Thursday, March 19, 2009

Constitutional marriage amendment introduced in Iowa General Assembly

03/19/09 Australian Gay and Lesbian Blog:

Brisbane solicitor Stephen Page references a 3/17/08 Iowa Independent article about a proposed constitutional amendment that would not only limit state recognition of marriage to opposite-sex couples, but would preclude state recognition of same-sex civil unions or domestic partnerships. In scope, it is as sweeping as proposed amendments in West Virginia, Delaware, and North Carolina. (Legislative obstacles have emerged to North Carolina's contemplated constitutional ban on same-sex marriage and civil unions.)

The proposed amendment appears to represent an effort to reverse an impending Iowa Supreme Court ruling in Varnum v. Brien, if the Court upholds the state constitutionality of same-sex marriages.

"All this takes place in the shadow of Varnum v. Brien, a lawsuit brought on behalf of six same-sex couples who are seeking the right to marry in Iowa. It is currently under consideration by the Iowa Supreme Court after oral arguments Dec. 9. The outcome will ultimately decide the constitutionality of Iowa’s Defense of Marriage Act."

The Iowa Constitution, under Art. 1, Sec. 10, identifies the procedure for placing a constitutional amendment on the ballot. Iowa voters can not place an initiative directly on their state ballot, as California voters can on theirs. A proposed constitutional amendment must first be passed by a majority of each house of the state legislature, and then passed again by a majority of each house of the legislature elected in the next election. Finally, a majority of Iowas voters must approve the proposed amendment. So if the Iowa Supreme Court rules that Iowa same-sex marriages do not violate the state constitution, it would take several years before voters would have opportunity to adopt or reject the proposed constitutional amendment on marriage.

According to this proposed amendment, an opposite-sex marriage "shall be" the only recognized or valid legal union in Iowa. The amendment could have (more clearly) addressed its retroactive scope. So the amendment appears to have just prospective application. In other words, if, as a result of the impending ruling in Varnum v. Brien, same-sex couples can marry in Iowa, they would have at least several years in which to do so before the voters could decide the outcome of constitutional amendment. And even if the voters ultimately approved the amendment, their marriages would probably remain valid or recognized in Iowa, and in other states that recognize out-of-state, same-sex marriages.

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