Source: Des Moines Register, Iowa Independent, Daily Iowan, Iowa City Press Citizen
Justices of the Iowa Supreme Court today grilled attorneys on two sides of a case that seeks to bring marriage equality to Iowa.

Iowa Independent reports that the hearing was generally free of tension.

There were no mass protests on the steps of the building, no disruptive outbursts in the courtroom, and no major security incidents. Even stragglers who entered the building minutes before arguments began were greeted by friendly security guards and a very short line to enter.

In the case -- Varnum v. Brien, six same-sex couples from Polk County are arguing that the state's 1998 ban on gay marriages is unconstitutional. The state is defending the Defense of Marriage Act, which passed by wide margins in the state legislature a decade ago.

Qnews update: Iowa court rules: Marriage for gay/lesbian couples matter of fairness 4-Apr-09

Oral arguments today pitted the Polk County attorney’s office against the couples, represented by the national gay and lesbian rights group Lambda Legal.

According to a report on the hearing from Des Moines Register, questions from the justices to the advocates focused on different aspects of what are generally called "slippery slope" arguments -- assertions that recognizing the right of gay and lesbian couples to marry would lead to unintended consequences.

The justices asked Dennis Johnson, a Des Moines lawyer who represents six couples challenging the Iowa same-sex marriage ban, to tell them why approving marriage for the couples and others wouldn't lead to polygamy.

The justices grilled Assistant Polk County Attorney Roger Kuhle about the state's assertion that approval of marriage equality for same-sex couples would harm children.

Arguments concluded shortly before noon. A ruling is not expected for several months.

Presenting arguments supporting the "Defense of Marriage Act", Kuhl told the justices that a ruling that allows same-sex marriage could harm children in future generations by eventually leading to belief that marriage is unneeded, Des Moines Register reports.

"We're saying that, after a generation, maybe two, people will see or could come to believe that if it’s not necessary to have its biological father, or its biological mother, then what’s the need for getting married?" Kuhle said, according to the Register.

The statement came in response to a question by Justice Brent Appel, who quizzed Kuhl about their arguments that same-sex marriage could harm children.

Kuhle said Polk County District Court Judge Robert Hanson had erred in his ruling last year, which declared the Iowa Defense of Marriage Act unconstitutional. His ruling also threw out several expert witnesses that marriage equality opponents had hoped to use in a trial.

Kuhle continued his arguments beyond his allotted 30-minute limit, as justices grilled him on the potential impact of a ruling in favor of same-sex marriage, the Register reports.

Kuhle said that state support of same-sex marriage would teach future generations that marriage is no longer about procreation, which he argued is one of its historic tenets.

"One could easily argue, and we do, that fostering same-sex marriage will harm the institution of marriage as we know it," Kuhle said. "It's not going to happen tomorrow. We're not going to see any changes tomorrow, next week, next year, in our generation. But you've got to look to the future."

Kuhle concluded his arguments nearly 18 minutes over his allotted time, and took issue with the description of the Iowa law as a "ban."

"There is no ban, there is no exclusion against same-sex marriage," Kuhle said.

Several Iowa Supreme Court justices challenged marriage equality advocate Johnson to explain why allowing marriage for gay and lesbian couples would not open the door to polygamous marriages.

The attorney for six same-sex Iowa couples responded that marriage would remain an institution of two people even if the high court allowed gay couples to wed.

"How do you stop?" asked Justice Mark Cady. "How do you stop more than two people from getting married?"

Johnson said a marriage "has always been well defined within the concept of two people," and that polygamy would change its historic meaning. Same-sex couples, by contrast, should have the right to marry because they meet all other requirements to wed, he said.

He argued that polygamy or bigamy would require a fundamental change to laws and rules concerning consent, dissolution, custody, and inheritance. He argued that allowing same-sex couples to marry does not require changes to those rules.

"This right is a time-honored right and tradition in this society," Johnson said. "What you see is that people have always had a fundamental right to marry. The court has made it clear. With more than two people, you would change the meaning of marriage."

Justice Michael Streit asked Johnson whether the state has “an interest in making a last stand, so to speak? Can’t the government take a big picture approach to this?"

Johnson criticized Polk County’s arguments about possible long-term damage to marriage as "highly speculative," and cast the law as an intrusion on equal rights.

"The question is: Why are same sex couples kept out?" Johnson asked. "They have families, they would benefit from the stability, the financial stability. Their children would benefit."

Johnson concluded his arguments 10 minutes over his allotted time, according to the Register.

In a telephone interview with the Iowa Independent, Mark McCormick, a Des Moines attorney who served on the Iowa Supreme Court from 1972 to 1986, said before today's hearing that the court's decision in this case could be determined by an important technical decision they're likely to make early in their deliberations.

They'll have to decide the standard of evidence they will apply to the case.

