As Iowa Supreme Court Steps In, What Next?

Appeared in Gay City News, September 6-12, 2007

For roughly 18 hours last week in Des Moines, gay and lesbian couples felt the pulse of freedom that their New York City counterparts had yearned for in the spring of 2005, when Manhattan Supreme Court Justice Doris Ling-Cohan ruled in favor of same-sex plaintiffs here in a marriage equality lawsuit at the district court level.

Polk County, Iowa, Judge Robert B. Hanson, like Ling-Cohan, ruled for six plaintiff couples, and when he announced his decision on August 30 he issued no delay pending appeal. Ling-Cohan stayed the effect of her ruling for 30 days, and when Mayor Michael Bloomberg promptly appealed, that delay became permanent until the matter was resolved at New York's highest c

In Des Moines, the County Recorder and Registrar was under order to begin issuing marriage license applications immediately. As Polk County filed a motion to stay Hanson's ruling pending appeal to the Iowa Supreme Court, it became a race between gay and lesbian couples rushing for licenses and the timing of a judicial response to the motion.

Polk County officials assumed they had a three-business-day leg up, in light of the waiting period mandated in law before couples with a license can wed. But they did not count on the resourcefulness of Sean Fritz, 24, and his 21-year-old boyfriend Tim McQuillan, both students at Iowa State University in Ames, who had met via Facebook.com.

According to the Des Moines Register, Fritz moved fast Thursday afternoon once he learned of Hanson's ruling. After calling McQuillan's mother to ask for her son's hand, he dashed over to the campus computer lab and proposed to Tim, who had not yet learned of the legal victory.

Arriving the next morning at the Polk County offices before 8 a.m., the couple got their license and shrewdly spent an extra $5 on a waiver form that would free them from waiting three days. But, they still needed a judge's signature, so they next headed to the County Courthouse, where another district judge, Scott Rosenberg, agreed to their request.

The couple's next several hours, according to the Register, were spent hotfooting around Des Moines looking for a member of the clergy to officiate at their wedding. Though neither man is Jewish, they first tried a synagogue, but upon learning the rabbi was out, they quickly settled on a Unitarian minister, who married them in his back yard. With TV cameras in tow by this time, Fritz and McQuillan headed back to the County building and filed their marriage certificate at around 10:45.

Roughly 45 minutes later, Hanson acceded to the Polk County motion to stay his own ruling. Twenty-six other gay and lesbian couples applied for marriage licenses in a window that last less than a full day, but none will have the chance to wed legally at least until the issue is resolved in the state Supreme Court, a process that could last until 2009.

Thousands of weddings performed in San Francisco after Mayor Gavin Newsom gave the go-ahead in 2004 were later overturned by the California Supreme Court, and Bloomberg, in appealing Ling-Cohan's ruling, said high court resolution of the issue in New York State was necessary before any weddings took place to avoid the same "confusion" from taking place here.

For now, Fritz and McQuillan have a legally registered marriage, and when queried this week on the status of their union, Lambda Legal, which represented the plaintiff couples in Iowa, responded flatly, via e-mail, "Sean and Tim are married. Period."

For all the other same-sex couples who wish to get married in Iowa, the near-term future is less certain. Polk County's appeal of Hanson's August 30 decision goes to the Iowa Supreme Court, which can either hear arguments itself, or first assign the case to an intermediate level appellate court. In New York and New Jersey, marriage cases went through all three levels of state courts. In contrast, in Massachusetts, where the lawsuit failed at the district level, the appeal went immediately to the Supreme Judicial Court, where gay marriage won.

The other great unknown involves the politics of the issue.

Hanson, in ruling for the plaintiffs, overturned a 1998 Defense of Marriage statute passed in the wake of the 1996 federal DOMA. The issue of same-sex marriage has never been the subject of a constitutional amendment fight in that state.

As in Massachusetts, where the effort to overturn the 2004 marriage victory through amendment has been rebuffed several times, the Iowa Constitution can only be amended if the State Legislature approves a ballot question by a simple majority in each of two successive biennial sessions. So, even if an amendment got legislative approval in the session that runs through the end of 2008, it would need to be approved again in the 2009-2010 session and would only reach voters in November 2010, presumably after the state Supreme Court rules.

The Legislature's mood is uncertain.

The Democrats hold narrow majorities in both the Senate and House, and the governor, Chet Culver, is also a Democrat. Not surprisingly, it was the Republicans who moved to heat up the debate.

"I can't believe this actually happened in Iowa," said the House minority leader, Chris Rants, a Sioux City Republican, as he vowed to press the case to protect the state DOMA in the Iowa Constitution. "What it means is that one person has decided they know better than the whole Legislature."

Meanwhile Culver acted quickly to douse any immediate wildfire, pledging "to follow this matter closely as it continues through the judicial system before determining whether any additional legislative actions are appropriate or necessary." Des Moines Democrat Kevin McCar­thy, the House majority leader, urged his fellow legislators to "take a deep breath and calm down."

The Democrats are the ones in the trickier political spot. While Culver last week reiterated his view that marriage is between a man and a woman, the state party itself is on the record in favor of marriage equality. So Democrats are likely to use their control of the Legislature to block any vote from happening at all, seeing it as a no-win proposition for themselves.

One Iowa, the state's marriage equality advocacy group, however, was unwilling to handi­­cap the landscape in the state capital so soon after the Hanson ruling. As the group works to gauge the current temperature, it continues its efforts with Lambda on a series of community briefings designed to educate members of the LGBT community on the marriage drive while drawing media attention across the state.

That strategy proved effective in mobilizing the community and winning editorial support when Lambda employed it in advance of last year's New Jersey Supreme Court ruling. According to Steven Goldstein, who heads up Garden State Equality, that groundwork was invaluable in keeping the push for full civil marriage alive in the wake of the Legislature's decision to opt for only civil unions when faced with a high court mandate last fall.

In the next week alone, One Iowa and Lambda plan meetings in Des Moines, Sioux City, and Iowa City.

©GayCityNews 2007