To Form a More Perfect Union: Marriage Equality News

Press Release: Indiana University Experts Available for discussions on equal marriage rights

Link: Indiana University News Room.

EDITORS: The following Indiana University Bloomington faculty experts can provide insights into various aspects of gay marriage and the current debate surrounding the issue. These insights are based on their research and interests in constitutional law, religion, gay and lesbian political history, and family structure and sociology.

State constitutions may offer a more likely route to the establishment of same-sex marriage, although the road is fraught with legal and religious complexities, said Daniel O. Conkle, the Robert H. McKinney Professor of Law at IU Bloomington and an adjunct professor in the Department of Religious Studies. Conkle's research addresses constitutional law and theory, religious liberty and the role of religion in American law, politics and public life. One could argue, he said, that the 14th Amendment to the U.S. Constitution, which provides for equal protection under federal laws, should offer protection to same-sex couples who wish to marry. While the U.S. Supreme Court has shown no inclination to interpret the 14th Amendment as requiring that same-sex marriages be allowed, a few state courts have done so when interpreting their own state constitutions, which include provisions analogous to the 14th amendment. Conkle said states have the final say when it comes to state constitutional law, but they cannot change federal law, which defines marriage as being between one man and one woman. The marriage benefits involved would be state benefits, such as inheritance rights and spousal benefits, not federal benefits, such as Social Security or joint income tax filings. An issue likely to arise is whether same-sex marriages performed in one state will be recognized in another state. The debate also raises interesting religious issues, Conkle said. The United States traditionally has placed great importance on the separation of church and state. Yet clergy have been given the authority to marry people, essentially performing a governmental role. There has been significant debate about whether traditional marriage is a product of religious understanding and whether this, on its own, is enough to reject same-sex marriage. Conkle said he has seen traces of a political argument along this line claiming that the religious grounds are not enough, that the argument should be based on secular grounds and that this secular basis does not exist. Conkle can be reached at 812-855-4331 and conkle@indiana.edu.

Gay marriage has not always been a high priority for gay men and lesbians. Interest in gay marriage can be seen as a "feminization" of the gay rights movement, said Elizabeth Armstrong, an assistant professor in the Department of Sociology at IU Bloomington. In the 1970s, young gay men driving the movement cared about issues such as freedom of sexual expression and had little interest in family-related concerns, Armstrong said. Lesbians, who frequently lost custody of children when they "came out," cared about family issues but lacked the power to set the agenda of the nascent gay rights movement. She said a variety of factors have combined to shift the gay movement's priorities. The AIDS epidemic proved to be a harsh introduction to the need for rights provided by marriage. Women gained power within the movement. Lesbians and gay men have aged, and their priorities have turned from sexual exploration to family building. Armstrong described the gay movement as a collection of numerous groups with numerous interests. Gay marriage is not equally attractive to all lesbians and gay men, she said. While some see marriage as the culmination of a lifetime of hopes and dreams, for others it flies in the face of their advocacy of sexual freedom. Armstrong is the author of Forging Gay Identities: Organizing Sexuality in San Francisco, 1950-1994 (University of Chicago Press, 2003), which examines the emergence of lesbians and gays as a cultural and political force in the United States. Armstrong can be reached at 812-856-2063 or elarmstr@indiana.edu.

Gay marriage is inevitable in the United States, said Brian Powell, the Allen D. and Polly S. Grimshaw Professor of Sociology at IU Bloomington, noting that demographic patterns clearly point to this. Powell's expertise includes the sociology of the family and issues regarding family structure. The current discussion and prospects for gay marriage and civil unions, he said, were unthinkable even just a few years ago. Last year Powell and his research team surveyed more than 700 people from around the country about gay marriage. The detailed survey revealed some demographic trends that bode well for supporters of same-sex marriage. The younger survey respondents were much more positive about gay and lesbian unions, Powell said. These young people may become more conservative as they age, thus changing their views of same-sex unions, but Powell said he doubts that this will happen. Young people are coming of age while these issues are being widely discussed, so the issues are less intimidating, he said. Another telling survey result involved the percentage of people who said they had a close friend or relative who was gay. Around 40 percent of respondents said this was the case, and Powell thinks this number would have been around 20 percent 10 years ago. He said this survey result is important because a person is more likely to support gay and lesbian unions if they have a close friend or relative who is gay or lesbian. "Not openly discussing these issues is much worse than having a candid discussion," he said. Powell's survey included questions that probed opinions about heterosexual and same-sex relationships and related benefits, such as hospital visitation rights and inheritance. Powell can be reached at 812-855-7624 and powell@indiana.edu.

