Iowa – the Next State to Legalize Gay Marriage?

The gay marriage debate moves to the Midwest this week as the Iowa Supreme Court hears arguments in a challenge to the state's ban on same-sex marriage.

If the high court rules in favor of the half-dozen gay couples who sued, it would make Iowa the fourth state after Massachusetts, California and Connecticut to uphold the right of same-sex couples to legally marry. In California, however, voters have negated the courts by amending the state constitution to ban gay marriage.

The Iowa case has been moving through the legal system for more than three years, and it could take a year or more for the state Supreme Court to issue a ruling after hearing oral arguments Tuesday morning.

Camilla Taylor, an attorney for Lambda Legal, a gay rights organization representing the gay and lesbian couples behind the lawsuit, said the state has historically been a leader in supporting minority and women's rights.

"Iowa has an opportunity to play the role that it often has played in the past — being at the forefront of civil rights struggles — often long before other states were willing to be similarly courageous," she said. "This is not an uncomfortable role for Iowans, and we are looking at them to make a reality out of the promise of equality in the Iowa Constitution."

Lambda Legal filed the lawsuit in 2005 on behalf of six Iowa couples who were denied marriage licenses, as well as three of the couples' children. It names former Polk County recorder and registrar Timothy Brien.

The lawsuit prompted a ruling in August 2007 by Polk County District Court Judge Robert Hanson, who said a state law allowing marriage only between a man and a woman violated the constitutional rights of due process and equal protection.

After that ruling, nearly two dozen people applied for marriage licenses, but only one couple managed to get married before Hanson stayed his decision the next day in anticipation of the state's appeal to the Supreme Court. The marriage of Sean Fritz and Tim McQuillan of Ames stands, although its validity could depend on the high court.

The Polk County attorney's office declined to comment on the pending case. In court documents, it has criticized the lawsuit as an attempt to shift public policy decisions from the Legislature to the courts.

Maggie Gallagher, president of the Manassas, Va.-based Institute for Marriage and Public Policy, a conservative group that opposes same-sex marriage, said Americans have repeatedly made clear that they want traditional marriage protected.

"I think it has to be clear to judges that Americans do care about this issue, and in 30 out of 30 cases, when they've been allowed to vote, they say that same-sex marriage is not a civil right," she said. "Americans don't think that two men in a union are just the same as a husband and wife, and they don't really appreciate the idea that the legal system is going to force them" to accept that.

However, Aderson Francois, a law professor who heads Washington-based Howard University's Civil Rights Clinic, said that while a majority of Americans may oppose gay marriage, it should be left to the courts to decide issues of constitutional equality.

"It doesn't really matter whether a majority of people want to deny that right; the constitution simply doesn't provide for that," he said.

Francois predicts that the Iowa Supreme Court, like other courts, will rule in favor of the gay couples.

"On the pure legal, constitutional issue, it's close to a no-brainer that two adults ought to have the right to marry whoever they choose — that the state ought not to be preventing that," he said.

Iowa has a history of favoring minority rights. In its first decision in 1839, the state Supreme Court said a Missouri slave who traveled to Iowa to earn money for his freedom was not a fugitive. The state was the first to admit a woman to the bar in 1869, three years before the U.S. Supreme Court said women didn't have the right to practice law. The court also issued early rulings against racial segregation.

The plaintiffs in the gay marriage lawsuit include Dawn and Jen BarbouRoske of Iowa City, who have two daughters and said they want their relationship and their family to be fully recognized under the law.

Jen BarbouRoske tells of searching for a preschool for their daughter and almost settling on a place before being told the girl wouldn't be allowed to talk about her family during family units. In court records, Dawn BarbouRoske expressed her worries over a medical condition her partner suffers from that could require hospitalization and once required an emergency room visit.

"I was terrified that the hospital staff would refuse to recognize our relationship, and that I would not be permitted to stay by her bedside," she said.

Dawn BarbouRoske said in an interview that they want people to understand they are "just everyday folks" who are seeking the same rights as other Iowans.

"We just happen to be in love with someone of the same sex. We are committed to our community, our neighborhood and taking care of our kids," she said. "When it comes down to it ... whether you agree or not about same-sex marriage, it really is a basic civil right."