Iowa Supremes Hear Gay Marriage Arguments

Yeesterday morning, the Iowa Supreme Court heard oral arguments in the case of Varnum vs. Brien regarding the constitutionality of Iowa's so-called "Defense of Marriage Act". Passed in 1998, the act defines "marriage" as a union between a man and a woman. The Iowa Supreme Court may uphold the lower court's ruling declaring the act unconstitutional under Iowa's equal protection and due process laws. If so, Iowa will become the fourth state to legalize gay marriage (though California voters recently superseded California courts by passing a statewide ballot initiative banning same-sex marriage).

In 2005, Lambda Legal filed a lawsuit on behalf of six same-sex couples against the Polk County Recorder after they were refused marriage licenses. County Judge Robert Hanson struck down the 1998 Defense of Marriage Act as unconstitutional and ordered Polk County to issue marriage licenses to same-sex couples. Though he stayed the ruling several hours later, one same-sex couple was able to navigate throughout the system and become legally married.

I listened to audio of the arguments. However, because I was working at the time, any quotes I use below are culled from my memory and will not be exact. A basic summary of the arguments follows:

Robert Kuhle (Polk County Attorney): Gay marriage will undermine the very fabric of our society. If we allow gays to marry, it won't be long before kids grow up in pods and mind-control machines walk the earth. Have you seen The Matrix?

Dennis Johnson (Plaintiffs' Attorney): Dude, shut your cake hole. You all sure think about gay sex a lot. Perhaps you should reconsider why you actually believe allowing two gay people in love to partake in the societal, legal, and financial benefits of a state-sanctioned union undermines your own loving relationship.

Here are some other thoughts regarding the oral arguments.

  • It was amusing to hear the Polk County attorney say "copulation".
  • The justices were prepared for both sides. Both attorneys got a little bit of legal ass whuppin'.
  • I know they filed thousands of pages of briefs, but an hour and a half seems kind of short to debate the finer points of the issue.
  • There were a few times that Kuhle seemed to not even believe what was coming out of his mouth.
  • It is really cool that the court allowed simulcasting of the proceedings.

Here are some of Kuhle's ridiculous arguments against same-sex marriage, along with my responses.

Gay marriage will destroy marriage

One of Kuhle's remarks was something about "destroying marriage to obtain equality". This is a grand bit of hyperbole! If "marriage" as defined by the Defense of Marriage Act is unconstitutional then I suppose a court finding it so and striking down the provision would be destroying it. In the same way that the Thirteenth Amendment to the US Constitution "destroyed" slavery...

On a side note under the equality headline, it is not all right to have "civil unions" for homosexual couples and "marriage" for heterosexual couples. See the last paragraph for what I think should happen.

"The fundamental reason for marriage is procreation"

Yes, Kuhle (Polk County) thinks that all you heterosexual couples without kids better get to business. I've done my part (whew). He's coming for you next!

This argument against same-sex marriage is bunk because:

  • Assuming that gay and lesbian couples will rarely produce children in the traditional manner regardless of marital status, how could denying them the benefits of marriage possibly impact the number of children born? Well, it can't. Perhaps heterosexual married couples will get into bed to celebrate if this court case is defeated.
  • Heterosexual married couples aren't required to produce children by any statute. If procreation is the fundamental reason for state-sanctioned marriage, the Iowa Legislature has done a piss-poor job of writing it into the law. I couldn't find this requirement in the Iowa Code anywhere.
  • I'd bet that even back before marriage was invented, there was a lot of procreation (or was it "begatting").

Even Kuhle admitted under questioning that heterosexual people won't stop "copulating" if gays are allowed to marry. Which leads him to his next argument.

"The optimum setting for raising kids is a heterosexual nuclear family"

Kuhle went through some shenanigans to try to prove this one. Among his specific arguments in support of this were:

  • A woman can't raise a boy to be a man.
  • By allowing same-sex marriage, the State is saying that kids don't need to be raised by parents.