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Leonard Link: Maine High Court Follows Other State on Adoption Ruling

Link: Leonard Link.

Complete Text by Permission

All the attention paid to yesterday's trial court decision in the Iowa marriage case has tended to overshadow the very significant ruling by the Maine Supreme Judicial Court, holding that same-sex couples in that state may jointly adopt children.  Certainly "gay adoption" is as much a hot button issue in some parts of the country as "gay marriage."  The decision is styled "Adoption of M.A. et al.," 2007 ME 123.

In any event, this came down to a problem in statutory interpretation.  The same-sex couple, A.C. and M.K., became foster parents of M.A. and R.A. in 2001, the parental rights of the birth parents having been extinguished as a result of a jeopardy order, the causes of which had left the children struggling with post-traumatic stress disorder, reactive attachment disorder, and attention deficit and hyperactivity disorders.  The state's Dept of Health and Human Services placed the children with A.C. and M.K., who after several years of caring for them wanted to adopt them.  A home study report approved them for joint adoption, the guardian ad litem joined the chorus of approval, as did the department's adoption worker, so the government was consenting and things were moving along.  the couple filed adoption petitions in Cumberland County Probate Court, where the court denied the petitions that simply stated it did not have jurisdiction, whichout addressing the merits under the adoption statute.

This was pretty crazy, actually, since clearly the Probate Court in Maine has jurisdiction over adoptions, the relevant statute, 9-301 of Title 18-A of the Maine Revised Statutes providing: "A husband and wife jointly or an unmarried person, resident or nonresident of the State, may petition the Probate Court to adopt a person, regardless of age, and to change that person's name."  Presumably, although the judge did not care to spell it out, the Probate Court construed this to mean that it could only entertain joint adoption petitions from husbands and wives, not from unmarried partners.

The Supreme Court's opinion, by Justice Levy, quickly dispels that notion, saying this is not a question of jurisdiction as the court had jurisdiction over the parties and the subject matter, but rather a question of statutory interpretation.  As to that, he pointed out, the statute does not prohibit joint adoptions by same-sex couples, it merely doesn't mention them while saying that single people can adopt.  In addition, the Probate Code provides that it should be liberally construed, so a narrow, hyper-literal reading of the statutory text is not to be embraced.  Just as clearly, the unmarried same-sex partners could each adopt one of the children as individuals and then do a second-parent adoption of the other, with the end result that each of the women would be the legal mother of both of the children.

But that would not really make sense.  Why should somebody go through a convoluted, time-consuming and expensive process when a single joint adoption petition would cut through the formalities and achieve the state's purpose of providing good homes for children who are wards of the state?  The court spends lots of times on semantics and canons of statutory construction, but what it seems to have really come down to was that allowing a joint adoption made sense, was within the broad spirit and goals of the adoption law, and was not specifically prohibited by that law.  The court was unwilling to read a negative inference into the express statutory approval for joint adoptions by different-sex marriage couples.

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Iowa: Judge issues stay of ruling banning same-sex marriages

Link: www.wqad.com.

DES MOINES, Iowa (AP) - A Polk County judge has issued a stay of his ruling striking down the state's ban on [marriage equality].

Judge Robert Hanson says it was filed early this afternoon.

In yesterday's ruling, Hanson concluded that the state's prohibition on same-sex marriage is unconstitutional. He says the state law allowing marriage only between a man and a woman violates the constitutional rights of due process and equal protection.

The ruling applied only to Polk County, but Iowa law allows citizens to take out a marriage application in any county.

Polk County has filed a notice of appeal to the Iowa Supreme Court.

Before the county stopped taking applications, one couple applied and then obtained a judge's waiver of Iowa's 3-day waiting period for marriage licenses.

A Des Moines minister then married Sean Fritz and Tim McQuillan of Ames.

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IOWA: County halts Equal marriage applications

Link: press-citizen.com.

DES MOINES — The Polk County recorder said today she has been instructed by the county attorney to stop accepting same-sex [i.e., equality] marriage applications.

Recorder Julie Haggerty said the instructions came from the county attorney's office after Judge Robert Hanson verbally issued a stay of his Thursday ruling striking down Iowa's same-sex marriage ban. The judge was expected to file a written ruling on the county's request for a stay today, his clerk said.

Haggerty said about 20 marriage applications were accepted from gay couples before she was told to stop. She is not permitted to accept any more applications until after the Iowa Supreme Court rules, Haggerty said.

