Next Stop on Gay Marriage Debate in Courts: Iowa

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Associated Press

Next Stop on Gay Marriage Debate in Courts: Iowa

by
Amy Lorentzen

Pictured in this undated handout photo released by Lamda Legal, are Dawn, left, and Jen BarbouRoske and their two daughters in Iowa City, Iowa. The lesbian couple are plaintiffs in a challenge to Iowa's ban on same-sex marriage. The state Supreme Court is scheduled to hear oral arguments in the case on Tuesday in Des Moines. (AP Photo/Lambda Legal)

DES MOINES, Iowa - The gay marriage debate moves to the Midwest
this week as the Iowa Supreme Court hears arguments in a challenge to
the state's ban on same-sex marriage.

If the high court rules in
favor of the half-dozen gay couples who sued, it would make Iowa the
fourth state after Massachusetts, California and Connecticut to uphold
the right of same-sex couples to legally marry. In California, however,
voters have negated the courts by amending the state constitution to
ban gay marriage.

The Iowa case has been moving through the legal
system for more than three years, and it could take a year or more for
the state Supreme Court to issue a ruling after hearing oral arguments
Tuesday morning.

Camilla Taylor, an attorney for Lambda Legal, a
gay rights organization representing the gay and lesbian couples behind
the lawsuit, said the state has historically been a leader in
supporting minority and women's rights.

"Iowa has an opportunity
to play the role that it often has played in the past - being at the
forefront of civil rights struggles - often long before other states
were willing to be similarly courageous," she said. "This is not an
uncomfortable role for Iowans, and we are looking at them to make a
reality out of the promise of equality in the Iowa Constitution."

Lambda
Legal filed the lawsuit in 2005 on behalf of six Iowa couples who were
denied marriage licenses, as well as three of the couples' children. It
names former Polk County recorder and registrar Timothy Brien.

The
lawsuit prompted a ruling in August 2007 by Polk County District Court
Judge Robert Hanson, who said a state law allowing marriage only
between a man and a woman violated the constitutional rights of due
process and equal protection.

After that ruling, nearly two dozen
people applied for marriage licenses, but only one couple managed to
get married before Hanson stayed his decision the next day in
anticipation of the state's appeal to the Supreme Court. The marriage
of Sean Fritz and Tim McQuillan of Ames stands, although its validity
could depend on the high court.

The Polk County attorney's office
declined to comment on the pending case. In court documents, it has
criticized the lawsuit as an attempt to shift public policy decisions
from the Legislature to the courts.

Maggie Gallagher, president
of the Manassas, Va.-based Institute for Marriage and Public Policy, a
conservative group that opposes same-sex marriage, said Americans have
repeatedly made clear that they want traditional marriage protected.

"I
think it has to be clear to judges that Americans do care about this
issue, and in 30 out of 30 cases, when they've been allowed to vote,
they say that same-sex marriage is not a civil right," she said.
"Americans don't think that two men in a union are just the same as a
husband and wife, and they don't really appreciate the idea that the
legal system is going to force them" to accept that.

However,
Aderson Francois, a law professor who heads Washington-based Howard
University's Civil Rights Clinic, said that while a majority of
Americans may oppose gay marriage, it should be left to the courts to
decide issues of constitutional equality.

"It doesn't really
matter whether a majority of people want to deny that right; the
constitution simply doesn't provide for that," he said.

Francois predicts that the Iowa Supreme Court, like other courts, will rule in favor of the gay couples.

"On
the pure legal, constitutional issue, it's close to a no-brainer that
two adults ought to have the right to marry whoever they choose - that
the state ought not to be preventing that," he said.

Iowa has a
history of favoring minority rights. In its first decision in 1839, the
state Supreme Court said a Missouri slave who traveled to Iowa to earn
money for his freedom was not a fugitive. The state was the first to
admit a woman to the bar in 1869, three years before the U.S. Supreme
Court said women didn't have the right to practice law. The court also
issued early rulings against racial segregation.

The plaintiffs
in the gay marriage lawsuit include Dawn and Jen BarbouRoske of Iowa
City, who have two daughters and said they want their relationship and
their family to be fully recognized under the law.

Jen
BarbouRoske tells of searching for a preschool for their daughter and
almost settling on a place before being told the girl wouldn't be
allowed to talk about her family during family units. In court records,
Dawn BarbouRoske expressed her worries over a medical condition her
partner suffers from that could require hospitalization and once
required an emergency room visit.

"I was terrified that the
hospital staff would refuse to recognize our relationship, and that I
would not be permitted to stay by her bedside," she said.

Dawn
BarbouRoske said in an interview that they want people to understand
they are "just everyday folks" who are seeking the same rights as other
Iowans.

"We just happen to be in love with someone of the same
sex. We are committed to our community, our neighborhood and taking
care of our kids," she said. "When it comes down to it ... whether you
agree or not about same-sex marriage, it really is a basic civil
right."

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