Gay marriage goes before Iowa high court this week
By GRANT SCHULTE • gschulte@dmreg.com • December 7, 2008

The Iowa Supreme Court this week will hear a same-sex marriage case that could become a national victory for the gay rights movement or a chance to reinforce Iowa's decade-old gay marriage ban.

Oral arguments on Tuesday will pit six same-sex Iowa couples against Polk County and supporters of the state law that defines marriage as the union of a man and a woman.


The case, Varnum vs. Brien, could make Iowa the first state in the Midwest to legalize same-sex marriage. Other high-court decisions that favor gay rights advocates have come from traditionally liberal coastal states, including California, Massachusetts and Connecticut.

"This is the heartland of America - a place where family values are revered," said University of Iowa law professor Angela Onwuachi-Willig, who has signed a court brief supporting gay-marriage rights. "It would be an incredibly strong signal for the Iowa Supreme Court to find that same-sex marriages are legal."

Yet a ruling that upholds the Iowa Defense of Marriage Act would amount to a major setback for the gay rights movement, and a victory for social conservatives who argue that same-sex marriage threatens traditional families.

The couples, financed by a national gay and lesbian rights group, filed their lawsuit in 2005 after the Polk County recorder denied them marriage licenses. Last year, Polk County district Judge Robert Hanson declared the marriage ban unconstitutional and ignited a legal fire storm. Hanson later suspended his ruling until the Iowa Supreme Court decides the case.

Camilla Taylor, senior legal counsel for the national gay-rights group Lambda Legal, which helped bring the case, said the couples who filed the lawsuit are optimistic they will prevail.

The Iowa high court, she said, has traditionally led the nation on civil rights issues. For instance, she said, the court eliminated a ban on interracial marriage more than a century before the U.S. Supreme Court declared such laws unconstitutional.

"This is not even a close constitutional call," Taylor said. "If you examine the law in other states, the case law in Iowa is at least as strong, if not stronger. The Iowa Supreme Court has made it clear from its inception that the law includes broader guarantees of equality than federal law.

"We've been working for years now with couples asking for the right to marry," she added. "There comes a point at which you can no longer tell people they need to hold off."

Among them is Kate Varnum, who lives in Cedar Rapids with her partner, Trish Varnum. Trish changed her last name two years ago, Kate said, and the couple celebrated their partnership in a commitment ceremony in 2004. But they still would like to marry to declare their love, she said.

"We hope that day comes sooner than later," Kate Varnum said. "I think Iowa has been ahead of the curve on civil rights. I'm proud to live here. I think Iowans are very fair minded."

Conservative activists say the case belongs in the Iowa Legislature, not the courts.

"We're hopeful and optimistic" that the court will uphold the ban, said Brian English, a spokesman for the conservative Iowa Family Policy Center. "Iowa's law is very simple. We have 150 years of history in the state for the court to side with. The state's Defense of Marriage Act was designed to mirror the federal law, and that law has survived judicial review."

Assistant Polk County Attorney Michael O'Meara, one of two attorneys who will argue for the county, said ethics rules prevented him from discussing the matter.

But in a legal brief, co-counsel and assistant Polk County attorney Roger Kuhle wrote that Hanson's ruling had "redefined marriage in Iowa."

The marriage law "is consistent with the history and tradition of the state of Iowa and the nation and cannot be heard to shock the conscience or offend traditional notions of fairness or be offensive to human dignity," Kuhle wrote. Upholding the ban "will not destroy liberty and justice."

Doug Napier, senior legal counsel for the conservative Alliance Defense Fund, said he and several other attorneys planned to attend the hearing to field media questions about the case.

"The attempt to use the courts to do the bidding of a small activist group is, I think, offensive to Iowans," he said.

Most Iowa Supreme Court rulings take two to six months to deliver after oral arguments, Iowa Judicial Branch spokesman Steve Davis said.

The high court acknowledged the case's high profile last week by extending the length of oral arguments and creating a special Web page for the case at www.judicial.state.ia.us/Supreme_Court/. Such decisions are rare and generally reserved for complex cases, Davis said.

