What Changed in Five Days: Gay Marriage in Iowa, Vermont and the Rest of the Country

It has been an unprecedented week for the rights of lesbians, gay men, and bisexuals. Last Friday, the Iowa Supreme Court found that denying same-sex couples the opportunity to marry violated that state's constitution. Four days later, the Vermont legislature overrode the governor's veto of a law giving same-sex couples the right to marry. Vermont and Iowa now join Massachusetts and Connecticut in providing full marriage equality to same-sex couples. Also, the City Council in the District of Columbia just voted to recognize valid same-sex marriages from other jurisdictions even though same-sex couples cannot get married in D.C. Who would have thought that in the aftermath of Prop. 8 in California, one of the most liberal states in the union, so much would happen so quickly for gay marriage?

Iowa in context
What makes the Iowa decision remarkable is that the decision was unanimous (7-0) and that the decision comes in the middle of the country. Before Iowa, the eleven states that recognized same-sex relationship were coastal (or very close to the coast). Besides Massachusetts and Connecticut, Vermont, New Jersey and New Hampshire had civil unions, California and Oregon had robust domestic partnerships (which are basically the same thing as civil unions; California allowed same-sex marriages for several months in 2008), and Washington, Maryland, Hawaii, and Maine had limited domestic partnerships (which provide some small subset of the rights associated with marriage to registered same-sex couples). Iowa shows that the recognition of same-sex relationships -- and, more significantly, full marriage equality -- is possible even in the "heartland" of the United States.

While the Iowa decision did not break new ground, like the highest courts of Massachusetts, California, and Connecticut, the Iowa court found that denying same-sex couples the right to marry violated the principle of equality enshrined in the state constitution.

Sexual orientation gets heightened scrutiny
As did the Supreme Courts of California and Connecticut in the process of reaching their conclusion, the Iowa court held that laws that make use of sexual-orientation classifications warrant heightened judicial scrutiny. This means other laws in Iowa that make use of sexual-orientation classifications will be treated like laws that make use of sex classifications. When courts demand a very strong justification for laws that involve sexual-orientation classifications, they almost always find inadequate the proposed justification for laws that treat people differently in virtues of their sexual orientations.

Anti-gay marriage arguments about gay parents and procreation rejected
Further, with great clarity, the Iowa court rejected the two leading arguments made by opponents of same-sex marriage: (1) gay people are less good parents than heterosexuals and (2) prohibiting same-sex couples from marrying strengthens the incentives for different-sex couples to marry, thereby creating greater stability for the children of different-sex couples. These two arguments have been embraced by courts in New York, Maryland, Washington, Indiana, and Arizona, but the Iowa court, like California and Connecticut courts, firmly rejected such arguments against same-sex marriage.

Vermont in context
In Vermont, the path to marriage for same-sex couples was quite different than in Iowa. Vermont was a path-breaker with respect to the relationship recognition for same-sex couples. In 1999, the Vermont Supreme Court held that the state's constitution required that same-sex couples be able to obtain all the benefits that different-sex couples could obtain by marrying. After struggling with the options, the Vermont legislature created a new type of relationship for same-sex couples called civil union that is identical to marriage in terms of its effects under state law. Although Vermont preserved marriage for different-sex couples, with the passage of its civil union law, Vermont became the first state in the country to provide equal recognition to same-sex relationships.

Some LGB rights advocates criticized this law as creating a second-class status for same-sex couples. Others had a more pragmatic reaction, suggesting that some recognition is better than none at all. And others said civil unions might help clear a path to marriage. In ten years, it seems, Vermonters have come to realize hell has not frozen over and different-sex relationships have not been undermined simply because same-sex relationships are recognized.

Vermont is the first state where same-sex couples can marry as the result of a legislative process rather than as the result of a court order. Other states have enacted civil union or domestic partnership laws without being required to do so by courts (for example, Connecticut and New Hampshire passed civil unions laws without a court saying that the state's constitution demanded it). And California's state legislature twice passed a law that would have legalized same-sex marriage, but the state's governor twice vetoed it. So once again, Vermont is a trailblazer for civil rights.

Looking forward
Vermont, Iowa, and D.C. show that we have reason to be optimistic even after the voters of California took away full marriage equality only a few months after it was awarded. Although I suspect the California Supreme Court will uphold the constitutionality of Prop. 8 (while not invalidating the gay marriages legally performed during that brief period), in the coming months, the legislatures of Hawaii, Rhode Island, New York and New Hampshire may well enact same-sex marriage laws.

Regardless, there will continue to be a patchwork of recognition and non-recognition of same-sex relationships across the land. Further, no matter where in the U.S. you live, if you are in a same-sex relationship, because of DOMA, you won't get any of the federal benefits of marriage. And, even if DOMA is repealed, there will still be patchwork, because so many states have constitutional amendments that refuse recognition to same-sex marriages or other forms of legally-recognized same-sex relationships.

It has been an exciting week for same-sex marriage. I expect some more good news in the next several months, but I also expect some setbacks. For now, advocates of legal recognition for same-sex relationships should adopt a nuanced state-by-state strategy, pushing for full marriage equality in some states, civil unions in others, and limited recognition in the rest.

Comments

[Matt Carter]

"And, even if DOMA is repealed, there will still be patchwork, because so many states have constitutional amendments that refuse recognition to same-sex marriages or other forms of legally-recognized same-sex relationships. "

Ack. Wrong. Wrong, wrong, wrong. Is is too much to ask for us to be educated about our own civil rights movement? For crying out loud.

