The Iowa Supreme Court will not end the political battle over gay marriage

At 10 am central time this morning, the Iowa Supreme Court will hear oral arguments in Varnum v Brien, a case in which six couples are challenging Iowa's law declaring that "Only a marriage between a male and female is valid." Polk County has appealed a district judge's ruling last year that the statute is unconstitutional. Last night jpmassar published a good overview of the legal issues underlying Judge Robert Hanson's ruling as well as the county's defense of the statute. (See also Osorio's legal primer on the case.)

If you like, you can watch a livestream of the oral arguments at the Iowa Supreme Court's website as well as at several other media sites. You can download pdf files of the district court ruling and the briefs submitted to the Iowa Supreme Court on appeal here.

My focus in this diary is not the legal arguments, but the political case that will need to be made for marriage equality once the Supreme Court has ruled on Varnum v Brien several months from now. Follow me after the jump for more.

I have no idea how the high court will rule. Marriage equality advocates I have spoken with believe there is a realistic chance that Iowa's "defense of marriage act" will be overturned and Judge Hanson's ruling upheld. At the same time, no one believes this outcome is a sure thing. While five of the seven justices on the Iowa Supreme Court were appointed by Democratic governors, the court has never considered a gay marriage case before, so it is hard to say how the individual judges would be inclined to view Hanson's reasoning.

For better or worse, the Iowa Supreme Court's ruling is likely to be the last word legally on gay marriage in Iowa for at least a few years. Amending the Iowa constitution is relatively difficult. If the court overturns current state law, a constitutional amendment banning gay marriage would need to be approved by two consecutive legislative sessions (the 2009/2010 session and the 2010/2011 session) before going to the public in a general-election referendum. So, the earliest Iowa voters would be able to weigh in on this issue would be in November 2011.

My understanding is that Democratic leaders in the Iowa Senate (where Democrats have a 32-18 advantage) are committed to blocking any Proposition 8-style constitutional amendment. The 56-44 Democratic majority in the Iowa House may or may not be solid on this issue.

On the other hand, if the Iowa Supreme Court overrules Judge Hanson and finds the current statute constitutional, I do not expect Democratic leaders in the legislature or Governor Chet Culver to put their political weight behind repealing the "defense of marriage act." So, full marriage rights for gays and lesbians in Iowa would probably be blocked for at least a few years in that scenario.

Even if the legal issue appears to be resolved, it's clear that gay marriage will remain a salient political issue for some time after the Iowa Supreme Court's ruling.

If the court overturns the law, the Republican Party of Iowa is likely to make a Prop 8-style crusade against gay marriage a major focus of its strategy going into the 2010 elections--especially if the state House or Senate blocks a constitutional amendment. Those who support marriage equality will need to back up Democratic politicians who stand with us on this issue, because there will be immense pressure to cave from some Democrats who are either social conservatives or who represent marginal districts. We will need to help move public opinion toward accepting gay marriage as a legal reality that does not threaten the institution of marriage for others.

If the court upholds the law, advocates for marriage equality will need to work on getting the Iowa legislature to approve, and Governor Culver to sign, some kind of legal recognition for gay couples. But again, the Republican Party of Iowa is likely to be aggressive in advocating against civil unions or any official recognition for same-sex relationships. Public education will be needed to give our Democratic legislators the political will to pursue this course. (Few socially moderate Republicans remain in the Iowa legislature.)

The good news is that Iowans already seem broadly supportive of legal recognition for same-sex couples. A Big Ten poll taken in October indicated that 28 percent of Iowans support gay marriage rights, with another 30 percent backing civil unions:

The poll showed that with a Supreme Court ruling, support for marriage increases to 35 percent, with another 27 percent supporting civil unions but not marriage.

That's before the full-court press the right-wing noise machine is sure to make on this issue, no matter what the Iowa Supreme Court decides.

Shortly before Thanksgiving, I put up a post at Bleeding Heartland making fun of the American Family Association's DVD called "They're Coming to Your Town." You can view the unintentionally funny DVD trailer and read the transcript here. The tone of its dire warnings about the gay agenda reminded me of a satirical piece in The Onion: I'm Not One Of Those 'Love Thy Neighbor' Christians. To my surprise, my post prompted this reply from a conservative Republican who occasionally comments at Bleeding Heartland:

There's a difference  (0.00 / 0) [delete comment] my book anyway, between a "gay" as you call them and a "gay activist" as the AFA refers to them in their promo.

Gay activists aren't the loving couple who lives down the street; they're the mouthy, in-your-face types who want to force everyone to accept, without question, their lifestyle.

This line of attack strikes me as potentially effective, and not only with religious conservatives who will never tolerate gays for theological reasons.