Davis said each side will receive 30 minutes to present arguments, instead of the usual 10 minutes. Polk County, which asked the Iowa Supreme Court to review the case, will then get a 15-minute rebuttal.

The debate in Iowa harks to a broader national struggle over same-sex marriage. Forty-one states have statutory gay-marriage bans, and 30 have defined marriage in their constitutions, according to the National Conference of State Legislatures.

Oral arguments in the Iowa case come little more than a month after California voters approved Proposition 8, a ballot measure that limited marriage to a man-woman union in the state constitution.

Amending the Iowa constitution is much more difficult, legal experts say. Amendments require simple-majority approval of the Iowa House and Senate during two consecutive general assemblies, followed by a simple majority of voters in the next general election. If the court filed its decision early next year, the earliest that a proposed marriage amendment could reach voters is November 2011.

A statewide poll in October found that 28 percent of Iowans support same-sex marriage, and 30 percent would back civil unions. But support for same-sex marriage would increase if the Iowa Supreme Court declares it legal, according to a Big Ten Battleground poll conducted Oct. 19-22. The margin of error was plus or minus 4 percentage points.

Gay-rights advocates have avoided the federal courts because marriage law is largely a state issue, said Jane Schacter, a Stanford University law professor who followed California's gay-marriage case. Advocates also worry that the right-leaning U.S. Supreme Court could deliver an unfavorable ruling, she said.

Iowa might have been an appealing target, Schacter said, because of the state court's roster, public opinion polls, and the long process required to enact a constitutional amendment.

"All of these cases are being watched very, very closely," Schacter said. "There's not a rush to get a national resolution. There has been a lot of coordination on both sides, because it's proceeding state-by-state."

The lawsuit includes David Twombley and Larry Hoch, a couple from Urbandale who say they would like to marry after nearly eight years together. The retired teachers said they are hopeful Iowa's high court will overturn the gay marriage ban.

"To me, it's been very humbling," Twombley said. "We've been overwhelmed with the support we've received."

Hoch cast the court battle as another step toward civil rights nationwide.

"This is inevitable," he said. "I firmly believe that it will happen."



Gay-rights groups brace for heavy attention

State court administrators and a local gay-rights group anticipate such heavy interest in the Iowa Supreme Court same-sex marriage case on Tuesday that they have taken special steps to accommodate large crowds.

The Iowa Judicial Building will open separate rooms for an overflow crowd during oral arguments. Seating for the hearing is limited to approximately 80 seats in the courtroom and 48 seats in a separate auditorium, said Iowa Judicial Branch spokesman Steve Davis.

Court administrators plan to assign spots on a first-come, first-served basis. Visitors must request a seat in person the morning of the hearing, Davis said.

Court administrators also plan to stream the oral arguments live on their Web site, www.judicial.state.ia.us/Supreme_Court/.

One Iowa, a Des Moines-based gay rights group, also plans "watch parties" at the Des Moines Public Library, the Iowa City Public Library and the Iowa State University Memorial Union in Ames, said campaign manager Brad Clark.

The gatherings, which run from 9:45 a.m. to 11:30 a.m., are partly designed to avoid overcrowding at the court building, Clark said.

One Iowa and Lambda Legal also plan to host town hall forums later in the week in Cedar Rapids, Davenport, Sioux City and Council Bluffs. Details are available at the One Iowa Web site, www.oneiowa.org.

Justin Uebelhor, a One Iowa spokesman, said the forums were designed to educate the public about gay marriage.

"We're working really hard to educate people across the state on marriage equality," he said. "That's where our focus is. We're going to continue these forums after the case."

— Grant Schulte



Married couple plan to be in courtroom

Tim and Sean McQuillan, the two young men from Ames who in 2007 became the first and only same-sex couple to be legally married in Iowa, plan to watch Tuesday’s oral arguments in person.

Both hope the Iowa Supreme Court will uphold the lower-court ruling that made their marriage possible. Both have the same rationale for optimism: that Iowa has a strong tradition of upholding civil liberties, and that the state Supreme Court comes down on the side of equality and fairness.

“No matter what happens, it’s a civil rights issue,â€