Let's assume for a minute the ridiculous assertion that there is some sort of "optimum" setting to raise a child that can be defined and enforced by the State. Let's also assume that this optimum setting is primarily defined by the sex and sexual orientation of the parents. If so, then they are barking up the wrong tree: many many more children are living in single parent homes with one heterosexual parent than in homes with one or more gay parents. If they are truly concerned about keeping children in two parent heterosexual homes, perhaps the DOMA crowd would be better served to work against no-fault divorce and out-of-wedlock births than against same-sex marriage.

As a parent myself, I believe the key pieces to a healthy home for raising children are:

  • Stability - Children need to be able to count on the people they love to be there for them. Allowing same-sex marriage promotes stability.
  • Love - Children need to be loved. I'm not sure how restricting same-sex marriage furthers this goal.
  • Positive Role Models - In two-parent households, there are two people to serve as role models every day, and it's still difficult. Single-parent households must make a greater effort to maintain multiple positive role models. This is often done through shared custody. My sense is that the DOMA crowd believes that homosexuals cannot serve as positive role models because they are gay.

State law allows convicted sex offenders to get married. Let's recap: Kuhle's first argument that the primary reason for marriage is procreation, and his second that the parents' sexual orientation is the primary determining factor of the optimal setting for raising children. Does it then follow that he believes it is better for a child to be raised by heterosexual parents, one of whom is a convicted sex offender, than it is for that child to be raised by a same-sex couple?

Which brings me to the last of Kuhle's arguments against same-sex marriage.

It's a slippery slope

Ah, yes, the slippery slope, one of the classic logical fallacies. Where would we be without this one: If we allow gays to marry, it won't be long before we allow polygamy (which Kuhle actually brought up in his arguments) and bestiality (which others have brought up in similar arguments).

And yet, without the "slippery slope" we would also still punish adultery with death, keep slaves, and deny women the vote. There are very few, if any "fundamental moral truths" that have stood the test of time, or even recent history. For example, there is no conceivable circumstance under which Barack Obama could have won the presidency just 50 years ago. We stand today on the brink of the historic moment when a person who identifies as a Black man will assume leadership of this country where a mere 150 years ago he could have been owned by another person!

Kuhle's remarks included the following gem: If the court upholds the ruling and allows gay marriage, the State is saying that within a generation or two, we won't need families to raise children. This is patently ridiculous, and one of the justices called him on it. Allowing gay marriage would actually create more stable families to raise children.

Here is my recollection of Kuhle's slippery slope progression. First we legalize gay marriage. By doing so, we teach that marriage is not about procreation. this will deprive children of the right to know who their parents are. Next we could be redefining the rights of polygamists.

The sticking point is that some people believe homosexuality is morally wrong, based on the teachings of their religion. There, I said it. This isn't about children at all, it's about religion.

Hear this, and listen well: simply because something has been done one way for "four thousand years" doesn't make it inherently right, and it doesn't mean that we should keep doing it that way! There are a lot of things in the Bible that we don't do any more because we recognize that they are immoral and/or unnecessary under today's standards. This great country has a general history of oppressing minority groups, followed by difficult civil rights struggles and conservative backlash, followed by general public acceptance. Because legislative bodies are controlled by the majority resistant to change, the courts (including Iowa's courts) have often been out front in recognizing society's evolving civil rights needs.

My Recommendation

I'm in favor of civil unions. For everyone. I think we should separate the ideas of marriage and civil union. The State should be involved in the creation of civil unions and management of the contractual benefits accrued to families by a civil union. Leave "marriage" to the churches as a statement of faith. Churches would control their own definitions of marriage and would be free to withhold it from any person or group they see fit to exclude.

Grant every currently married couple a "civil union" automatically, of course. Going forward, both same-sex and opposite sex couples would apply for and receive a civil union that is separate from their religious marriage ceremony (if they choose to have one).

It is simply incorrect that as society grows and changes, that there are certain core understandings are immutable. Everything changes over time. Mountains are worn down to plains.