In order to combat Republican efforts to reverse marriage equality or block civil unions (depending on the Iowa Supreme Court's ruling), we need to connect with those Iowans who may not mind that "loving couple" living quietly down the street, but resent the "in-your-face types" who want official recognition of their status.

I would appreciate input from anyone involved in voter persuasion during the recent campaign in California. It seems to me that the two most important groups to focus on are:

1. People who are happy to take a live-and-let-live approach to gays, but don't see why the state should recognize their relationships.

Obviously, married couples enjoy many benefits not extended to unmarried couples. If you volunteered for the No on Prop 8 cause, what did you find to be effective points to bring up with voters?

Were people more likely to be supportive if reminded of the tax and other economic benefits granted to married couples? Or was it more useful to remind people of the potential harm suffered by couples lacking legal recognition, such as the chance that unsupportive relatives would bar a life partner from being with a sick or dying person in the hospital?

2. People who would support civil unions but are for whatever reason uncomfortable about the idea of gay marriage. If the Big Ten poll cited above is accurate, as many as 30 percent of Iowans fall into this category.

California blogger atdleft recently wrote,

I occasionally ran into this problem when I was out campaigning against Prop 8 in California. There would always be a few who'd ask me why we couldn't be happy that domestic partnerships "are just like marriage". I'd respond that domestic partnerships are not "just like marriage" because they're not marriage and they only provide 1/3 the same rights as marriage, as the other 2/3 are federal rights that are blocked under DOMA.

I just don't get it. On one hand, straight Americans seem more accepting of LGBT people than ever before. They support hate crimes laws, open military service, adoption rights, and essentially all the rights of marriage for gay & lesbian couples. But for some reason, people still stop and freak out over that one actual word: marriage.

Making gay marriage legal will not "force" any individual or church to "accept, without question, their lifestyle." It's vital for people to understand that clergy will not be forced to officiate at gay weddings. My own temple's rabbi, who has officiated at same-sex ceremonies in our congregation, declined to marry Iowa's only same-sex couple to be legally wed following Judge Hanson's ruling last year. He released a statement explaining his position:

I wouldn't have done this particular ceremony because NEITHER was Jewish in the first place. Instead I would have referred them to Rev. Mark Stringer of the Unitarian Church, who I know is a strong proponent of civil marriage and same sex ceremonies and who eventually did the marriage anyway. I commend him for so doing. [...] For those interested, I both support Civil Marriage and I would do a same sex commitment ceremony, but my requirements for so doing would be EXACTLY the same as for a non-homosexual couple. Someone has to be Jewish and the couple must either be prepared to raise their children as Jews or have discussed it and not decided. I do not act as "Justice of the Peace" in a secular capacity. When I do weddings of any kind, I represent the Reform Jewish tradition in general and my beliefs as a Reform Jewish Rabbi in particular. I am there as a Rabbi, not as Justice of the Peace. Meanwhile, let me offer a hearty Mazal Tov to Sean and Tim."

By the same token, religious institutions will not be forced to recognize gay marriages, just like legalizing divorce did not force churches to recognize divorces or remarriages.

Letting couples tell their own stories about why they want to be married is going to be a central part of any public campaign to increase support for gay marriage.

But I've also been wondering if we need to reassure people who are uncomfortable that they will still be able to disapprove of gay couples, even those who are legally married. Telling people that they're wrong to be intolerant could backfire, especially if we're dealing with an emotional issue. It might be more effective to make people understand that we hear and acknowledge their views.

Most of us can think of marriages we don't approve of. Depending on your values, that could be 17-year-olds who dropped out of high school, a couple who are several decades apart in age, a professor marrying a former student, an impulsive remarriage after someone was widowed, an "open marriage" between non-monogamous heterosexuals, or a person who appears to have married a rich person for money. I know people who disapprove of my own marriage, because my husband is not Jewish. But no one would dispute that all of these marriages are valid under state law.

In an ideal world, I would want everyone to accept all loving couples and not be judgmental, but I think we need people to understand that they can still disapprove of gay marriage, even if it is legal. Widespread tolerance of gay relationships would be great, but it is not essential.

I doubt this script would be in any LGBT group's talking points, but I wonder if it would help to convey this kind of message to reluctant voters:

I hear what you're saying. For some people, gay marriage just goes against their values. I feel the same way when I look at some couples who probably got married for the wrong reasons. But I figure, just because someone gets a marriage license doesn't mean I have to agree with their personal choices.

This could be a way of finding common ground with people who don't object to what gays and lesbians do in their private lives, but are resistant to the state putting the "marriage" label on those relationships.

Again, I would welcome input from anyone who has done public education or voter persuasion on marriage equality.

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