DES MOINES, Iowa (BP)–Iowa’s Supreme Court heard oral arguments Dec. 9 in a closely watched case that could make it the third state — and easily the most conservative one yet — to recognize “gay marriage.”
The seven justices considered the case more than a year after a lower court judge, Robert B. Hanson, struck down the state’s pertinent laws and ordered it to legalize “gay marriage.” The decision was appealed.
The high court asked tough questions of both sides for 100 minutes and gave no indication of when they might rule. If oral arguments are any indication, the vote could be close.
Justice Brent R. Appel asked Assistant Polk County Attorney Roger Kuhle — who was defending the current law — if he believed children in traditional households would be harmed if the state legalized “gay marriage.” Kuhle consistently argued in court that changing the marriage laws could have a dramatic impact on society.
Kuhle said the current marriage laws are needed to promote children being raised by a mother and father.
“One could easily argue, and we do, that the state, by fostering same-sex marriage, will harm the institution of marriage as we know it and could defeat its vital purposes,” Kuhle told the justices. “… If the court upheld the trial court’s ruling, [then] we’re not going to see any changes tomorrow, next week, next year, probably not for a generation. [But] when the state says that it’s not relevant who raises a child … people will see or could come to believe that if it’s not necessary for a child to have its biological mother or its biological father, then what’s the need for even getting married? The state will be teaching that it’s not necessary.”
Much to the delight of social conservative attorneys, Kuhle’s office embraced the argument that the unique procreative abilities of opposite-sex couples are at the heart of traditional marriage laws. That stands in contrast to examples in other state courts where attorneys opposed to “gay marriage” have avoided the procreation argument.
“How does a father teach a daughter, a girl, to be a woman?” Kuhle asked. “How does a woman teach a boy to be a man? Our experts don’t believe that that is ideally done or well done by a person of the same sex.”
Kuhle also argued the issue was one “for the legislature to decide,” and not the courts.
The lawsuit was filed in December 2005 on behalf of six same-sex couples by Lambda Legal, a homosexual activist group. Iowa was targeted in part because of the court’s makeup and in part because Iowa’s constitution is difficult to amend, requiring the legislature first to OK an amendment before it goes to voters. Unlike 30 other states, Iowa does not have a constitutional marriage amendment, and the legislature has been cold to the idea. Democrats control the state House and Senate. Iowa would become the first state in the heartland to grant marriage licenses to same-sex couples.
Justice David S. Wiggins joined Appel in asking Dennis Johnson, the attorney representing the same-sex couples, some of the toughest questions.
“How do you limit it to just two people, if you don’t look at the tradition about marriage [having] always been between two people?” Wiggins asked.
“Marriage,” Johnson answered, “is an institution between two people, and it is highly regulated by the state ….”
Appel interrupted Johnson, saying, “You’ve just said, ‘Well, marriage is between two people.’ Aren’t you doing the same boxing-in of definitions that the defendants are?”
“I don’t think so, your honor,” Johnson answered. “… Now, if you want to get into something like polygamy or bigamy, that is really suggesting a change in the nature of the institution.”
Wiggins retorted, “Same-sex marriage [also is] changing the institution.”
“We’re not suggesting a new institution,” Johnson replied. “We’re suggesting that everybody be able to participate equally in the institution that’s existed since the beginning of this state.”
A Big 10 Battleground Poll conducted Oct. 19-22 showed that only 28 percent of registered Iowa voters support “gay marriage.” Thirty-two percent oppose both “gay marriage” and civil unions, while 30 percent oppose “gay marriage” but back civil unions. The poll interviewed 586 voters.
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Michael Foust is an assistant editor of Baptist Press.
