Iowa's top court brings gay marriage to America's heartland

Iowa's top court legalized same-sex marriage Friday, giving advocates a victory beyond the liberal coastal states into the more conservative American interior.

The supreme court justices drew explicit parallels to civil rights struggles by blacks and women, holding that the state's ban on same-sex marriage was a violation of the equality promised in the Iowa constitution.

"If a simple showing that discrimination is traditional satisfies equal protection, previous successful equal protection challenges of invidious racial and gender classifications would have failed," the court said in its ruling.

This past week, legislators in both Vermont and New Hampshire have passed bills legalizing gay marriage, as did Sweden's parliament, making it the fifth European country to allow it.

Both sides of the same-sex marriage controversy can claim victories in various state courts. But this heartland ruling highlights the problems opponents have had making a secular case before courts of law, causing some to shift their focus more to defending religious protections.

"The strongest argument for traditional marriage has always been anchored in faith," says Douglas Kmiec, a law professor at California's Pepperdine University and an opponent of same-sex marriage. "The issue is one that affects every part of the country and it is a topic that requires the balancing of claims of equality and religious freedom," he adds.

He argues that legislatures need to carve out explicit religious exemptions. These would ensure that legal protections for gay equality do not eventually impact churches' tax benefits, hiring practices, and public activities. He and others have also mooted removing the state from marriage altogether.

Forty-three states have laws explicitly prohibiting such marriages, including 29 with constitutional amendments restricting marriage to one man and one woman.

In a New York Times oped last month, Jonathan Rauch of the Brookings Institution and David Blankenhorn of the Institute for American Values suggested the federal government give civil union status to same-sex marriages and civil unions granted by states – so long as those states included strong religious conscience clauses.

While agreeing that religious exemptions are needed, leading same-sex marriage opponent Maggie Gallagher doesn't think recent losses in court spell the beginning of the end to the legal fight. While Iowa, California, Connecticut, and Massachusetts courts have ruled in favor of same-sex marriage, Maryland, New York, and Washington state have rejected it. California repealed the gay marriage ruling by voter initiative in November.

"Are we going to be losing masses of state courts? No," she says. But she says proponents seem to be gearing up for a bigger prize: "They are going after federal rights for same-sex marriage."

But a leading lawyer for same-sex marriage counters that any federal court cases have been narrow and the fight continues in the states.

"It seems premature to present a question to the Supreme Court that would make a rule for the whole country when most of the country is just starting to grapple with the question," says Jennifer Pizer, senior counsel for Lambda Legal in Los Angeles.

Americans' attitudes to same-sex marriage have remained largely stable over the past few years, with the majority opposing it.

However, a study released February by research and polling firm Public Religion Research, showed that attitudes among younger Americans are changing. Almost half of young adults surveyed in 2008 supported same-sex marriage, up from 37 percent in 2006.

Asked if there was a threshold of state rulings legalizing marriage before bringing the case to the Supreme Court, Ms. Pizer rejected the idea of a "magic number," and said one could also look at the question more in terms of population rather than state numbers.

She says Lambda has taken seriously writings by Supreme Court Justice Anthony Kennedy who argues that the role of the high court in issues of civil rights is to bring "trailing states up to an important federal standard when much of society has evolved forward," she says.

As for religious claims, she argues people are fully entitled to live according to their deeply held beliefs. At issue in the same-sex marriage debate, however, is the government's role in civil marriage.

The Iowa court ruling addressed religious concerns by saying "civil marriage must be judged under our constitutional standards of equal protection and not under religious doctrines or the religious views of individuals."

The court went on to say that religious denominations could still define marriage as they wish and that the religious marriages would lose no meaning from the change in civil marriage.

The justices also refuted the state's attempts to show there was a rational basis for preserving the traditional definition of marriage. It shot down every arrow in the quiver of same-sex marriage opponents: maintaining tradition, protecting the interests of children, ensuring procreation, and promoting stability of opposite-sex marriage.

The "best interests of children" is, undeniably, an important governmental objective, the court said. But "the germane analysis does not show how the best interests of children of gay and lesbian parents, who are denied an environment supported by the benefits of marriage under the statute, are served by the ban."

Calls are already going forth in the Iowa legislature to pass a constitutional amendment to bar same-sex marriage – a move that would overturn the court ruling just as California voters did last November with Proposition 8. Unlike California, which allows citizen-driven amendments, Iowa requires the legislature to act.

Iowa Senate Republican leader Paul McKinley called on his colleagues to do just that. "I am confident the majority of Iowans want traditional marriage to be legally recognized in this state," he said in a statement.

The court's decision upheld a 2007 district court judge's ruling that the 1998 Iowa Defense of Marriage Act violates the state constitution. The lawsuit was filed in 2005 on behalf of six Iowa same-sex couples who were denied marriage licenses.

Same-sex couples in the state may be able to apply for marriage licenses in as few as three weeks.