Same-sex marriage in Iowa (SSM)

2009: Opposition to the Iowa Supreme
Court ruling legalizing same-sex marriage

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See also an essay on support for the court ruling and notes about the future

The ruling:

One of the functions of a state constitution is to limit the legislative powers of the state legislature. If this is not done, then the tyranny of the majority will result. Without the protection of a constitution, any disliked minority can be deprived of their rights at the whim of the majority. One of the functions of a state Supreme Court is to compare existing legislation with the requirements of the state and federal Constitutions to determine if the law is constitutional. If it isn't, then the Court has the obligation to declare the law unconstitutional. If they did otherwise, they would be violating their oath of office.

The justices of the Iowa Supreme Court ruled unanimously on 2009-APR-04 that the state marriage law is unconstitutional because it violates the clear language of the equal protection clause of the Iowa constitution. This clause requires the state legislature to treat its citizens equally. That means, that if loving committed opposite-sex couples can marry and obtain the 300 or so state benefits of marriage, then loving committed same-sex couples must also be permitted to marry if they wish and can meet age and other requirements.

The Court's ruling stated:

"...  the language in Iowa Code section 595.2 limiting civil marriage to a man and a woman must be stricken from the statute, and the remaining statutory language must be interpreted and applied in a manner allowing gay and lesbian people full access to the institution of civil marriage. _{1, Page 69}

Rejection of the court's rationale by fundamentalist Christian legal experts:

All of these experts must be aware of the requirement of the Supreme Court to declare a law unconstitutional if it violates the state constitution. Yet, none that we could find mentioned this. Instead, they attacked the Court's decision by defending the marriage law, quoting the current level of public opposition to same-sex marriage (SSM), criticized the court for usurping the legislative powers of the legislature, etc. One could imagine similar statements being written in the late 20th century over interracial marriage.

Douglas Napier, senor counsel with the Alliance Defense Fund, a fundamentalist Christian legal action group disagrees. He said:

"The Iowa marriage law was simple, settled, and overwhelming supported by Iowans for 170 years in the history of Iowa There was simply no legitimate reason for this court to redefine marriage." ₂

 One News Now, a fundamentalist Christian news service, wrote:

"Napier asserts that the justices stepped out of their proper role of interpreting the law and have instead created new law. A recent poll, which compares to others, indicates 62 percent of Iowans are against homosexual marriage.

"And it's astounding the Supreme Court would usurp the role of the legislature, put a choke hold on the democratic process, and take that from the people of Iowa and claim to know better," the attorney exclaims. "They don't know better -- and the people of Iowa need to vote on a marriage amendment and put it in place and let the Supreme Court know that they can't speak for them." ₂

Bruce Hausknecht, judicial analyst at Focus on the Family Action, a fundamentalist Christian social action group, said the ruling took his breath away. He said:

"The justices brazenly asserted that their role was not only to redefine marriage, but also to legislate whatever new social agenda they favored, 'free from the influences' of a society resistant to such change. Such an admission is breathtaking in its arrogance and scope." ₃

Finally we found the comments by Mat Staver, founder of Liberty Counsel -- a fundamentalist Christian legal defense group. He is also dean of Liberty University's Law School. He came closest of any conservative commentator to mention the role of the Supreme Court to rule on the constitutionality of laws. He seems to have used the phrase "calling balls or strikes" in place of "ruling the law constitutional or unconstitutional." said:

"These activist judges are no more than proselytizing engines of social change. That's not the role of a judge. They are to be umpires merely calling the balls or strikes. They don't rewrite the definition of marriage. ... And they do not go against the will of the people." ₂

Staver seems to believe that they are supposed to compare existing legislation with the beliefs and prejudices of the public, and declare laws unconstitutional any time that public opinion is opposed. If that were true, then there are many minorities across the country that are in danger of losing fundamental civil rights. One wonders exactly what the Law School at Liberty University teaches about the role of state supreme courts.

