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WATCH: Same-Sex Marriage Arguments at Iowa Supreme Court

Arguments have concluded in Varnum vs. Brien, the case involving "six same-sex Iowa couples who sued Polk County Recorder and Registrar Timothy Brien in 2005, after his office denied them marriage licenses."

Watch the hour and forty minute proceedings, AFTER THE JUMP...

The Des Moines Register reports:

Johnson"Dennis Johnson, a Des Moines lawyer, said marriage would remain an institution of two people even if the high court allowed gay couples to wed. The assertion came in response to questions from several justices that gay marriage would open the door to other types of marriage. 'How do you stop?' asked Justice Mark Cady. 'How do you stop more than two people from getting married?' Johnson said a marriage 'has always been well defined within the concept of two people,' and that polygamy would change its historic meaning. Same-sex couples, by contrast, should have the right to marry because they meet all other requirements to wed, he said. 'This right is a time-honored right and tradition in this society,' Johnson said. 'What you see is that people have always had a fundamental right to marry. The court has made it clear. With more than two people, you would change the meaning of marriage.' Justice Michael Streit asked Johnson whether the state has 'an interest in making a last stand, so to speak? Can’t the government take a big picture approach to this?' Johnson criticized Polk County’s arguments about possible long-term damage to marriage as 'highly speculative,' and cast the law as an intrusion on equal rights. 'The question is: Why are same sex couples kept out?' Johnson asked. 'They have families, they would benefit from the stability, the financial stability. Their children would benefit.'"

Earlier, Polk County argued its case:

Kuhle"Assistant Polk County Attorney Roger Kuhle in his arguments said a ruling that allows same-sex marriage could harm children in future generations by eventually leading to belief that marriage is unneeded. 'We’re saying that, after a generation, maybe two, people will see or could come to believe that if it’s not necessary to have its biological father, or its biological mother, then what’s the need for getting married?' Kuhle said. The statement came in response to a question by Justice Brent Appel, who quizzed Kuhl about their arguments that same-sex marriage could harm children. Kuhle said Hanson had erred in his ruling, which declared the Iowa Defense of Marriage Act unconstitutional and threw out several expert witnesses that gay marriage opponents had hoped to use in a trial. 'The recorder has no say in this law,' Kuhle said. 'He can no more give these plaintiffs a license than he could give a license to a man and three women, or a woman and three men.'... Kuhle said that state support of same-sex marriage would teach future generations that marriage is no longer about procreation, one of its historic tenets."

A ruling is not expected for months.

Watch the arguments, AFTER THE JUMP....

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  1. Did Polk County hire the Alliance Defense Fund or something? He was pure evil, and drawing on some of the most homophobic arguments I've seen in a Supreme Court case in a while.

    Who knows how it will end up. After all, there are a ton of documents to go over, and some "liberal" state courts have felt perfectly comfortable screwing us over (I'm looking at Oregon and NY....). But, I can't help but think that oral arguments went about as well as could be asked for.

    Posted by: MAJeff | Dec 9, 2008 1:40:28 PM

  2. "We’re saying that, after a generation, maybe two, people will see or could come to believe that if it’s not necessary to have its biological father, or its biological mother, then what’s the need for getting married?"

    Like it or not, this scenario is not one or two generations away: it's happening today. And two causes are divorce, which nullifies a marriage, and lack of proper sexual education which can certainly occur outside of marriage. Neither of which, so far, have anything to do with gay people getting married.

    Although I have to say, I don't know how to get around the polygamy problem without it sounding arbitrary ("marriage is defined as uniting two consenting adults and no more") or relying on tradition ("because it's always been two people!"), stances gay marriage advocates often rail against.

    Posted by: latebrosus | Dec 9, 2008 2:17:43 PM

  3. "Kuhle said that state support of same-sex marriage would teach future generations that marriage is no longer about procreation, one of its historic tenets. "

    Dear lord, that is concerning. I hope his next move is mandatory fertility tests that straight couples are able to conceive before allowing them to marry. And these poor children, getting the idea that marriage isn't needed for reproduction, lets get all those unwed parents out of Iowa right now, kids might start asking questions and then before you know it science classes in school will have to start explaining how reproduction works and that marriage isn't one of the requirements to conceive.

    Posted by: John M | Dec 9, 2008 2:20:14 PM

  4. I don't feel confident about this case either. Gays have been gaining visibility and making inroads to equal rights so fast that the backlash has come from religious voters and courts worried about their credibility.

    Posted by: LaffyDaffy | Dec 9, 2008 2:22:33 PM

  5. If their fear is that soon there will be no reason to get married, then they should take a gander at the article below. It lists some of the 1,049 benefits that are afforded to a married couple. DUH.

    Posted by: Michael | Dec 9, 2008 2:32:34 PM

  6. Here's the thing on polygamy: you could not have a polygamous marriage that was legally identical to existing monogamous marriage.

    The legal structure for -- just as one example -- division of property could not be the same for three or more people as for two. If Albert is married to Beth and Beth is married to Calvin, what is Calvin's legal relationship to Albert? Must they get married too? What if they don't want to?

    A whole legal tangle would come up, and many, many aspects of marriage benefits and restrictions would have to be changed to fit the new situation. They'd basically have to rewrite it from the ground up.

    That's not the case with gay marriage. In gay marriage, all you have are legal benefits which are arbitrarily denied to certain types of people.