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Two Men Married in Iowa's First Same-Sex Marriage

Link: Towleroad .

Following Judge Robert B. Hanson's order that the Polk County Recorder begin issuing marriage certificates to same-sex couples, gays and lesbians all over the state began preparing paperwork, and this morning, college students Tim McQuillan and Sean Fritz were married by a minister on their front lawn.

Via the Des Moines Register:

"Two male college students were married in the front yard of a Des Moines residence this morning. The couple — Tim McQuillan and Sean Fritz, both Iowa State University students — obtained a marriage license at the Polk County recorder’s office and got a judge to sign a waiver allowing them to marry today rather than wait three days, as is required by law. They were married by the Rev. Mark Stringer of First Unitarian Church in Des Moines at 10:32 a.m. Before the ceremony, Stringer said, 'Awesome. It's a long time coming.' After the ceremony, he said, 'They are now official. The marriage license is the official document.' The couple is now headed to the Polk County Administration Building to file the marriage certificate."

More from Radio Iowa:

"Sean Fritz says he proposed to Tim McQuillan last night when he heard a Polk County judge had ruled Iowa's law forbidding gay marriage was unconstitutional. Fritz went to the store and bought wedding rings last night, then got on the Internet to find the paperwork for a Polk County marriage license. 'There was a lot of double-checking everything on the Internet to make sure that we got all the paperwork filled out correctly the first time,' he says. 'We didn't want to get refused because we messed up a 't' somewhere.' Fritz says he called McQuillan's mother in California to ask permission to marry her son. McQuillan says Fritz then got in touch with him. 'He instant messaged me over the Internet that this was going on,' McQuillan says. 'When he picked me up around nine o'clock he proposed to me on the spot. Besides the obvious shock, I still haven't recovered. Maybe it'll set in later this week.'"

Congratulations to Tim, Sean, and all the other same-sex couples celebrating marriage over this Labor Day weekend.

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Israeli Same-Sex Couples May Be Denied Rights

Link: 365Gay.com.

Excerpts:

(Jerusalem) Under pressure from religious parties in the Knesset, Israel's Justice Minister has reportedly revised a draft law on inheritance law for cohabitating unmarried couples to specifically exclude gay and lesbian couples.

Haaretz newspaper reports that Justice Minister Daniel Friedmann made the change in the draft bill this week following a meeting with the ultra-Orthodox Shas party.

The original draft was gender neutral and approved by the cabinet.

The bill now defines a couple as "a man and a woman who lead a family life in a joint household," Haaretz reports.

Friedmann's revision ignores the recommendations of a government commission that recommended partners in same-sex relationships have the same rights to inheritance as married couples when one partner dies without a will.

The revised bill is expected to be introduced in the Knesset during the winter session which begins in November.

The changes have angered LGBT rights groups. 

***
A poll released last month found that despite a vocal opposition to gays by orthodox religious groups the majority of Israeli's believe same-sex couples should have rights similar to those of married couples.

The survey, by the German-based Friedrich Naumann Foundation, asked adult Israelis whether gay and lesbian couples should be afforded pension and survivorship rights.

Fifty-sex percent said it is either good or necessary. Twenty-three percent said it is a "very good" idea, 22 percent said it is "somewhat good" and 11 percent said it was "not good but necessary. Thirty-sex percent of those polled said it was "not good" with 9 percent unsure.

Same-sex couples have been slowly gaining recognition in Israel. In 2005 Israel's Family Court for the first time recognized a same-sex couple as the joint parents of their children. (story)

Last November the Supreme Court ordered the government to register the marriages of same-sex couples married abroad in countries that recognize such unions. (story)

The high court ruling only directs the government to record the marriages for the purpose of collecting statistics.  It does not require that the marriage receive official recognition or that the couples receive any of the rights of marriage.

Marriage under Israeli law is the monopoly of rabbis.  There is no civil marriage in Israel.

***

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Amending the Iowa Constitution

Analysis by Benjamin Barrett
Seattle, WA

Leonard Link provides a nice, thorough run-down of the decision by Trial Judge Hanson striking down the so-called DOMA in Iowa.

It reads to me like Hanson's finding is watertight and likely to survive appeals, though I have no idea how such things work.

If so, then the only way to prohibit marriage equality would be to amend the state constitution. According to ABC, an amendment must pass two general assemblies and then passed by voters.

The specific language of this process follows here:

ARTICLE X.
AMENDMENTS TO THE CONSTITUTION.

