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April 26, 2009

Drama Before Iowa Marriage Decision Takes Effect
UPDATE: Poll Added

There have been several developments in Iowa over the past few weeks. The Iowa Supreme Court's marriage decision will go into effect on Monday and both sides of the vigorously ongoing debate are ready for more drama.

Two Wednesdays ago, an assistant for a Republican state representative called a county recorder and asked her not to issue marriage licenses to gays because the Iowa Supreme Court decision is "just an opinion." The representative, Kent Sorenson, says he didn't ask his assistant to make the call. It touched off a new, more contentious phase to preparations.

The next day, a spokeswoman for the Iowa Department of Public Health sent an email to Iowa's 99 country recorders telling them they are required to comply with the decision, no exceptions.

The same day, state Senator Merlin Bartz and other Republicans attempted to insert language into a bill which would have provided a "right to conscience" exception for county recorders who don't want to issue marriage licenses to gays. He was blocked by the Democratic leadership on procedural grounds.

On Monday, Bartz and the Iowa Family Policy Center began circulating petitions encouraging Iowa's 99 county recorders to refuse to issue marriage certificates to gay couples.

On Wednesday, Iowa Attorney General Tom Miller issued a statement that has been construed as threatening to county recorders (classy headline, BTW):

"We expect duly-elected county recorders to comply with the Iowa Constitution as interpreted unanimously by the Iowa Supreme Court, the highest court in Iowa," Miller said in a statement to the Iowa Independent. "Our country lives by and thrives by the rule of law, and the rule of law means we all follow the law as interpreted by our courts ó not by ourselves. We don't each get to decide what the law is; that would lead to chaos. We must live by and follow what the courts decide."

"Recorders do not have discretion or power to ignore the Iowa Supreme Courtís ruling," Miller said, adding: "If necessary, we will explore legal actions to enforce and implement the Courtís ruling, working with the Iowa Department of Public Health and county attorneys."

Also on Wednesday, the Alliance Defense Fund, a Christian legal organization that I have bad-mouthed before, announced it will provide legal services for any recorder who refuses to provide marriage certificates as an exercise of conscience.

The other side of the marriage coin is state judges who are empowered to perform marriages. One judge has announced that he will simply perform no marriages at all, partially as a result of the decision. He notes that he didn't know until recently that it was a discretionary function and he has had reservations about providing some straight marriages. The AG confirms that if a judge wishes not to perform marriages, she does not have to; however, she cannot choose to perform only straight marriages.

Monday will be the first day gay couples can apply for marriage licenses. Generally, there is a three day waiting period between application and grant of a license. However, that delay can be waived by judges. So sometime next week the first gay marriages in Iowa will occur.

Finally, there's one other wrinkle. I can't decide which side this is going to annoy more, but it's going to be difficult to tell how many gay couples are getting married in Iowa because some county recorders do not make marriage applications available as public records.

Conscience exceptions have been gaining steam for the past year. Vermont included some in its recently passed marriage law. Connecticut, which passed a marriage law this week as the result of a court order, also included protections for churches and some other groups. In fact, because Connecticut was required by its Supreme Court to make marriage available to gay couples, the debate over the law largely focussed on how broad to make the conscience exception.

What do you think:

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posted by Gabriel Malor at 10:07 AM

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