In their comments today, the justices did not indicate how they might be leaning on that aspect of the case, but the justices -- especially Appel and Cady --repeatedly asked attorneys on both sides to address the factors underlying the distinction between the different legal standards.

When a case involves a routine economic issue, the court typically applies a rational basis test, McCormick explained to the Independent. That means the judges seek to decide if the Legislature could have had any reasonable basis for making the classification that it did, according to Iowa Independent. If the judges conclude that the state had a rational reason for the law, the court won’t interfere with it, but will defer to the Legislature.

"Strict scrutiny" is a more demanding standard, McCormick told the Independent.

Kuhl argued at today's hearing that the Iowa legislature had a rational basis to restrict marriage licenses to homosexual couples. He argued the issue "is one for the legislature to decide as a matter of social policy" and said marriage had always been "inextricably linked to procreation."

Justice David Wiggins today asked Kuhl, why -- since he was arguing for a "rational basis" decision -- he was talking about marriage as if it were "fundamental right", hinting at the higher "strict scrutiny" argument.

"What attributes of marriage make it a fundamental right?" Wiggins asked.

Kuhl argued that it's only marriage between a man and a woman that is a "fundamental right".

California's high court applied the higher "strict scrutiny" test when it made its broad ruling in favor of marriage equality.

"Where you are dealing with an issue like race or citizenship or something that is considered a fundamental constitutional right, the burden is on the government to prove a compelling need for the classification," McCormick explained to the Independent.

In the district court decision in the case last August, the judge applied this standard and ruled in the favor of the gay couples, the Independent reports.

Johnson today argued that the high court should again apply the strict scrutiny standard. The questions about polygamy arose as justices probed reasons to reject the rational basis standard.

"You can see these [two tests] are just at opposite extremes," McCormick explained to the Independent.

Although rulings from other states do not set a precedent for Iowa's court, McCormick told the Independent that he expects Iowa's justices to study the legal reasoning in those cases.

"I think our court will look at the decisions that have been made in other states" he said. "The three most recent states to decide the issue, as I recall, have stricken state laws of a comparable nature. So, our court will be looking at the reasoning in those cases, and will probably find something persuasive about some of that reasoning."

The three most recent state courts to rule on gay marriage were Massachusetts, California, and Connecticut. The justices in all three states ruled that laws banning same-sex marriages were unconstitutional.

In a comment on the case to the Daily Iowan, a college paper, Lambda Legal's senior staff attorney, Camilla Taylor, said she was confident the Iowa Supreme Court will affirm Hanson's 2007 decision which declared Iowa's same-sex marriage ban unconstitutional.

"I think Iowa has a very broad, unique definition of equality and liberty under its state constitution," she said. "Iowa has a broader protection under its state Constitution than the federal Constitution."

Taylor told the Iowa City Press Citizen that she foresees several possible outcomes of the hearing.

She said there could be an outright win or loss, the case could be remanded back to trial court to hear from more witnesses, or the court could duplicate rulings on similar cases in New Jersey and Vermont.

In those states, the courts ruled that the legislatures should grant gay and lesbian couples a legal framework similar to marriage, but did not require full marriage equality, according to the Press Citizen.

Taylor said she doubted the Iowa Supreme Court would use the last two options.

"Most likely it will be an outright win because of constitutional precedent. The cases we are relying on are very strong," she said. "I don't want to sound presumptuous, but I am optimistic because of the Iowa cases we are relying on."

University of Iowa law professor Angela Onwuachi-Willig, who has been following the case, told Iowa City Press Citizen that she also expects the court to side with the plaintiffs.

Onwuachi-Willig, who supports same-sex marriage, identified a few of the critical issues in the case for the Press Citizen.

She said how the court will look carefully at why marriage license were denied to the couples.

She explained that the court must decide if couples are being denied on the basis of their sexual orientation or because they are marrying someone of the same-sex. It's a small distinction perhaps in the lay person's eyes, but an important one, she told the Press Citizen.

Onwuachi-Willig said the strongest argument for the plaintiffs is that it's a denial of the rights of equal protection. Essentially, it means that it renders same-sex couples second-class citizens and establishes "hetero-supremacy," she said.

"I think that is an incredibly strong argument," she said, according to the Press Citizen.

The defense's strongest argument is that marriage is a tradition between a man and a woman, she said, but that also could be its downfall.

"There is a long history of marriage across sexes, but tradition can also be an oppression," she said, noting Jim Crow laws.

Source: Attorneys conclude Supreme Court arguments in gay marriage case | Des Moines Register
Iowa Supreme Court opens same-sex marriage case | Daily Iowan
Iowa gay marriage decision may hinge on legal standard | Iowa Independent
Experts expect court to side with plaintiffs | Iowa City Press Citizen

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