In a case that could make Iowa the first Midwestern state to legalize same-sex marriage, the Iowa Supreme Court on Tuesday pressed lawyers for both sides with sharp questions on topics like the 4,000-year-old history of marriage and whether a ruling favoring gay couples would open the door to polygamy.
The legal core of the case, Varnum v. Brien, is whether the state’s 10-year-old law defining a “valid” marriage as only “between a male and female” violates the Iowa Constitution’s guarantees of equal treatment and due process.
A trial court judge ruled last year that the law was unconstitutional and that a dozen gay men and lesbians had been wrongly denied marriage licenses in Polk County, which includes the state capital, Des Moines. The state appealed the ruling, leading to Tuesday’s oral arguments.
But the technical details of the law and the Constitution were only part of a free-wheeling discussion lasting nearly two hours in which the seven justices repeatedly interrupted the lawyers, demanding that they parse and defend their positions.
Where was the line, they asked, between religious and governmental interests in definitions of marriage? How did the state’s defense of the law defining marriage differ from the way it might have once defended now-defunct laws barring interracial marriage? Would allowing same-sex marriage encourage more gay couples to adopt, and was there anything wrong with that?
An assistant attorney for Polk County, Roger J. Kuhle, said the core of marriage, historically, was about children and creating stable systems for procreation.
“The essential factor of marriage, which is procreation, which is raising children, which is replenishing society, has never changed,” Mr. Kuhle told the court.
Justice David S. Wiggins then pointed out that society’s notion of what was acceptable in marriage had evolved over time.
“Thirty years ago you couldn’t have interracial marriage — I mean things are just changing,” Justice Wiggins said. “Is marriage, as you call it, a static relationship?”
But the panel was equally tough in pressing Dennis W. Johnson, the lawyer for the gay couples, led by Katherine and Patricia Varnum of Cedar Rapids. At one point several justices asked Mr. Johnson whether opening the door to same-sex marriage by striking down the state’s law defining marriage might allow marriages of more than two people.
It would not, he responded, because the body of law that has evolved around the institution of marriage is premised on two consenting adults. Gender, he said, is irrelevant to that institutional framework.
When asked whether recognizing same-sex marriage would not in fact change the institution itself, Mr. Johnson responded: “We’re not suggesting a new institution. We’re suggesting that everyone be able to participate equally.”
In his lower-court ruling, which found for the gay plaintiffs, Judge Robert B. Hanson of the Fifth Judicial District was sweeping in his dismissal of the state’s claims that heterosexual marriage was bolstered by an exclusionary definition.
“The law is extremely over-inclusive in its attempt to strengthen heterosexual marriage and procreation by preventing an entire distinct group of individuals — homosexuals — from marrying,” Judge Hanson wrote.
Judge Hanson said that Iowa law already allowed gay couples to adopt children, and that of the more than 5,800 same-sex couples in the state, 37 percent were raising children under age 18.
Laws barring same-sex marriage have been struck down by state courts in Massachusetts, in 2004, and in Connecticut and California this year. But public attitudes have not entirely kept pace with those legal shifts. Voters in three states approved same-sex marriage bans in last month’s elections, including in California, where they essentially nullified the State Supreme Court’s ruling by passing an amendment to the State Constitution that recognizes marriage only between a man and a woman.
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