Defending Marriage
Activist Judge in Iowa Rules State DOMA Law Unconstitutional; Marriage Law Foundation Aims to Intervene
By Dennis Durband, UFI's Director of Publications
August 31, 2007
A district court judge in Iowa on Thursday ruled the state's Defense Of Marriage Act “unconstitutional” and opened the way for same-sex “marriages” in Polk County, the state's most populous county. The same judge stayed his ruling today, but the matter shows once again the need for an umbrella of protection for marriage in the form of a federal constitutional amendment.
District Judge Robert Hanson on Thursday ruled the state Defense of Marriage Act denies due process and equal protection. He said, "Couples, such as plaintiffs, who are otherwise qualified to marry one another may not be denied licenses to marry or certificates of marriage or in any other way prevented from entering into a civil marriage ... by reason of the fact that both persons comprising such a couple are of the same sex."
Polk County Attorney John Sarcone promised an appeal to the Iowa Supreme Court. Earlier today, Judge Hanson issued a stay on the decision he issued Thursday.
During the U.S. Senate's deliberations in 2004 and 2006 on the Federal Marriage Amendment, opponents registered opposition by disputing the likelihood of the demise of the Defense of Marriage Act (DOMA). Both of Maine 's socially liberal Republican senators used this rationale in their opposition.
Senator Olympia Snowe said in 2004 that the Defense of Marriage Act "protects the rights of states to uphold this same definition of marriage. [The law] has not been overturned by the courts, therefore I believe that a constitutional amendment is unnecessary at this time."
Susan Collins told the Portland, Maine Press Herald on July 15, 2004: "As long as that (DOMA) law is on the books, she said, there is no need to amend the Constitution.”
On the floor of the Senate, several lawmakers argued to the contrary.
Senator Rick Santorum (Republican, Pennsylvania ) said, “just about every legal scholar who has come around has said the Defense of Marriage Act will not stand.”
Arizona Senator Jon Kyl (Republican) in 2006 pointed out a pending legal challenge in Florida to the constitutionality of the Defense of Marriage Act.
“When the Supreme Court of Massachusetts directed the Massachusetts legislature to authorize same-sex marriages, the inadequacy of the Defense of Marriage Act, DOMA, as it is commonly referred to, was exposed,” said Mississippi Senator Trent Lott (Republican).
Not only is the federal DOMA vulnerable, but on Thursday, it became apparent that state DOMA laws are also at risk.
Before the stay, the damage had already been done as 17 same-sex couples obtained marriage licenses. A judge signed a waiver to the three-day waiting requirement, allowing two homosexual men to “marry” Friday morning. Had the decision not been stayed, there would have been a circus atmosphere with homosexual couples rushing to Polk County for marriage licenses – similar to what happened in San Francisco a few years ago when the mayor illegally permitted the granting of marriage licenses to same-sex couples.
Defenders of traditional marriage said the ruling raises the need for a state constitutional amendment. Amendments to the Iowa Constitution must win approval by simple majorities in the state House and Senate in two successive sessions of the legislature and then win approval by a simple majority of voters in the next general election.
State marriage amendments are important, but they do not solve the overall problem of regional challenges to marriage laws. Only an amendment to the U.S. Constitution can protect marriage adequately.
UFI's colleague in the defense of marriage, the Marriage Law Foundation, is planning to intervene in Iowa.
Bill Duncan, executive director of the Marriage Law Foundation, said, “We will issue an opinion and try to get a reversal. The Iowa Legislature had considered this issue before, but a marriage amendment got hung up because there wasn't the political will to act. This ruling dramatically changes things. A January marriage amendment will be more likely.”
Duncan estimates it will be two months before the Iowa Supreme Court announces when it is going to take the case. He believes an amicus brief submission is the only option for involvement by the Marriage Law Foundation.
“This gives us a chance to say something constructive,” Duncan said. “This is the biggest case we've had since the ongoing California case.”
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