Nan Hunter

Iowa marriage argument - good try

Filed By Nan Hunter | December 10, 2008 1:00 PM | comments

Filed in: Living, Marriage Equality, Politics, The Movement
Tags: gay marriage, Iowa, Iowa marriage, Iowa marriage court case, Iowa Supreme Court, law, marriage discrimination, marriage equality, same-sex marriage

Lambda Legal did their usually excellent job of lawyering with the challenge to the Iowa marriage law that was argued this morning before the Iowa Supreme Court. (Kudos to lead counsel Camilla Taylor!) But the court did not seem particularly receptive. (You can watch a webcast on the Des Moines Register web page; read the briefs at the court's web page.) Although one can never confidently predict an outcome from hearing the argument, since judges routinely play devil's advocate with their questions, I would be very surprised if this case puts Iowa into the short list of states with marriage equality.

The attorney defending the law (a mini-DoMA adopted 10 years ago) warned that radical homosexuals (ok, he didn't say that, but he communicated that) were out to "destroy marriage to gain equality." So to save marriage, we have to deny ... You get it.

It's laughable as a legal argument, but an effective sound bite, not least because the response is always to fall into the trap of arguing, oh no, we love marriage, it's great, fabulous, just what we've always wanted, bring on the drunken dancing relatives.

Most of the arguments in defense of the exclusion were same old, same old: that polygamy is around the corner; that in a few generations, the legality of same-sex marriage might somehow discourage different-sex couples from marrying (a horrific prospect, all agreed), and that the goal of preserving a traditional institution could satisfy a rational basis test. The court was having none of the attempt to secure a heightened scrutiny standard.

Several judges expressed discomfort that the trial court had excluded some of the state's expert witnesses as unqualified. However, all of the depositions and statements were in the record (even if excluded as evidence), and Lambda's local counsel who argued the case (quite well, I thought), invited the justices to basically just read the materials if they were curious. Technically, the court could rule that the exclusions were error and send the case back to the trial level, with instructions to consider the state's evidence and rule again, but I doubt that will happen.

To quote literally the last words spoken before the court, which sounded more like a Rorschach response than a legal argument: "when family life is good, life is good." The attorney for the state, who said it, apparently thought that the meaning of that particular Hallmark phrase was not only self-evident but also presumptively universal. And that assumption pretty much says it all.

(Cross posted at hunter of justice)


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Justin Uebelhor | December 10, 2008 4:41 PM

Nan,

I disagree with your analysis. I watched the arguments in the courtroom here in Iowa and our impression was much different than yours. Iowa Lawyers I spoke with after the case were also optimistic that the Court had prepared so well for the case and offered intelligent questions.

Many judges seemed uncomfortable with the poor arguments and preparation of the opposition. Time and time again, opposing counsel was unable to answer their legal questions. I suggest others watch the arguments themselves and come to their own conclusions.

I hope you're right. There is no question that Lambda's case was presented well (as I said), and the government's arguments were weak. Unfortunately, that does not necessarily prevent a bad result. We'll all find out in a few months.

We saw the same thing in Indiana. The Deputy Atty General stumbled and stammered, and had to be spoon-fed his arguments. Even so, the Court of Appeals sided with them.

On a measure like this, the justices almost always have their minds made up in advance. I think the best result we can hope for is a civil union ruling.

And Lucrece, Iowa is not blood red by any means. When Bush won it in 2004, it was somewhat of an upset. Senator Harkin is very liberal, and wins re-elections with ease. They have had Democratic governors for several terms (which may be what wins the day).

I agree with Justin. The opposition did terribly, constantly stammering and repeating their position instead of answering the questions. That lawyer was anything but eloquent. Lambda, on the other hand, did fabulously, with some slight tumbles in the polygamy point (which he later recovered from; Wiggins is a tough justice) and and the excluded evidence.

Besides that, I found the justices to be rather receptive to the arguments of the pro-gay marriage side.

My worry is that if the court rules in our favor, couldn't they just do a constitutional amendment ala CA? Iowa being blood-red, it would pass with ease.

lucrece, iowa has an advantage that california hasn't had to date. a constitutional amendment in iowa would have to pass the legislature with a simple majority twice before it would be put before the people. in massachusetts this is also the case, and amendments have thus far fizzled out in the legislature. iowa is pretty progressive for the middle of the country; i'm going to be optimistic and say they would have a good shot.

(the cases in california are arguing that prop 8 should have gone before the legislature first; of course we don't know the outcome yet.)

That's the same way our amendment process works in Indiana. Twice through the legislature in consecutively elected sessions and then on to the people.

I saw the arguments in court and I thought it went remarkably well for Lambda.

It was my impression that Appel is very interested in prudent law, and he asked hard hitting questions of both sides. I thought it was promising that his and other questions were much more detailed and legally oriented for the prosecution than the defense.

Wiggins seemed hostile to both sides, and he seems to like playing the counterpoint to find weak arguments. On the large though, Wiggins didn't seem impressed by the defense council's reliance on talking points.

I didn't really get a good characterization of the other judges though they seemed more interested in complex legal issues when the prosecution argued and at times seemed to be asking the defense to make any case at all

In my gut I thought it reasonable that we might expect a 5/1/1 marriage/civil unions/reject under rational.

Michael Crawford Michael Crawford | December 10, 2008 7:52 PM

I believe that each victory leads us forward to the day when same-sex couples can marry in all 50 states. That day will come and we should do everything we can to hasten that day.

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