How proposed--submission. SECTION 1. Any amendment or amendments to this constitution may be proposed in either house of the general assembly; and if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment shall be entered on their journals, with the yeas and nays taken thereon, and referred to the legislature to be chosen at the next general election, and shall be published, as provided by law, for three months previous to the time of making such choice; and if, in the general assembly so next chosen as aforesaid, such proposed amendment or amendments shall be agreed to, by a majority of all the members elected to each house, then it shall be the duty of the general assembly to submit such proposed amendment or amendments to the people, in such manner, and at such time as the general assembly shall provide; and if the people shall approve and ratify such amendment or amendments, by a majority of the electors qualified to vote for members of the general assembly, voting thereon, such amendment or amendments shall become a part of the constitution of this state.
For statutory provisions, see §49.43 to 49.50, and 49A.1 to 49A.11 of the Code

More than one amendment. SEC. 2. If two or more amendments shall be submitted at the same time, they shall be submitted in such manner that the electors shall vote for or against each of such amendments separately.

Constitutional convention. SEC. 3. At the general election to be held in the year one thousand nine hundred and seventy, and in each tenth year thereafter, and also at such times as the general assembly may, by law, provide, the question, "Shall there be a convention to revise the constitution, and propose amendment or amendments to same?" shall be decided by the electors qualified to vote for members of the general assembly; and in case a majority of the electors so qualified, voting at such election, for and against such proposition, shall decide in favor of a convention for such purpose, the general assembly, at its next session, shall provide by law for the election of delegates to such convention, and for submitting the results of said convention to the people, in such manner and at such time as the general assembly shall provide; and if the people shall approve and ratify such amendment or amendments, by a majority of the electors qualified to vote for members of the general assembly, voting thereon, such amendment or amendments shall become a part of the constitution of this state. If two or more amendments shall be submitted at the same time, they shall be submitted in such a manner that electors may vote for or against each such amendment separately.

Leonard Link: Iowa Trial Courts Rules for Same-Sex Couples in Marriage Case

Link: Leonard Link

Complete Text Used by Permission

by Professor Arthur Leonard
New York Law School

In a sweeping ruling reminiscent of trial court decisions from Washington State, San Francisco, New York City and Baltimore that have been issued in recent years, Robert B. Hanson, a trial judge in Des Moines, Iowa, ruled on August 30 that same-sex couples are entitled to marry, and that the state’s Defense of Marriage Act, passed in reaction to the Hawaii marriage litigation in the early 1990s, is unconstitutional and must be stricken from the state’s statute books. The name of the case if Varnum v. Brien, and copies of a pdf file containing the ruling can be obtained from Lambda Legal's website, www.lambdalegal.org.

Judge Hanson did not stay his ruling pending an appeal, but the defendant, Polk County’s Recorder and Registrar, the official in charge of issuing marriage licenses, quickly sought a hearing to get a stay, and one was scheduled for September 4. In effect, Judge Hanson’s order directs the Recorder and Registrar to issue marriage licenses to the plaintiff same-sex couples and any other qualified same-sex couples who apply. Presumably, if the office is open on Friday, August 31, couples can show up and apply for licenses. However, state law requires that the ceremony take place at least three business days after the license is issued.

Hanson was ruling on a carefully constructed test case brought by Lambda Legal on behalf of twelve lesbians and gay men, six couples who have lived together for varying periods of time (and some of whom have obtained Vermont civil unions). Some of the couples are raising children. In a novel move, Lambda also included as plaintiffs some children of same-sex couples, claiming that their constitutional rights are violated because the inability of their parents to marry deprives the children of rights and protections associated with having married parents.

While expressing sympathy for the arguments made on behalf of the children, Judge Hanson concluded that there was no precedent for recognizing the standing of children to challenge a statute that prevents their parents from marrying. He did note, of course, that his decision in the case accomplishes what the children are seeking.

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." Hanson took a much more stringent approach to evaluating expert witnesses than has generally been seen in gay rights litigation, including litigation about custody, visitation and adoption as well as the prior marriage cases. He essentially determined to reject testimony that did not appear to be based on legitimate, peer-reviewed scientific research or advanced factual knowledge. Thus, he rejected testimony offered from a religious perspective, which he characterized as being mainly the personal opinion of the expert, or opinion about the impact of marriage upon society from supposed "experts" who had not done any sociological research using scientific methods. Similarly, he rejected testimony from some gay witnesses that struck him as being primarily personal anecdotes rather than the result of systematic research.