Federal law trumps state law, including state constitutions. DOMA is the federal legislation that exempts states from the doctrine of full faith and credit where the marriage issue is concerned, and allows states to refuse to recognize each other's marriages. If there's no DOMA, the states are back to full faith and credit, meaning they have to once again recognize all marriages from sister states. If DOMA falls, the whole stupid mess goes down with it. We can only hope.

[WallyNut]

I found a new website designed to help gay and lesbian couples to plan weddings in Iowa. Check it out at www.gaymarriageiowa.org

[ocrt]

One thing that really bugs me about the reporting on same-sex marriage is the terminology. So often, reporters and commentators refer to gay marriage or homosexual marriage

In reality, same-sex couples are commonly a relationship between:
-Two male gays,
-Two lesbians,
-One lesbian and a bisexual woman,
-One gay male and a bisexual man,
-Two bisexual males, or
-Two bisexual females.

The only inclusive description is "same-sex marrige." I wish people would use it.

I like Stein's a "nuanced state-by-state strategy." GLBT folks and their supporters in California started with a registry that guaranteed visitation rights in hospitals. Over successive years they converted this into full same-sex marriage. A great strategy.

[drMK]

i wish people would only use the term Marriage Equality as that best describes what is at stake!

[Richardini]

I have never understood in what way gay marriages can possibly hurt straight marriages. It seems obvious to me that the straights themselves have done everything possible to hate the institution. Half of them get divorced over and over, others live together without being married and the only ones who seem to be always yakking about the sanctity of marriage are the fundamentalists who hate gays as abominations unto the Lord. Of course, reason never enters into arguments with the fundies. They just haul out their Bibles and condemn all sinners in the name of the Scriptures. Give me a break. What gays want is the legal protection afforded by the law to their straight counterparts. Not only do they deserve to be able to marry legally but to serve in the armed forces without any muzzles placed on them.
Many other civilized countries do it. Are we still a bunch of Archie Bunkers? This is the 21st century and the founding fathers were not religious fanatics but rather Deists. Look it up.

[mredder4]

I'm also at a loss to understand why Prop 8 could be upheld. Can anyone explain? How can the court, after identifying a right for all citizens, allow a fast-tracked election proposition that removes that right to stand? It seems completely illogical. How could it possibly be legal?

[nicole44]

Because the people voted for it. It had nothing to do with the courts after it was put in the voters hands.

[Allen Gomez]

Would a popular vote to reintroduce the concept of seggregation in CA stand?

[JackNasty]

The California Supreme Court has heard arguments but has not yet issued its opinion on the constitutionality of Prop 8.

The main argument against Prop 8 is that it revised instead of amended California's Constitution. California's constitution makes a distinction not made in other states. Amendments are relatively easy to pass with a simple majority vote of the people. . A revision of California's Constitution requires both 2/3 vote of both legislative bodies and a public vote before it becomes effective.

Prop. 8 eliminated a fundamental right already granted by the court from a group already declared by the court to be a suspect class. That hasn't happened before in California's history. Prop 8's survival as law is not done deal.

[jonbmaher]

An Essay on Gay Equality sent to 535 members of Congress, 9 Supreme Court Justices, 50 governors, the President, and the President-Elect as well as the legislatures in Vermont and Iowa before the rulings: "When trade smiths, farmers, teachers and clergy sailed west on boats from Europe with their families in the early 1600s, they sought to leave behind oppression in favor of opportunity and freedom. A century and a half later..." http://www.jonathanmaher.com/equality/

[AguynamedWayne]

It wouldn't hurt our cause if President Obama started living up to some of those constantly repeated promises that he made to the gay community during the election campaign to be a "fierce advocate for gay and lesbian Americans". The only one Obama has been a fierce advocate for since the election ended has been Rick Warren! Obama vowed to end DOMA (but now the Obama administration is actually citing DOMA as cause for why they will deny a judges order to issue benefits to gay couples!!! IT'S THE EXACT OPPOSITE OF WHAT OBAMA PROMISED!!) Not to mention that Obama has also backtracked on his vow to end DADT. And for someone who kept promising "CHANGE" Obama has wasted several valuable opportunities to show some actual LEADERSHIP on LGBT issues. Our victories in Iowa and Vermont were perfect opportunity for Obama to start being that "fierce advocate" he promised to be. HE HAS IGNORED THEM BOTH.

[AnotherTry]

I hate to say I told ya so.

[SUIGENEROUSLA]

Great piece, though I am not clear that Prop 8 will be upheld -- if it is then the court would hold that there are no rights that cannot be overturned by a simple majority vote of the people -- no "inaleinable rights" as held by the CA constitution itself.

[Lazare]

I agree I'm not sure which way it will go. All the pundits were saying it was clear to them that the Cal Supreme Ct would let Prop 8 stand. But I watched the 3-hour session myself and I'd say it's still up in the air.

Justice Kennard in particular used certain phrases that sounded like she had clearly already decided to let Prop 8 stand.

But coming from a Justice, that could be a technique for challenging the lawyers to state their case in a certain way, not necessarily meaning that that was how she felt.

On the other hand I don't know her personality, so maybe she really was stating her opinion from the bench, rather than challenging the lawyers to state their case.

They noted that if the people of California approved an amendment to execute every pedestrian found guilty of jaywalking, then they would *find* a way to overturn that amendment.

So I still have a little hope. I think it would be a terrible precedent if they were to find that "fundamental rights" for a group of people already identified as suspect classification could be voted away by a simple majority popular vote.

I really don't see how they could justify that conclusion given their ruling last June. But we'll see.

[PhilipB]

Edward stein,
i appreciated your article.

[llisa]

Maybe now middle America will be taken more seriously?