    It's true that in terms of personal liberty, polyamory and homosexuality are very similar issues. But in terms of equality of citizens under the law, not recognizing polygamous marriage and not recognizing gay marriage are NOT equivalent discriminations.

    Posted by: Distingué Traces | Dec 9, 2008 2:42:04 PM

  7. Marriage is about procreation? I thought it was about gifts, tax breaks and infidelity. Oh, and divorce. I guess I missed that memo.

    Posted by: David D. | Dec 9, 2008 3:08:08 PM

  8. I was in the court room, second row... This, in my opinion, could not have gone any better. The is still a lot of work to be done, but I am fairly optimistic about how the ruling in Iowa will turn out. The Iowa supreme court has a history of being far ahead of the U.S. Supreme Court in civil rights cases, including, desegregating Iowa schools 80 years before Brown v. The Board of Education.

    Posted by: bdouglas | Dec 9, 2008 3:13:43 PM

  9. I think Distingué has it right--as we know, for most of European history, marriage was more or less a business agreement between two families who arranged the marriages of their children to merge the families' assets. While some cultures practice polygamy, and even for similar reasons (accruing dowries and property, it is not part of the European tradition. (Homosexual unions, though, are part of that tradition--as we now know that same-sex unions were accepted and sanctified in Catholic and Eastern Orthodox churches in the Medieval era.)

    Posted by: David D. | Dec 9, 2008 3:21:31 PM

  10. "Same Sex Marriage" is a Special right and I oppose Special Rights for any group. However "Civil Marriage" is not a special Right and I'm an activist for equal rights. The Harm done, the damage done, the twisted meaning of "Same Sex Marriage" can not be understated. The push is NOT for "Same Sex Marriage" a special right ONLY for Same sex couples, the push is for Civil Marriage Equality. When the Plaintiffs' lawyer used that term I saw a glaring weakness.

    Posted by: Sargon Bighorn | Dec 9, 2008 3:35:55 PM

  11. The most interesting point for me was when the judge asked Roger Kuhle if registered sex offenders should be denied the right to marry - just following Kuhle's argument that marriage needs to be restricted to male/female unions to create an environment suitable for children.

    Kuhle's response was that they should be allowed to marry and that it would be denying them their rights to take that away.

    I was blown away by this for two reasons:

    1. The judge raising this seemed to be supporting 'our' case, or at least questioning the logic
    2. That Kuhle could really have the balls to argue that two registered sex offenders should have the right to marry, while two law abiding men/women should not - as the male/female union would still create a better environment for children

    Posted by: Gregus | Dec 9, 2008 4:06:40 PM

  12. This Dennis Johnson is a bit of a hero, no? Very Milky.

    Posted by: sparticus | Dec 9, 2008 5:06:23 PM

  13. These sound like exactly the same arguments that have persuaded courts in VT, MA, CT, and CA to extend rights to same sex couples.

    The procreation and polygamy arguments can't win if the justices are at all honest.

    Sargon, I agree up to a point, but the horse is out of the barn and English is not as precise as one would like. I do use that argument in favor of marriages over CUs though -- they keep talking about "redefining marriage" and then they turn around and redefine it and give it a new special category and name? Ridiculous.

    Posted by: Kevinvt | Dec 9, 2008 5:08:20 PM

  14. I agree BDouglas. Watching the webcast, i felt like Kuhle was sort of Mr Magoo. The justices kept asking him if he had a point to make and he really couldn't make one beyond tradition -- which he admitted had no weight according to the US Supreme Court -- and procreation. The specious idea that generations hence people might -- and he conceded might -- be discouraged from marrying seemed ridulous on the face of it.

    He did say there is right to "momosexual sex" found in Lawrence v Texas but not right to being "homosexual" in the US Constitution. My retort would have been "There is no right to be black in US constitution either. People are what they are."

    Posted by: Chris | Dec 10, 2008 3:19:10 AM

  15. I have a "gut" feeling the Courts decision will be 5-2 in favour of full equal rights for same-sex couples. But, they will remand it to the Legislature to come up with the statutory scheme, which will probably be Civil Unions.

    Posted by: Guy in SF | Dec 10, 2008 3:20:17 AM

  16. ..that should read...He did say there a right to Homosexual sex found......."

    (it's late)

    Posted by: Chris | Dec 10, 2008 3:21:18 AM

  17. Latebrosus: Polygamy can be addressed in part at least by argueing that it would affect every existing marriage as it poentially changes EXISTING marriages, i.e., a couple that is already married could bring in a third/fourth/fifth, what if one partner wanted it and another didn't chaos. Two gay people being able to form form a new discrete marriage doesn't affect the "form" or "function" of any other existing marriage. Johnson didn't argue this and I surprised he didn't. It was a question on the fly though.

    Posted by: Chris | Dec 10, 2008 3:35:14 AM

  18. Guy in SF, the IA SC has never "remanded" a case to the legislature and it would be highly unusual for them to do so here. Also, in the closing a justice asked if civil unions would be a reasonable recourse and Dennis Johnson shot it down fairly eloquently using Brown vs. the Board.

    I don't see why they would "remand" it to the legislature. The Iowa SC has a proud history of standing on the side of fairness and equality. Further, our constitution is a bit stricter than others when it comes to the equality guarantee, so I doubt they will find civil unions acceptable.

    Posted by: Sean McQuillan | Dec 10, 2008 6:27:26 AM

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