Same-sex marriage in IowaThe 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:
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Section 595.2 of the Iowa marriage act states that:
"Only a marriage between a male and a female is valid." 2
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The Iowa Constitution:
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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
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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
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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:
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"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.
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David Pitt, "Judge Strikes Down Iowa Gay Marriage Ban," Chicago Tribune,
2007-AUG-31, at:
http://www.chicagotribune.com/
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"595.2 Gender-age," About.com, at:
http://marriage.about.com/
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"Article i: Bill of Rights, Constitution of the State of Iowa," at:
http://www.legis.state.ia.us/
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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:
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"Judge Says Gay Marriage In Iowa OK. County Expected To Appeal Ruling,"
KCCI, Des Moines, 2007-AUG-30, at:
http://www.kcci.com/
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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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