On the other hand, he agreed to consider testimony from some gay lawyers about the particular difficulties that their clients encountered in their everyday lives as a result of the lack of ability to marry, as bearing directly upon relevant questions for the court.

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Lambda Legal: Iowa Court: Same-Sex Couples Must Be Allowed to Marry

Link: Lambda Legal.

Press Release from Lambda

(Des Moines, IA, August 30, 2007)—A 63 page decision issued today by the Iowa District Court for Polk County said that same-sex couples must be allowed to marry based on the Iowa Constitution's guarantee of equal treatment under the law. The case was filed by Lambda Legal on behalf of six same-sex couples and their families in Iowa.

"This decision brings to life the Iowa Constitution's promise of equality for same-sex couples and their families in Iowa," said Camilla Taylor, Senior Staff Attorney in Lambda Legal's Midwest Regional Office in Chicago.

 "This is a significant step forward in recognizing the constitutional rights of all Iowans, and it's an amazing day for same-sex couples and their families all across Iowa," said Dennis Johnson of Dorsey and Whitney, co-counsel for the Plaintiffs with Lambda Legal.

In his decision, Judge Robert B. Hanson 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 pursuant to Iowa Code Chapter 595 by reason of the fact that both persons compromising such a couple are of the same sex."

In December 2005, Lambda Legal filed a lawsuit with the Polk County Court on behalf of six same-sex couples who were denied marriage licenses in Iowa, arguing that denying marriage to same-sex couples violates the equal protection and due process guarantees in the Iowa Constitution, and prevents these couples from taking care of each other and their children.  Today's decision comes after a hearing in May of this year where both sides made arguments before the court. 

The plaintiffs in this case include: Kate, 34, and Trish Varnum, 42, of Cedar Rapids, who have been in a committed relationship for nearly seven years. In addition to the Varnums are David Twombley, 66, and Larry Hoch, 65, of Urbandale, both retired teachers who have been in a committed relationship for over six years; Dawn and Jen BarbouRoske, 39 and 37 respectively, of Iowa City, who have been together for more than 17 years and their two children, McKinley, 9, and Breeanna, 5; Ingrid Olson, 29, and Reva Evans, 33, of Council Bluffs, who have been together for nearly 10 years and their son, Jamison, 1; Jason Morgan, 37, and Chuck Swaggerty, 35, of Sioux City, who have been together for 10 years; and Bill Musser, 49, and Otter Dreaming, 50, of Decorah, who have been together for over six years.

Camilla Taylor and Kenneth Upton Jr., Senior Staff Attorneys at Lambda Legal are handling the case. They are joined by former Iowa Solicitor General Dennis Johnson of Dorsey and Whitney in Des Moines.

The case is Varnum v. Brien. The complete text of the opinion is located here.

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Leonard Link: BIG NEWS on Marriage and Adoption

Link: Leonard Link.

Complete text used by permission.

I'll have details later on -- there are two substantial opinions to read and digest -- but today Judge Robert B. Hanson of the Iowa District Court, Polk County, ruled in Varnum v. Brien that same-sex couples have a right to marry under the due process and equal protection provisions of the Iowa Constitution.  Judge Hanson granted summary judgment in favor of the plaintiffs, same-sex couples represented by Lambda Legal, and issued an order enjoining the state from continuing to enforce the provision of the marriage law that forbids same-sex marriages.  The order is phrased in affirmative and immediate terms, so unless there is some provision for a stay pending appeal, theoretically same-sex couples may now apply for marriage licenses in Iowa.

Secondly, today the Maine Supreme Judicial Court ruled in Adoption of M.A., a case in which a lesbian couple is represented by Gay & Lesbian Advocates & Defenders, that the Maine adoption statute should be interpreted to allow same-sex couples to jointly adopt a child.  In this case, the lesbian couple was serving as foster parents for several years to two young children who are siblings, and they wanted to jointly adopt the two children.  The Probate Court dismissed the petition for lack of jurisdiction.  The Supreme Court reverses, holding that the Probate Court clearly had jurisdiction of the parties, all Maine residents, and the subject matter, adoption, and the real question was whether the statute could be construed to allow the adoption.  I've just given the opinion a quick first read, but it strikes me as a virtuoso display of the use of canons of statutory construction to reach a practical result in construing a statute that doesn't really address the issue because it dates from a time when the issue would not have been contemplated.  It helps that the Maine Probate Code expressly provides that it is to be liberally construed to achieve the goals of the statute, which include providing good homes for children who are wards of the state.

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