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Cautious court offers few clues to its thinking in same-sex marriage case
The legal challenge to Iowa’s same-sex marriage ban is now in the hands of the seven justices of the state Supreme Court, and legal observers say there is no clear signal of how they will ultimately rule.
The Court heard oral arguments in the case Tuesday.
“The justices highlighted some of the issues that they thought were the most complicated and needed the most analysis,” said Ann Estin, professor of law at the University of Iowa College of Law. “But I don’t think we can tell who is going to vote which way based on what happened [Tuesday].”
Dennis Johnson, a Des Moines attorney representing six gay couples challenging the same-sex marriage ban, and Roger Kuhle, who represented Polk County and defended the ban, were both peppered with questions by each justice, ranging from whether the function of marriage throughout history has been procreation, to whether gay marriage would open the door to polygamy or bigamy.
The grilling caused both sides to exceed their allotted 30-minute limit to make their arguments but yielded little insight into how the justices are looking at the case.
“I’m not sure anyone outside of the conference room where the justices will discuss this has any idea how the Court will put this together,” Estin said.
Mark Kende, the James Madison Chair in constitutional law at Drake University Law School, said the history of the court, as well as the controversial nature of the case, doesn’t help those looking for clues, either.
“The modern Iowa Supreme Court typically has not been one of the courts in the country that gets way ahead of popular opinion, so in that sense, it would be a little unusual to rule in favor of gay marriage,” he said. “On the other hand, the court was way ahead of the U.S. Supreme Court in the 19th century in terms of racial equality.”
Iowa rejected the ban on interracial marriages more than 100 years before the U.S. Supreme Court did so in the 1967 case Loving v. Virginia. This precedent of tolerance by the state court offers hope to proponents of same-sex marriage.
While most of the attention has centered on whether the Court will overturn the state’s Defense of Marriage Act, thus legalizing same-sex marriage, or rule that it is constitutional, a third option still exists, Kende said.
In his 2007 decision striking down Iowa’s prohibition of same-sex marriage, Polk County Judge Robert Hansen ruled that some of the expert testimony submitted by the government was inadmissible. Assistant Polk County Attorney Roger Kuhle argued today that this was a mistake.
Kende believes that the court “could decide that the lower court was wrong and send [the case] back for more information. Now, the court is supposed to be somewhat respectful and deferential to the lower court’s decision in that area, but the possibility remains.”
Estin said that scenario is possible but not likely.
“My best guess is that they won’t do that,” she said. “The plaintiffs argued that all that evidence is on the record and available to the Supreme Court to look at if they want to. That makes me think that there wouldn’t be much accomplished by remanding it to the lower court and I think both sides agree on that. What they disagree on is whether these affidavits should be considered.”
Kende agreed with former Iowa Supreme Court Justice Mark McCormick, who told the Iowa Independent that the case will ultimately be decided based on which standard of review it applied to the case.
“If they use a strict scrutiny, then I think the plaintiffs will be victorious,” he said. “If they use a more lenient scrutiny, sometimes called a rational basis, the defendants will probably win.”
Estin said the arguments Tuesday should put to rest concerns from both sides that the decision won’t be fair.
“This is a very good and careful court,” she said. “I think they’ll treat this issue thoughtfully. Whether we like the decision they come to, no one could listen to the arguments today and not hear a court very carefully weighing the difficult questions that are in front of them.”
A decision in this case is not expected for several months. It took two years for a similar case to be decided by Connecticut’s Supreme Court.