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Iowa Long a Leader in Civil Rights; Marriage Equaltiy Advocates Hopeful About State Supreme Court Case

by Kilian Melloy
Tuesday Dec 9, 2008

Oral arguments began Dec. 9 in a marriage equality case that has gone before the Iowa state Supreme Court. The fact that the case is being heard in Iowa--with its long tradition of leadership in civil rights--has given heart to gay and lesbian families still shocked at the revocation of marriage parity by majority vote in California last month.

A Dec. 9 article in the Des Moines Register offered a synopsis of the state's history at the forefront of civil rights, from an 1839 ruling that enabled an escaped slave to retain his freedom (nearly two decades before the U.S. Supreme Court's Dred Scott decision trumped the state court's finding) to an 1868 court decision, eight decades in advance of the state court's federal counterpart issuing its ruling in Brown v. Board of Education, that struck down segregated schooling in Iowa.

The article then identified the crux of the case: the claim by the plaintiffs that to deny gay and lesbian couples in Iowa the right to marry is contrary to the Iowa constitution's guarantee of equality under the law.

The Register article quoted from the Bill of Rights section of the Iowa state constitution, which states, "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."

The article also recalled that the court had previously found marriage to be fundamental as a right, though opponents of marriage parity promptly took the stance that only mixed-gender couples should have the opportunity to claim that right.

Not so, countered pro-marriage advocates. Rights are universal to all citizens, and are not dependent upon gender.

Similar arguments brought about marriage equality in Massachusetts in 2004, and in California and Connecticut earlier this year.

Other states have approached the issue from the legislative branch of government, with New York's Assembly having approved a bill to extend marriage equality to gay and lesbian families in that state; the New York senate, until now controlled by Republicans, did not allow the matter to come up for a vote.

And in Vermont, legislators have examined whether the state's eight-year-old, first-in-the-union Civil Unions law is adequate to the needs of gay and lesbian families there, or whether only marriage comprehensively guarantees rights and responsibilities to families.

For other states--thirty of them--quite a different response has met the notion of full-fledged equality for gay and lesbian families.

In every state where a constitution amendment has been put to voters to re-write the basis of state law and pointedly exclude some families from marriage, voters have approved those changes.

Only once, in 2006, did voters defeat such an amendment, and then it was from a fear that the broadly-worded amendment would impact the finances of unmarried heterosexual couples. When the amendment was rewritten so as only to target gay families, and put before Arizona voters once more in 2008, it passed handily.

Only once to date has a state taken the step of granting marriage equality, only for voters to subsequently approve an amendment that would rescind that right; California's Proposition 8 may have set a new legal precedent, or it may be found by the California Supreme Court to have gone too far, revising, rather amending, that state's constitution.

But observers do not believe that Iowans will be faced with a vote on a constitutional amendment even if the Supreme Court there rules in favor of the plaintiffs and strikes down anti-gay-family laws as inconsistent with the current version of the Iowa constitution.

A Dec. 9 article in the Iowa City Press Citizen referenced the University of Iowa's David Redlawsk, a professor of political science, who thought it improbable that such an amendment would clear the state's legislature given its current political makeup.

Moreover, Redlawsk argued that courts as a mirror for general social attitudes. Redlawsk pointed to recent polls that show marriage equality is becoming more widely accepted.

Another tack that opponents may take if the Supreme Court finds in favor of the plaintiffs is to seek a repeal of marriage equality through the state's lawmakers, though any such law runs the risk of being struck down under the same equal protection clause upon which the current case turns.

But Iowa's judicial legacy, and the reputation it has given the state, play perhaps the biggest role when it comes to trying to guess the outcome.

The Citizen Press quoted Lambda Legal attorney Camilla Taylor, who said, "I don't want to sound presumptuous, but I am optimistic because of the Iowa cases we are relying on."

Taylor is the plantiffs' lead counsel.

Kilian Melloy serves as EDGE Media Network's Assistant Arts Editor. He also reviews theater for WBUR. His professional memberships include the National Lesbian & Gay Journalists Association, the Boston Online Film Critics Association, The Gay and Lesbian Entertainment Critics Association, and the Boston Theater Critics Association's Elliot Norton Awards Committee.


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