Ten dishonest talking points on the marriage amendment in Iowa

A constitutional amendment to restrict marriage to couples of the opposite sex advanced on January 24 in both a subcommittee of the Iowa House Judiciary Committee and the full committee. House Joint Resolution 6 states, “Marriage between one man and one woman shall be the only legal union valid or recognized in this state.” Iowa Republicans have promised for months to approve a constitutional amendment overturning the Iowa Supreme Court’s 2009 decision striking down the state’s Defense of Marriage Act. This amendment goes further, barring any kind of legal union apart from marriage and therefore any legal recognition for same-sex relationships.  

After an emotionally charged subcommittee hearing with more than 200 observers present, Republicans Dwayne Alons and Chris Hagenow voted to advance the amendment, while Democrat Beth Wessel-Kroeschell voted no. Later in the day, the full House Judiciary Committee approved the bill on a 13 to 8 vote. Democrat Kurt Swaim joined all 12 Republicans in voting yes, while the other Democrats on the committee voted no. Click here for a list of House Judiciary Committee members.

Reading the news coverage of yesterday’s debate, I was struck by how many misleading talking points were used to justify denying rights and privileges to thousands of Iowans.  

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Iowa Department of Public Health having trouble with marriage equality

When some Republicans tried to convince county recorders not to issue marriage licenses to same-sex couples last April, Iowa Department of Public Health officials made clear that ignoring the Iowa Supreme Court’s Varnum v Brien ruling was not an option. Unfortunately, the IDPH has determined that marriage equality does not require equal treatment for married gay couples who become parents. Now IDPH Director Tom Newton has foolishly decided to fight a lawsuit brought by a married lesbian couple seeking to have the non-birthing spouse listed on their child’s birth certificate. Heather and Melissa Gartner sued senior IDPH officials on behalf of their daughter this week, having tried and failed to resolve the matter through administrative channels.

Based on advice from the Iowa Attorney General’s Office, the IDPH contends that the non-birthing spouse must complete the adoption process in order to be listed as the second parent on a child’s birth certificate, even if the child was born after the parents were legally married. I’m a big fan of Attorney General Tom Miller, but his office blew it on this one.  

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One simple question, three non-answers on marriage

Everyone who moderates a debate this year could learn from the journalists who guided the May 1 Iowa Republican gubernatorial candidates’ debate: Todd Dorman of the Cedar Rapids Gazette, Paul Yeager of Iowa Public Television, and Jeneane Beck of Iowa Public Radio. Too many journalists ask long-winded questions that are easy to evade, or ask about hot topics of no lasting importance, or ask about policies outside the scope of the office the candidates are seeking.

In contrast, almost every question the panelists asked during Saturday’s debate was direct and addressed an issue the next governor of Iowa will face. Here are a few examples:

“Can you name one service government provides today that it should stop providing in the interest of saving the budget?”

“If elected, will you continue to support the Iowa Values Fund, the business grant and loan program created during the Vilsack administration, and also the renewable energy grant program established by Governor Culver known as the Iowa Power Fund?”

“Is there a role that government should play in limiting premium increases by Iowa insurance companies?”

“Do you believe that obesity is a problem that should be addressed through government action such as limiting unhealthy ingredients in food?”

Mind you, asking a direct, unambiguous question doesn’t guarantee that you’ll get a straight answer from a politician. Look what happened when Dorman asked the Republicans, “Can you identify one tangible way Iowa has been harmed during a full year of legal same-sex marriage?”

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Marriage equality anniversary thread

One year ago today, the Iowa Supreme Court’s Varnum v Brien ruling went into effect. From April 27, 2009 through the end of last year, at least 1,783 same-sex couples received marriage licenses in Iowa. The real number is probably higher, because about 900 marriage licenses did not specify the gender of the couple involved. Despite a petition drive led by some Iowa Republicans and the Iowa Family Policy Center, not a single county recorder denied a marriage license to a same-sex couple.

Although all three Republican candidates for governor say they want to overturn the Varnum v Brien ruling, marriage equality is probably here to stay. Conservative groups are not urging voters to pass a ballot initiative calling for a constitutional convention, which would be the quickest path to amend the Iowa constitution. Bob Vander Plaats probably won’t win the Republican nomination for governor, much less the November election, and even if he did, his plan to halt gay marriage by executive order is a non-starter.

That leaves the self-styled defenders of traditional marriage one path: approving an amendment restricting marriage rights in two separately elected Iowa legislatures, then convincing a majority of Iowans to vote for that amendment (in November 2014 at the earliest).

Republicans have an outside shot at winning a majority in the Iowa House in 2010, but they have virtually no chance of taking back the Iowa Senate this year. Democrats currently hold a 32-18 majority in the upper chamber. A net gain of four or five seats is the best-case scenario for the GOP, and I consider a net gain of two or three seats much more likely. That leaves Senate Majority Leader Mike Gronstal in a position to block all efforts to bring a constitutional amendment on marriage to a floor vote during the 2011 and 2012 legislative sessions.

Gubernatorial candidate Rod Roberts claims he could force Democrats to allow a marriage vote. His plan is to veto all legislation, including the state budget, until the Iowa House and Senate have voted on a marriage amendment. I doubt a Republican could win that game of chicken even if Governor Chet Culver is defeated this November. Polling indicates that most Iowans are not eager to ban gay marriage and think the state legislature has more important things to do. Anyway, the most likely Republican nominee, Terry Branstad, has an incoherent position on gay marriage and probably would make only a token effort to get a constitutional amendment passed.

Share any thoughts about same-sex marriage in Iowa in this thread.

Speaking of civil rights, some reports indicate that the House of Representatives will vote this year to repeal the military’s “Don’t Ask, Don’t Tell” policy, which has ended far too many military careers. Click here to read a moving open letter to President Obama from an Air Force major who was discharged under Don’t Ask, Don’t Tell.

