Attorneys conclude Supreme Court arguments in gay marriage case | DesMoinesRegister.com | The Des Moines Register

Attorneys conclude Supreme Court arguments in gay marriage case | DesMoinesRegister.com | The Des Moines Register



December 9, 2008


Attorneys conclude Supreme Court arguments in gay marriage case

BY GRANT SCHULTE
gschulte@dmreg.com

Arguments have ended today before the Iowa Supreme Court over a case involving gay marriage.

Varnum vs. Brien involves six same-sex Iowa couples who sued Polk County Recorder and Registrar Timothy Brien in 2005, after his office denied them marriage licenses.

Polk County District Court Judge Robert Hanson sided with the couples in a ruling last year, but suspended his decision until the high court reviews the matter.

The Polk County attorney’s office appealed the lower-court ruling to the Iowa Supreme Court on the grounds that Hanson erred in his 2007 ruling and that the county had followed the “clear, unambiguous language” of state la

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

An attorney for six same-sex Iowa couples insisted that allowing gay marriage would not open the door to polygamous marriages, despite challenges from several Iowa Supreme Court justices.

Dennis Johnson, a Des Moines lawyer, said marriage would remain an institution of two people even if the high court allowed gay couples to wed. The assertion came in response to questions from several justices that gay marriage would open the door to other types of marriage.

“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.

“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.

The Polk County attorney's office presented its case earlier.

Assistant Polk County Attorney Roger Kuhle in his arguments said a ruling that allows same-sex marriage could harm children in future generations by eventually leading to belief that marriage is unneeded.

“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.

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 Hanson had erred in his ruling, which declared the Iowa Defense of Marriage Act unconstitutional and threw out several expert witnesses that gay marriage opponents had hoped to use in a trial.

“The recorder has no say in this law,” Kuhle said. “He can no more give these plaintiffs a license than he could give a license to a man and three women, or a woman and three men.”

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.

Kuhle said that state support of same-sex marriage would teach future generations that marriage is no longer about procreation, 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.

Kuhle, in his rebuttal, accused the lawyers for the same-sex couples of “cherry picking” from different court cases to build a case that only appeared logical.

“It has some appeal, frankly,” Kuhle said. “You talk about fairness, and who doesn’t want to treat people fairly?”

But Kuhle took issue with assertions that gay marriage was a civil rights issue. The civil rights issue for gays, he said, was addressed largely in the landmark U.S. Supreme Court case Lawrence v. Texas, which declared sodomy laws unconstitutional. Now, he said, same-sex couples are pushing an agenda beyond mere civil rights.

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