Lawsuit seeks marriage rights for gays

The most recent marriage case filed 12/13/05 in Iown is Varnum v. Brien. It was filed under the equal protection and due process guarantees of the Iowa Constitution and seeks a court order that the Polk County Recorder stop refusing to issue marriage licenses to same-sex couples and a declaratory judgment that the state's prohibition on same-sex couples marrying violates the state's constitution. MRO Staff Attorney Camilla Taylor is the lead lawyer. Dennis Johnson, former Solicitor General of Iowa and currently with Dorsey & Whitney in Des Monies, is working with us as a cooperating attorney on the case. This suit is the result of more than a year of advance work, carefully researching Iowa law, the state's courts, and the process for amending the state's constitution; assessing the likelihood of success and the political situation in the state; locating plaintiffs who have experienced a range of harms from not being able to marry; and developing the media presentation of the first marriage case brought by one of the national LGBT legal organizations in the "heartland" as opposed to on one of the coasts. We currently await the government's formal response to our initial pleading.



Des Moines Register
February 7, 2006
http://desmoinesregister.com/apps/pbcs.dll/article?AID=/20060207/NEWS01/602070381/1001/SPORTS12

Lawsuit seeks marriage rights for gays
By JEFF ECKHOFF, REGISTER STAFF WRITER - COPYRIGHT DES MOINES REGISTER

David Twombley and Larry Hoch of Urbandale don't seem militant. They speak of love, and of family, and of growing up in an "Ozzie and Harriet" generation where the highest, most sincere public expression of romantic feeling was a wedding.

But ask these two retired teachers about their own desire to wed, and talk of their 1950s upbringing quickly turns to the 1960s civil rights movement.

Twombley and Hoch, along with five other gay and lesbian couples, are at the center of Iowa's first full-on court battle to bring gay marriage to the Midwest. It's a fight the men, ages 64 and 63, see in broad sociological terms: This is their movement, their bid to end discrimination.

They aren't sure it will work, frankly. But they're going ahead anyway.

"It has to be done," Twombley said. "This is going to happen. Maybe not in our lifetimes, but it will happen. There's a time when you have to take a stand, and I think we both feel that this is the time."

People on both sides say it's possible the Polk County case will lead to new legal rights for gays who claim discrimination.

Gay marriage opponents say that concern already has strengthened calls for a constitutional amendment that defines marriage in Iowa as a solely heterosexual act.

County lawyers on Monday filed their first official response to the couples' lawsuit — a written "answer" that formally contests the couples' legal claims but takes no philosophical position on gay marriage. Assistant Polk County Attorney Mike O'Meara declined to comment.

Legal observers say the lawsuit, filed by a national gay-rights organization, is likely six months away from any kind of decision. And it'll likely take 18 months after that to resolve an almost-guaranteed appeal to the Iowa Supreme Court.

Lawsuits similar to Iowa's are pending in California, Connecticut, Maryland, New Jersey, New York and Washington state, where a ruling is expected any day. Gay marriage is legal in Massachusetts, while Vermont has allowed for lesser "civil unions" since 2000. Connecticut's voluntary civil union law, passed last year, is being challenged on grounds that it does not constitute marriage.

In most states, the early-round court battles have been fought quickly, with few courtroom witnesses and a lot of lawyerly arguments about the meanings of clauses in state constitutions. Observers say that means Judge Robert Hanson could be ready to rule in the Polk County case by late spring or early summer.

Supporters of the lawsuit say the risk of galvanized opposition might be worth the reward.

"You can have nothing because you didn't ask for it, or you can have nothing because somebody kicked you in the teeth," said Drake University law professor Maura Strassberg.

A strong opponent of gay marriage says the lawsuit is "the only shot" Lambda Legal, the organization backing the lawsuit, has.

"They have a constituency that expects action," said Chuck Hurley, president of the Iowa Family Policy Center. "They're not going to sit around for years and years. They're going to try the doors that might open. And this one might open."

The lawsuit contends, among other things, that Iowa dooms gays and lesbians to second-class status because it forbids them from "making the legal commitment to one another that marriage entails."