Reactions from individuals and other groups opposed to marriage equality:

A leader of the Republicans in Iowa, State Senator Paul McKinley, indicated his displeasure at the Supreme Court's decision. He wrote: "The decision made by the Iowa Supreme Court today to allow gay marriage in Iowa is disappointing on many levels. 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." 4

The statement seems confusing, because the court has not changed "traditional marriage" -- that is the marriage of one woman to one man -- one iota. It will continue to be recognized in Iowa. The only change is a simple addition: same-sex couples will also be able to marry.

He added: "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."

This comment raises three concerns:

	Do the people of Iowa really want a revision to the state constitution that identifies a group of Iowans by sexual orientation,  removes some of their rights and privileges, and makes them second-class citizens?
	The reference to "sacred bond" seems to assume that the only valid marriages are those solemnized in a religious setting. Are civil marriages going become unavailable?
	Is it ethical to make human rights dependent on majority opinion. One of the purposes of a state constitution is to reduce the likelihood of the "tyranny of the majority." Should the rights and privileges of a group be removed because of bias on the part of 50% of the voters plus one person? If so, then homosexuals and bisexuals would lose rights this time around. But Atheists, Agnostics, Jews, other non-Christians, blacks, women and other traditionally discriminated-against people might be the next targets for persecution.

The Family Research Council is a fundamentalist Christian advocacy group. They wrote:

"After watching from a distance as the marriage debate ignited on both coasts, Iowans were horrified today to see the battle marched directly into their backyards. This morning, seven unelected judges unanimously struck down the state's 1998 Defense of Marriage Act (DOMA), forcing same-sex marriage ₅ on the people of Iowa in a stunning act of judicial tyranny. ..." ₆

"... Iowa now has the dubious distinction of being the first Midwest state to legalize counterfeit marriage. In three weeks, when the decision officially takes effect, the Hawkeyes will join Massachusetts and Connecticut as the only states that allow same-sex partners to apply for marriage licenses." ₆

U.S. Rep. Steve King, (R-Kiron) helped write Iowa's 1998 Defense of Marriage Act (DOMA) while he was a state senator in the Iowa Legislature. He said: "Our worst fears have been realized. ... It turns Iowa immediately into the Mecca for same-sex marriages -- a destination state. ... There will be weekend packages that are being planned right now. It will be the Las Vegas of same-sex marriage for America if the Legislature doesn't act now." 7 We suspect that other Iowa politicians are overjoyed about the potential new source of tourism in the state, and that money spent on weddings will bolster the state economy. It is unclear how the legislature can "act now" to roll back the state Supreme Court decision allowing marriage equity. They could attempt to change the constitution to specifically discriminate against same-sex couples, and perhaps even forcibly divorce them, remove hundreds of rights and protections from the couples, change the status of their children to illegitimate, etc. But that would take years to implement.

This list of negative responses to the court ruling on same-sex marriage (SSM) continues elsewhere

References used:

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

1. Full opinion, Case # 07-1499: Katherine Varnum et al. & Timothy Brien, at: http://www.desmoinesregister.com/ This is a PDF file.
2. Associated Press and Charlie Butts, "Iowa court: Ban on same-sex 'marriage' unconstitutional," One News Now, 2009-APR-03, at: http://www.onenewsnow.com/
3. Ed Donahue, Associated Press video, 2009-APR-03, at: http://www.onenewsnow.com
4. "Iowa Court Says Gay Marriage Ban Is Unconstitutional," New York Times, 2009-APR-03, at: http://www.nytimes.com/
5. In the press releases of the Family Research Council and Iowa Family Policy Center ACTION, the authors enclosed the word marriage in "quotation marks." This is common among religious and social conservatives who refuse to recognize SSM as a valid form of marriage. We deleted the quotation marks because we felt they are disrespectful to loving, committed, married same-sex couples and their families. The quotation marks may be a useful indicator for future reference. If the quotes are dropped, the battle over SSM may well have been decided.
6. "Marriage Takes a Hit in the Heartland," Family Research Council mailing, 2009-APR-03.
7. Rod Boshart, "Court allows gay marriage in Iowa," Sioux City Journal, 2009-APR-04, at: http://www.siouxcityjournal.com/

Copyright © 2008 to 2010 by Ontario Consultants on Religious Tolerance
Originally written: 2008-APR-03
Latest update: 2010-NOV-07
Author: B.A. Robinson

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