At the end of its historic decision in the Varnum case, the Iowa Supreme Court indicated that the decision would become effective, as per court rules, in 21 days. But it seems that somebody forgot about the recession-induced court furloughs, under which Iowa courts are now closed the last Friday of each month in order to save operating expense money. By coincidence, the last Friday of April is the 21st day after the Varnum opinion was issued. Luckily, the court decided not to delay things any longer than necessary, and indicated that on the next day courts are open, April 27, the appropriate actions will be taken to put the decision into effect.
Thus, the last weekend in April is lost to those planning same-sex marriages in Iowa - for this year.
Other subsequent developments of note in Iowa: legislative leaders have rejected the call, mainly by Republicans, to rush onto the ballot a constitutional amendment to reverse the court's decision. Governor Chet Culver, not a supporter of same-sex marriage, nonetheless concluded after reviewing the court's opinion with legal counsel, that the state should comply and so he did not join in on calls for a constitutional amendment. The legislature is due to adjourn its session shortly, so the possibility of an amendment through the legislature-to-ballot route is put off for now.
The alternative, in Iowa, is for the people to call for a constitutional convention. Every ten years, according to news reports, a question is on the ballot asking whether the people want to call a constitutional convention. At such a convention, the entire state constitution is up for grabs - although the result of what the convention recommends is then put to the people for a vote. The next time the question is scheduled to appear on the ballot is November 2010. If the measure passes, then a procedure would be activated for electing delegates, there would be a convention, and what it recommended would be on a subsequent ballot.
So - the bottom line is that there will not be a vote in Iowa relevant to any sort of challenge to the Varnum decision for more than a year, and possibly much longer. All to the good for same-sex marriage advocates, since it seems unlikely that after a few years of same-sex couples routinely marrying in Iowa with no untoward results the public would get steamed up to overrule Varnum.
We dodged this bullet in Connecticut, where by coincidence the convention question was on the ballot just weeks after the Kerrigan decision. But the question drew a resounding "no" from the voters, so there is no constitutional convention scheduled in Connecticut. Instead, the legislature is working on revisions to the marriage law in order to effectuate the Kerrigan decision - although it actually went into effect in November by court order. (Among others, my partner and I married in Connecticut as non-residents, on March 30.) The never-say-die opponents of same-sex marriage are now mounting the barricades to oppose the legislation - a rather stupid position, since the court decision is in effect and people are marrying, regardless of what the legislature does.
Elsewhere in New England, the question of same-sex marriage is pending before the state Senate in New Hampshire, where the marriage bill narrowly passed the House and the question whether the governor would veto a bill that had narrowly passed both chambers is an open question. Reportedly, Gov. Lynch, a Democrat, feels that the civil union law that he signed into effect is sufficient to satisfy the equality requirements of the constitution towards same-sex couples. This position seems to be based on a combination of wilful ignorance (inasmuch as a comprehensive study in N.J. has shown the inadequacy of civil unions to provide equality) and political opportunism. Indeed, how anyone could read the Kerrigan decision and maintain this position honestly is a puzzlement, since Justice Palmer explained quite plainly why Connecticut's civil union law was inadequate...
Inadequacies aside, however, activists for LGBT rights are pursuing marriage alternatives in two jurisdictions where the passage of a marriage bill is unlikely at present. The Illinois legislature is contemplating civil unions, and the Nevada legislature now has domestic partnerships on the table, after approval of such a bill earlier this week in a Senate committee. There seems to be an emerging trend of calling these statuses "civil unions" in the east and "domestic partnerships" in the west, probably taking the lead from Vermont (civil unions - 2000) and California (domestic partnerships - what remains after Prop 8 "repealed" the marriage ruling).
Still to come on this front: marriage bills pending in NJ and NY and Maine and RI, and a decision from the California Supreme Court on the fate of Proposition 8 by the first week in June. It is getting quite difficult to keep up with all these developments. Have we reached a tipping point on legal status for same-sex partners that will provide the momentum to spread the movement to more states?
A syndicated column by Cal Thomas, a conservative, generally anti-gay, commentator, published in newspapers this week, suggests that the fight against "gay marriage" is lost, and that at this point conservative "family values" types should probably be focusing their attention on preventing easy divorce if they want to bolster traditional families. I think the Iowa decision is causing the more thoughtful conservatives to think anew about the marriage issue. After all, it was a unanimous, bipartisan ruling from the heartland of America, written in plain English, making cogent arguments, exploding popular right-wing myths, and ultimately leading to the most important question in this entire debate: "Why not?" That is, the issue, whether before a court or a legislature, is "why not take a stand for human happiness and grant the desires of same-sex couples to enter into the conservative family structure of marriage, instead of languishing in the twilight of being legal strangers and the insecurity of raising their kids without a state-recognized family structure"? And, of course, an understanding that in a country where the 1st Amendment of the federal constitution takes supremacy, NO religious institution can be required by any state to perform weddings for any couples whose nuptials would violate the religious tenets of that institution, and so the question before legislatures is NOT about what G-d may or may not have ordained in the way of a sanctified religious marriage, but rather what the state provides in the way of civil status for relationships.
Perhaps the strongest sign that a tipping point has been reached is the lawsuit filed by Gay and Lesbian Advocates and Defenders in federal court in Boston, challenging the federal Defense of Marriage Act. The LGBT public interest law groups studiously avoided any head-on challenges to DOMA until there was some momentum towards same-sex marriages - until a tipping point seemed to be reached - so clearly filing the lawsuit was a sign that the point has arrived to seek FULL marriage rights, which requires federal recognition of the marriage status created under state law.
The more desirable route would be for Congress to repeal DOMA, but that would require the Obama Administration and Democratic leaders in Congress to show political courage and to be willing to expend political capital in an all-out struggle, and nobody is holding their breath for that to happen, given the timidity and cowardice of the political branches of our federal government on any issue involving gay rights. Consider - The Don't Ask Don't Tell military policy makes us a laughing-stock before our strongest military allies, since it is founded on the peculiar notion that American service members are such emotionally insecure creatures that they will collectively flip out if the numerous gay servicemembers among them were open about their sexual orientation, and yet the Obama Administration, elected on a pledge to end the farce, has now put this issue off "indefinitely" - because, of course, the administration is unwilling to expend political capital on anything involving gay rights.... And when did you last read that the Obama Administration was going to secure passage of an inclusive Employment Non-Discrimination Act this year???? They keep saying that they don't want to be distractted now from the twin issues of the economy and the wars in Iraq and Afghanistan... but then they insist that this year will also see action on education and climate change and this and that.... in other words, this is an Administration that is devoted to multitasking - but just not for the LGBT community, who they can continue to take for granted politically because of the continued knee-jerk anti-gay rhetoric of the Republicans.
Let's see if they can walk the walk, having talked the talk so well during the election campaign (with the notable exception, of course, of Obama's failure to prevent -- as he could have done -- the passage of Prop 8 in California).
