Sunday, March 2, 2014

Nearly Five Years of Gay Marriage in Iowa and the GOP Still Wants to Annul Us!

On April 3rd, it will be the fifth anniversary since the Iowa Supreme Court ruled on the Varnum v. Brien case and unanimously struck down the state's DOMA law. On April 27th, it will be the fifth anniversary since same-sex couples finally began legally marrying each other in Iowa.

The Quad City Times published a story today detailing how many same sex couples have married in this state since 2009. It's possible that some of these numbers are actually higher, since one is not required to record their gender on marriage license applications:
2012 – 1,247 marriages
2011 – 1,302 marriages
2010 – 1,594 marriages
2009 – 1,783 marriages
Nearly 6,000 same-sex couples have legally married in this state over the past five. Many are homegrown. Many others come from other states.

Iowans were warned about pastors being jailed and churches being shuttered over opposition to gay marriage. We were warned that kindergartners were going to be educated about gay sex acts. We were told that the state would suffer if same-sex marriage was allowed to happen. And then we were warned that the stage would suffer if same-sex marriage was allowed to continue.

But things have been okay. Pastors continue to avoid jail despite public opposition to homosexuality and gay families. Churches routinely avoid hosting any wedding that they don't want to host. Heterosexuals continue to get married to each other and their kids are doing fine. The only difference now is that gay and lesbian families are now protected by the rights, responsibilities, and benefits of marriage.

Sadly, there is one additional thing that hasn't changed over the past five years. The Republicans and Iowa's culture war social conservative leaders are still fighting to eliminate same-sex marriage in Iowa:
“As you know, battles like this ebb and flow,” said Chuck Hurley, president of the Iowa Family Policy Center... The group is part of the Family Leader organization, which led recall efforts to remove Iowa Supreme Court judges in 2010 and 2012. They were successful the first year, but not two years latter... He said the pendulum will swing back in favor of traditional marriage, permanently. “We have thousands of years of tradition and teaching over all the major faiths,” he said...

At 8:20 a.m. on Feb. 4, state Rep. Dwayne Alons, R-Hull, sent an e-mail to his fellow Republicans. “I have another version of the marriage amendment that adds the word ‘natural’ before ‘man’ and ‘woman.’ This is for your consideration to support traditional marriage, which is in our platform and keep it before the people in this election year,” his email began. It ended with a note that the legislation was on his desk if anyone wanted to sign. “I think I finally had 13 or 14,” Alons said last week.

He admitted it’s a different feeling now from 2011 when the House held open hearings on a constitutional amendment to ban same-sex marriage and all of the then-60 GOP members signed the legislation.
Social conservatives argue that gays and lesbians are trying to destroy the institution of marriage based on the fact that we are trying to get married. So their solution is to destroy the institution of marriage -- at least the marriages of same-sex couples like myself and my husband. It's a frustrating disconnect.

But it's also an exciting milestone! One I'm sure we will see much celebration soon!


Philip Chandler said...

How incredibly sad it is that some Republicans are so hide-bound and so caught up in dogma that they are not prepared to change their attitudes relative to a concept which now enjoys substantially more than a 50% approval rating nationwide. But take heart -- since the US Supreme Court handed down US v. Windsor, 570 U.S. ___ (2013), the total number of states in which gay marriage has been legalized now stands at 17 (plus the District of Columbia). US Constitutional challenges to state statutes and state constitutions prohibiting gay marriage have been successful at the US District Court level in Kentucky, Utah, Texas, Virginia, South Carolina, and at least three other states. This means that the US Courts of Appeals for the Fourth, Fifth, Sixth, Eighth, Ninth, and Tenth Circuits will all soon have to adjudicate the constitutionality of such prohibitions in a post-Windsor world. Thankfully, Justice Antonin Scalia (who wrote the dissent in Windsor) has shown them the way, as certainly as though he were sitting on one of the Circuit panels wishing to affirm.


Philip Chandler said...

Reading Justice Scalia's dissent in Windsor, it becomes clear that he has actually provided a blueprint for any party wishing to challenge Section 2 of DOMA (forcing states which do not perform gay marriage to accept the legitimacy of gay marriages performed in states which do perform gay marriages). More importantly, however, he has furnished us with the ammunition necessary to seek the legalization of gay marriages everywhere, by going a long way towards arguing along equal protection grounds that the denial of marriage as an option to gay couples, but not to straight couples, violates the Fourteenth Amendment's Equal Protection Clause.

At minimum, the state must be able to show (or even merely posit) the existence of a rational relationship between its behavior and a legitimate state interest (this is the gravamen of mere rational basis review). The burden falls upon the plaintiff to demonstrate the lack or a rational relationship and / or the lack of a legitimate state interest if the constitutional challenge is to succeed. In Windsor, Scalia quite correctly pointed out that

"[t]he majority concludes that the only motive for this Act was the "bare . . . desire to harm a politically unpopular group." Ante, at 20. Bear in mind that the object of this condemnation is not the legislature of some once-Confederate Southern state (familiar objects of the Court’s scorn, see, e.g., Edwards v. Aguillard, 482 U. S. 578 (1987)), but our respected coordinate branches, the Congress and Presidency of the United States."

Scalia goes on to argue that the majority has telegraphed to the lower courts that equal protection theory may well be the path to adopt when this matter comes back full circle before the Court. So be it. The US Court of Appeals for the Second Circuit has become the first of the US Courts of Appeals to hold that gay men and lesbians constitute a quasi-suspect class for the purposes of equal protection analysis...

All it takes is for one of the US Courts of Appeals to rule in our favor, and the rush to the US Supreme Court will be back all over again.

Thank you, Justice Scalia, for your embittered rant. You have well equipped us with the armor we will need in order to prevail when this issue is decided by the intermediate courts of appeals.