Because of a state law's requirement that "only a marriage between a male and a female is valid," gay partners are treated unequally when it comes to things like taxes, child custody, property rights and even the right to make burial decisions for a deceased partner, according to the lawsuit.

The judiciary, state politics The six couples seek a court order that declares the seven-year-old gay marriage ban unconstitutional and demand that Polk County Recorder Tim Brien issue them marriage licenses.

Hurley sees potential danger for his cause in an Iowa Supreme Court decision last year involving a busted civil union between two Sioux City women who were joined in a ceremony in Vermont. Iowa justices had an opportunity in that so-called "lesbian divorce" case to overturn the initial judge's decision, but they ruled that state lawmakers had no standing to challenge the decision.

"Lambda thinks there's a shot here at the Supreme Court," Hurley said. "The governor appoints judges, and the governor's been very friendly to the homosexual agenda, so maybe they felt that there was a red carpet here in that regard."

After September, when Chief Justice Louis Lavorato is scheduled to retire, Democratic Gov. Tom Vilsack will have appointed three of the seven Supreme Court justices.

Patricia Cain, a vice provost at the University of Iowa and a former board member of Lambda Legal, said she doubts Lavorato's retirement will have any impact.

"I don't think that we have big swings in the Iowa Supreme Court," she said. "The Supreme Court has never seemed very political to me in this state."

But other things are.

Iowa's House of Representatives already has passed the constitutional amendment banning gay marriage. But the proposal is unlikely to advance this year, since Senate Democratic Leader Mike Gronstal views it as unnecessary.

The stalemate means gay marriage, again, is expected to figure prominently in this fall's legislative campaigns.

"It wasn't an issue that we were planning on bringing up," said House Speaker Christopher Rants, a Sioux City Republican. "But apparently the Democrats and their allies have some other things in mind."

Gronstal counters that Republicans have used the issue before in a bid for political gain and are likely to do so again.

"Iowa already has a law that says marriage is between a man and a woman," Gronstal said. "I remain reasonably confident that the Supreme Court will rule that state law stands."

"A matter of fairness"

Lawyers for Lambda Legal shy away from public talk about their strategy, describing the Iowa lawsuit simply as a necessary response to Iowa-based complaints.

"The law is ultimately about fairness," said Camilla Taylor, Lambda's Chicago-based attorney overseeing the lawsuit. "I think Iowans understand fairness. . . . Once they actually meet the couples involved in the case, folks are going to understand why it is that people need the protections that come along with marriage." But the question remains: Why Iowa?

Legal observers say it makes as much sense as anything else.

Federal politics and court rulings have largely closed the door on any nationwide battle for gay marriage. But experts say many state constitutions are written more broadly, encouraging such battles to be fought state by state.

Lambda has been involved in other states. But until the December lawsuit, the issue had never been raised in the Midwest.

"If you're Lambda, and you're kind of in a holding pattern, and all the action is on the East Coast and the West Coast, and nothing is happening in the middle of the country, then this is as good a place as any," said Drake professor Strassberg.

It's a darned good place, according to Lambda supporters and others, if you think of the lawsuit as part public-relations campaign.

"Litigation by public-interest groups is successful if you educate the public," said the University of Iowa's Cain. "Even if you don't win the lawsuit."

Gay marriage supporters say Iowans have long had a reputation for tolerance, and they're hoping that tolerance can expand.

An Iowa Poll in 2003 found 65 percent of Iowans supported Iowa's current ban on gay marriages. But the same poll found that 49 percent of Iowans believed that gay and lesbian couples should have the same legal rights as heterosexual couples.

It's numbers like that that give hope to people like Twombley, Hoch and the other plaintiffs.

"I really think the general population, separated from the political agenda, recognizes that this is just a matter of fairness," Twombley said.

Hoch said Lambda lawyers "have done their homework very, very well."

"They understand the politics," Hoch said. "They understand the state constitution and what the attitudes of the people are. . . . They wouldn't be doing this if they didn't think we had a chance to win."