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Open letter to readers: Today and tomorrow

By Lynda Waddington | 11.17.11

Wednesday was a difficult day for The American Independent News Network, which is the larger entity that operates The Iowa Independent. Our chief executive and founder announced two of our sister sites would close and their content would be moved to The American Independent.

ACS lockout continues; plan emerges to repeal sugar protections

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By Virginia Chamlee | 11.15.11

A recently introduced bill could have far-reaching impact on the U.S. sugar industry, including American Crystal Sugar, a farmer-owned cooperative that locked out 1,300 Midwest workers on Aug. 1.

Cain campaign: Farmers know more about regulations than EPA

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By Andrew Duffelmeyer | 11.15.11

The chairman for Herman Cain’s Iowa effort says the campaign “relied more on the word of farmers than Washington regulators” in deciding to run an ad containing claims the Environmental Protection Agency says are false.

Mathis wins, Democrats maintain Senate control

Liz Mathis
By Lynda Waddington | 11.08.11

The Iowa Senate will remain under the control of a slim 26-25 Democratic majority when it reconvenes in January 2012.

Press Release

PR: Nation should work to address veterans’ challenges

By Press Release Reprints | 11.11.11

BRUCE BRALEY RELEASE — As US involvement in Iraq and Afghanistan ends, it’s more important than ever that our nation works to address the challenges faced by the men and women who fought there.

PR: Honoring veterans, help in hiring

By Press Release Reprints | 11.11.11

CHUCK GRASSLEY RELEASE — A difficult job market is challenging the soldiers, sailors and airmen who have protected America’s interests by serving in the Armed Forces.

PR: In honor of America’s veterans

By Press Release Reprints | 11.11.11

TOM LATHAM RELEASE — No one has done more to secure the freedom enjoyed by every single American than our veterans and those currently serving in the armed services.

PR: Honoring and supporting our nation’s veterans

By Press Release Reprints | 11.11.11

DAVE LOEBSACK RELEASE — Veterans Day is an opportunity to reflect on the service of generations of veterans and to honor the sacrifices they and their families have made so that we may live in peace and freedom here at home.

Cautious court offers few clues to its thinking in same-sex marriage case

By Jason Hancock | 12.10.08 | 11:43 am

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.

Attorney Dennis Johnson speaks as the Iowa Supreme Court listened to oral arguments in Varnum v. Brien case, Tuesday, Dec. 9, 2008. (DES MOINES REGISTER POOL PHOTO BY JOHN GAPS III)

Plaintiff's attorney Dennis Johnson speaks as the Iowa Supreme Court listened to oral arguments in Varnum v. Brien case, Tuesday, Dec. 9, 2008. (DES MOINES REGISTER POOL PHOTO BY JOHN GAPS III)

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.

Follow Jason Hancock on Twitter


Comments

  • MarlaStevens

    They only have to rely on civil marriage being a fundamental right to use strict scrutiny — although it's obvious that gays are also a suspect class from the fact that gays suffer the highest per capita incidence of hate crimes (greater than any minority group according to the U.S. Department of Justice) and the fanatical opposition to civil marriage equality for same-sex couples plus the long history of other discrimination from the Inquisition to the disproportionately high number of gay minors turned out on the streets by intolerant parents (ask yourself how many black children are thrown out of their homes because their parents are upset that their children are black). Solicitor Johnson was right to call gays being a suspect class self-evident.

    That leaves only the issue of how to right the wrong of denying same-sex couples equal access to civil marriage law — either strike down the ban and allow the marriage licenses to be issued or strike it down but send it back to the legislature with instructions to come up with something equitable.

    But, as civil unions other than civil marriage cannot be made equal due to nonredundancy requirements in Iowa law, issues of portability across state and international borders, and the many issues presented by Brown vs. Board of Education that Solicitor Johnson raised, the only functional choice the legislature would have is civil marriage, so the court dumping it in the legislature's lap wouldn't make any sense. No, the only legal, sensible choice the justices have is to strike down the ban and let the marriages begin after giving the state a short time to figure out how to accommodate same-sex couples.

    Canada, for instance, calls both parties spouses and notes their respective sexes on the records, making geneaologists and others who use marriage records for research and other legitimate purposes happy while insulting no one as officiants are free to refer to people by bride and groom or whatever references suit them in their ceremonies.

    Note that the religious freedom guaranteed by both the Iowa and U.S. constitutions already protect the rights of same-sex couples to religious marriage in whatever faith will have them and the rights of those faiths that do not wish to marry same-sex couples not to marry them.

    Note, however, that religious approbation is not an acceptable defense to refusing someone a public accommodation even if a church runs the public accommodation separate from its sacred activities, such as when a church owns a business or rents apartments to the general public in a building it owns or takes tax money to run a program like a hospital or homeless services program. And an independent businessperson has to play by the rules of a fair and open marketplace no matter what his/her personal biases.

    I hope the wedding services industry in Iowa is gearing up for the extra business that might be coming their way!

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