Don't make gay spouses adopt their own children

The Iowa Attorney General's Office has advised the Iowa Department of Public Health that a married lesbian who gives birth cannot list her spouse on the child's birth certificate, according to Michael Gartner's must-read scathing commentary in this week's Cityview. Excerpt:

[Attorney General Tom] Miller's lawyers based their advice on the fact that the decision made no direct reference to the Iowa Code section on birth certificates, which refers to "husband." "The Supreme Court ruling "does not authorize an interpretation of chapter 144 (vital statistics, including birth certificates) in a manner that would allow for a same-sex spouse to be automatically listed as the parent on birth certificates," they said. And, insultingly and gratuitously, they added: "Using the adoption process is the best way to protect the interests and rights of all parties involved."

How shameful.

For more than 125 years, the Iowa Supreme Court has consistently ruled that a child born in wedlock is presumed to be the legitimate child of the woman and her spouse - even if the woman was pregnant by another man at the time of the wedding, even if the woman was impregnated by another man during her marriage. "The law presumes that a child born in wedlock is legitimate," the court said in 1882. More than 100 years later, in 1995, the court ruled in a similar case that "the state's interests involve preserving the integrity of the family [and] the best interests of the child...." Yes, "the best interests of the child."

The Iowa Code couldn't be clearer. Section 252 says: "A child or children born of parents who, at any time prior or subsequent to the birth of such child, have entered into a civil or religious marriage ceremony, shall be deemed the legitimate child or children of both parents, regardless of the validity of such marriage." And the Supreme Court says gays can marry one another.

Go read Gartner's whole piece, which highlights key passages from the Iowa Supreme Court ruling in Varnum v Brien. He also points out that adopting a child involves significant time and expense.

I'm surprised that the Attorney General's Office would give the Iowa Department of Public Health bad advice on this matter. Tom Miller strongly praised the court's "clear and well-reasoned opinion" the day Varnum v Brien was announced. Miller's advice helped persuade Governor Chet Culver not to seek to overturn the ruling. Assistant Attorney General Heather Adams wrote a memo reminding all Iowa county recorders that they must comply with the decision and issue marriage licenses to same-sex couples.

The Iowa Department of Public Health should give married spouses equal protection under the law.

  • Job for the legislature

    I think Miller is wrong here, and that if a lawsuit were filed by the non-bearing spouse of a same-sex couple, she would win.  However, the advice he is giving is the safest - making sure that no matter what the rights of both spouses will be protected, through adoption.

    There are probably dozens of problems like this throughout the Iowa code - I know the legislators are probably loathe to get involved in this issue given that they have been able to mostly avoid it to this point, but cleaning up the Iowa code is their job.

    • we don't need new legislation

      to amend every part of the Iowa Code affected by the Varnum v Brien ruling.

      Making same-sex couples go through a lengthy and costly adoption process seems to clearly put an extra burden on them compared to other married couples.

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