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Varnum v Brien anniversary thread and linkfest

One year ago today, the Iowa Supreme Court unanimously ruled that our state’s Defense of Marriage Act violated the equal protection provision of the Iowa Constitution. From the day that ruling went into effect through the end of 2009, at least 1,783 same-sex couples received marriage licenses in Iowa. The real number is probably higher, because about 900 marriage licenses did not specify the gender of the couple involved.

Follow me after the jump for a review of news about marriage equality in Iowa, stories featuring happy couples, and thoughts about the future politics of this issue.  

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Iowa Republicans, make up your minds about "activist judges"

Next week will mark the first anniversary of the Iowa Supreme Court’s ruling in Varnum v Brien. Seven justices unanimously concluded that the section of the Iowa Code enacted through our state’s Defense of Marriage Act violates the equal protection provision of the Iowa Constitution. Since the day that decision was announced, many Iowa Republicans have called for overturning the court’s ruling. Some have denied that county recorders were obliged to implement the ruling, or insisted that government officials may ignore a court’s opinion about the constitutionality of a law. Others have called on Iowans to vote against retaining justices who supposedly overreached their authority. For example, gubernatorial candidate Rod Roberts said last November,

“We need to send a message to the Iowa Supreme Court that they are accountable to the people of Iowa,” said Roberts, who has made restoring the role of the people in state government a centerpiece of his campaign. “The problem with judicial activism is that it thwarts the will of the legislature and of the people of Iowa.”

Now that Congress has approved a health insurance reform bill Republicans don’t like, some GOP politicians have decided judicial activism isn’t so bad after all. Gubernatorial candidate Bob Vander Plaats pledged to “invoke the Constitution’s 10th Amendment to protect Iowans from new federal mandates” on health care. Rod Roberts followed Vander Plaats’ lead:

Roberts said that if the federal government passes a nationalized health care plan that conflicts with the Roberts Amendment, as governor he will file a lawsuit in federal court against President Obama to have the plan struck down as a violation of Iowans’ Tenth Amendment rights. The Tenth Amendment to the U.S. Constitution provides that powers not delegated to the federal government (such as the regulation of health insurance) are reserved for the states.

Gubernatorial candidate Terry Branstad also supported the idea of using the courts to nullify the will of Congress: “Given the massive scope and effect of this [health insurance reform] bill, it is likely that various provisions will be challenged in the courts. Those challenges are both timely and appropriate.”

Any constitutional lawyer can tell you that the U.S. Supreme Court has long affirmed the power of Congress to regulate interstate commerce. Law professor Mark Hall explains in detail here why constitutional arguments against an individual mandate to purchase health insurance are wrong. As for the broader 10th amendment claim that the constitution doesn’t empower the federal government to regulate health insurance, Hall notes, “Congress has ample power and precedent through the Constitution’s ‘Commerce Clause’ to regulate just about any aspect of the national economy.”

Conservative legal scholar Eugene Volokh likewise does not find the constitutional arguments against health insurance reform convincing:

While I agree that the recent commerce clause cases hold that Congress may not regulate noneconomic activity, as such, they also state that Congress may reach otherwise unregulable conduct as part of an overarching regulatory scheme, where the regulation of such conduct is necessary and proper to the success of such scheme. In this case, the overall scheme would involve the regulation of “commerce” as the Supreme Court has defined it for several decades, as it would involve the regulation of health care markets. And the success of such a regulatory scheme would depend upon requiring all to participate. (Among other things, if health care reform requires insurers to issue insurance to all comers, and prohibits refusals for pre-existing conditions, then a mandate is necessary to prevent opportunistic behavior by individuals who simply wait to purchase insurance until they get sick.)

The U.S. Supreme Court could overrule the will of Congress on health insurance reform only by reversing several decades of precedent about the definition of commerce. That’s textbook “judicial activism,” but it’s ok with some Iowa Republicans if it achieves the political end they are seeking.

By the way, Vander Plaats claims that as governor, he could issue an executive order halting same-sex marriages in Iowa. I wonder if he also thinks President Barack Obama could issue an executive order overturning a possible Supreme Court ruling against health insurance reform.

UPDATE: Kevin Drum considers prospects for a lawsuit challenging the individual mandate to buy health insurance. He makes the same point about Congressional authority to regulate interstate commerce and adds,

What’s more, the penalties for not buying insurance are tax penalties, and if anything, Congress has even wider scope in the tax area than in the commerce area. The Supreme Court has frequently ruled that Congress can pass tax laws that essentially force people to do things that Congress doesn’t have the direct power to require.

[…]here’s the thing: if the Supreme Court decided to overturn decades of precedent and strike down the mandate even though Kevin Drum says they shouldn’t (hard to imagine, I know), the insurance industry will go ballistic. If they’re required to cover all comers, even those with expensive pre-existing conditions, then they have to have a mandate in order to get all the healthy people into the insurance pool too. So they would argue very persuasively that unless Congress figures out a fix, they’ll drive private insurers out of business in short order. And that, in turn, will almost certainly be enough incentive for both Democrats and Republicans to find a way to enforce a mandate by other means. If necessary, there are ways to rewrite the rules so that people aren’t literally required to get insurance, but are incentivized so strongly that nearly everyone will do it. As an example, Congress might pass a law making state Medicaid funding dependent on states passing laws requiring residents to buy insurance. Dependent funding is something Congress does routinely, and states don’t have any constitutional issues when it comes to requiring residents to buy insurance. They all do it with auto insurance and Massachusetts does it with health insurance.

Like Drum, I view these proposed legal challenges as Republican posturing rather than a serious threat to nullify the law Obama signed this morning.

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