hanson's ruling:

• "...Plaintiffs, their relationships and their families are stigmatized and made more vulnerable in comparison to heterosexuals. Through the marriage exclusion, the State devalues and de-legitimizes relationships at the very core of the adult Plaintiff's sexual orientation and expresses, compounds and perpetuates the stigma historically attached to homosexuality, for them and all gay persons."
• "Plaintiffs 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 are not recognized at all."
• The children of the "...Plaintiffs are subjected to the historical stigma of 'illegitimacy' or 'bastardy' which, though of diminished social and legal force, is still a status widely considered undesirable."
• "Without access to the institution, familiar language and legal label of marriage, Plaintiffs are unable instantly or adequately to communicate the depth and permanence of their commitment to others, or to obtain respect for that commitment, as others do simply by invoking their married status."
• "Plaintiffs' inability to marry their chosen partners is a painful frustration of their life goals and dreams, their personal happiness and their self-determination."
• "...Iowa reserves an unparalleled array of rights, obligations and benefits to married couples and their families, privileging married couples as a financial and legal unit and stigmatizing same-sex couples."
• "as a result of their exclusion from marriage, Plaintiffs and their children or future children may be denied the full benefit of laws that determine custody, visitation, child and spousal support, and parentage."

He concluded:

• "Because Section 595.2(1) [of the Iowa marriage act] violates Plaintiffs' due process and equal protection rights for the aforementioned reasons including, but not limited to, the absence of a rational relationship to the achievement of any legitimate government interest, the Court concludes it is unconstitutional and invalid. Couples, such as Plaintiffs, who are otherwise qualified to marry one another many not be denied licenses to marry or certificates of marriage or in any other way prevented from entering into a civil marriage pursuant to Iowa Code Chapter 595 by reason of the fact that both persons comprising such a couple are of the same sex."
  
  "Section 595.2(1) must be nullified, severed and stricken from Chapter 494 and all remaining provision of Chapter 595 must be read and applied in a gender neutral manner so as to permit same-sex couple to enter into a civil marriage pursuant to said chapter." ₄

The full ruling is worth reading because of its completeness an accuracy with which it deals with the plight of same-sex couples who are prevented from marrying. ₄

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

1. David Pitt, "Judge Strikes Down Iowa Gay Marriage Ban," Chicago Tribune, 2007-AUG-31, at: http://www.chicagotribune.com/
2. "595.2 Gender-age," About.com, at: http://marriage.about.com/
3. "Article i: Bill of Rights, Constitution of the State of Iowa," at: http://www.legis.state.ia.us/
4. The judge's ruling in Varnum v. Brien is online at: http://www.kcci.com/ This is a PDF file. You may require software to read it. Software can be obtained free from: 
5. "Judge Says Gay Marriage In Iowa OK. County Expected To Appeal Ruling," KCCI, Des Moines, 2007-AUG-30, at: http://www.kcci.com/
6. P.J. Huffstulter, "Iowa's gay marriage ban goes before high court," Los Angeles Times, 2008-NOV-27, at: http://www.latimes.com/

Copyright © 2007 & 2008 by Ontario Consultants on Religious Tolerance
Originally written: 2007-AUG-30
Latest update: 2008-DEC-09
Author: B.A. Robinson

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