Friday, August 31, 2007

Iowa: Yes to Gay Marriage!

Liberty and common sense visited two states yesterday — Iowa and Maine. A district court in Iowa voided the state's DOMA law and ordered issuing of marriage licenses to same-sex couples. Also, Maine's high court ruled for a lesbian couple, and for two foster children they raised for six years, to permit adoption.

These two strongly pro-family rulings show the compassion, humanity and respect of law that has too often been lacking during the recent emotionally driven courts and legislatures recently. I can't call a trend yet, but with the sloth-like western states lumbering toward marriage equality, we may be getting a little filling in our fairness sandwich. (Block that metaphor!)

The Maine one was simple and sweet. The Cumberland County Probate Court tried to duck the same-sex-adoption issue, claiming they had no jurisdiction. In the high-court ruling, the justices unanimously said the normal adoption process applied and ordered it to continue. As an interesting sidelight, a friend of the court brief came from the state's Attorney General Steven Rowe, who argued that prohibiting this adoption would not serve the best interest of the children involved or the Maine adoption law's intent.

Iowa was not a clean. It has/had a DOMA law 595.2(1) simply stating "Only a marriage between a male and a female is valid." While that seems plain enough, it ran afoul in yesterday's decision in conflicting with and contradicting other laws. Specifically, a variety of equal-treatment laws require legal fairness.

We saw that as the basis here in Goodridge in Massachusetts, as well as in Canada, where it's Charter of Rights and Freedoms mandated fairness. In all these outcomes and others, courts and in some cases legislatures have decided that no one gets to cross out the homosexual or the woman or another other group and say except for these people.

As usual, the Leonard Link site had the fastest and best analysis. See Arthur Leonard's take here. I suggest that you, if your pardon, cruise the 63-page decision, which is here.

The decision is good reading for several reasons. Not only is it seemingly flawless in its well reasoned findings, it directly confronts underlying issues that spongier decisions in similar cases avoided. Also, the district court system in Iowa could face two levels of appeal and review.

The trial judge, Robert B. Hanson, did not do the usual timorous staying of his ruling, which was:
  1. Plaintiffs' motion for summary judgment is GRANTED and Defendant's opposing motion for summary judgment is DENIED.
  2. Iowa Code §595.2(1) is hereby nullified, severed and stricken from Iowa Code Chapter 595. ..
  3. All remaining provisions of Iowa Code Chapter 595 are to be interpreted in a gender-neutral manner so as not to exclude couples of the same sex from eligibility for a marriage license.
  4. Defendant is hereby enjoined from refusing to issue marriage licenses to Plaintiffs or any other same-sex couples who a) are otherwise eligible for said licenses pursuant to Chapter 595 as amended and interpreted by this order, and b) who properly apply for such licenses.
  5. Court costs are hereby taxed to Defendant.
That's a highly unusual form of judicial clarity. He voided the DOMA wording and ordered issuing marriage licenses. So there.

Of course, it may not be so there. The theater of courts permit but do not require appeals. The district court system (eight districts in the state) is the highest level of trial courts. Above this are two systems, the Court of Appeals and the Supreme Court. Either can consider the ruling and act on it.

My reading of the ruling suggests that Hanson left no room for claiming error. I'm not sure how effective whining by the anti-gay forces might be on an appeal. As Leonard notes, "Before plunging into the factual findings and analysis, Judge Hanson devoted several pages to explaining why he decided to disregard the opinion testimony of several individuals proposed by the defendants and the plaintiffs as 'expert witnesses.'"

For example, he did not allow generalization by Ph.D. types out of their fields. With a refreshing clarity, Hanson writes (page 7 of his decision), "The views espoused by these individuals appear to be largely personal and not based on observation supported by scientific methodology or based on empirical research in any sense. They do not meet the criteria for admission of expert testimony..." Also, the proposed witnesses who would make up conclusions about what they say might happen if homosexual couples could wed were disallowed, as were those who wanted to interject their personal religious beliefs.

This Hanson character must have gotten the courage and honor that so many other judges lack.

On paper, gay Iowans could get a license today and marry next week after the waiting paper. I certainly how some will do just that in the next few hours. Meanwhile, the Polk County recorder, who was defendant can and may well appeal. Such a request would go to the state Supreme Court, which could reject it or send it to the Court of Appeals for consideration.

Beyond this, the state requires a couple-year process to amend its constitution, similar to the Massachusetts process. Any proposed amendment must pass both houses of the legislature in two sessions (two years) before going to the voters. The state senate has already tied on this issue previously and is not likely to pass it, since becoming majority Democratic.

By the bye, the Iowa motto is Our liberties we prize and our rights we will maintain.

Well, if this doesn't pop your corn, I don't know what would.

Afternoon Update: The AP reports that two men married in Des Moines this morning. The stereotype aspect is that it was on the front lawn of the UU minister who performed the ceremony. I had figured that folks would go through the cycle and wait the normal three business days, but Iowa State students Sean Fritz and Tim McQuillan paid the $5 to a judge to accelerate the process. The Rev. Mark Stringer solemnized the marriage. He may not have completed his Toastmaster sessions; he wrapped up with, "This is a legal document and you are married." Meanwhile, Polk County Attorney John Sarcone asked Judge Hanson for a stay of his order pending an appeal. The stay hearing can't occur until after Labor Day.

In the AP/Charlie Neibergall image above, that's from left Fritz and McQuillan. Stringer wears the stole.

Update Update: Hanson didn't wait. That couple may be the only SSM for the time being. Hanson stayed the order at about 12:30 P.M. Eastern Time. No more same-sex licenses can be legally issued pending any appeal, according to a report in the Des Moines Register. Logic says the first couple should be married. Likewise, other licenses issued before Hanson's stay should have effect, but whether a resulting marriage for those would count short term would depend on an interpretation how the stay affected them.

Update Expansion: Per the Iowa City Press-Citizen, about 20 SS wedding licenses were issued before Hanson stayed his order. Polk County Recorder Julie Haggerty said she cannot issue more pending an appeal to the state Supreme Court. The Des Moines Register had a short with quotes from couples who waited, some from 5:30 a.m. for licenses. It included, "Those couples will likely receive a letter next week from Polk County saying their licenses are not valid."

Tags: , , , , , ,

No comments:

UpTweet