Saturday, April 4, 2009

Congratulations, Iowa Same-Sex Couples! Regarding Wisconsin..?

Will you look at that..! Iowa has become the third state in the union to legalize same-sex marriage. It is awesome to see a state away from the coasts take this bold, forward, progressive step.

From the unanimous Iowa Supreme Court decision:

"We are firmly convinced the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective. The legislature has excluded a historically disfavored class of persons from a supremely important civil institution without a constitutionally sufficient justification. There is no material fact, genuinely in dispute, that can affect this determination."

"We have a constitutional duty to ensure equal protection of the law. Faithfulness to that duty requires us to hold Iowa’s marriage statute, Iowa Code section 595.2, violates the Iowa Constitution. To decide otherwise would be an abdication of our constitutional duty. If gay and lesbian people must submit to different treatment without an exceedingly persuasive justification, they are deprived of the benefits of the principle of equal protection upon which the rule of law is founded. Iowa Code section 595.2 denies gay and lesbian people the equal protection of the law promised by the Iowa Constitution."

I've already been asked. What does the Iowa ruling mean? Doesn't civil marriage only grant a handful of protections anyway? Can a same-sex couple from Wisconsin go to Iowa, get married, and be recognized as married in Wisconsin?

Having been involved in the community for some time now, the second question is easy for me to answer even though I don't know all the fine details. Each state grants different sets of protections when a couple obtains their marriage license or enters a civil marriage. A religious ceremony is not required to obtain a marriage license. I have no idea what Iowa grants to its married couples. Wisconsin grants 200+ protections with its license. On top of that, the federal government grants many protections and privileges, the most commonly known being the ability to file a joint tax return. No matter how you look at it, a marriage license grants basic legal protection to a couple and their family.

Regarding the first question, the way I see it is this. I am definitely not an expert. Iowa had legislation which defined civil marriage. That state's Supreme Court determined that the civil marriage definition did not comply with their equal protection clause. So, the court reasoned logically that civil marriage must be changed to include same-sex couples in order to comply.

Then there's that third question. If only it were that easy. Wisconsin has an obscure law which states that Wisconsin residents are prohibited from marrying in another state if that marriage is prohibited here. Apparently we have the stiffest law of that kind, according to JSOnline.

In any case, civil marriage is quite the big deal. No offense to anyone, but I find it fascinating, intriguing and not surprising how some straight couples don't realize just how "big a deal" civil marriage really is. Some don't realize the cost of the marriage license alone compared to the rest of the ceremony if they choose to have one.

Anyway, this is what equal protection clause in Iowa's Constitution states:

All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.

Pretty clear stuff.

Now compare that to Wisconsin, where equal protection is determined by interpreting Article 1 of our state Constitution and the 14th Amendment to the U.S. Constitution, and by going through a bunch of legal tests. From a quick Google search, the tests include heightened scrutiny and rational basis. Heightened scrutiny is further broken down as strict or intermediate. Somewhere along the way I found a reference to legislative intent and compelling governmental interest. If Wisconsin's equality clause sounds familiar, it should be: I understand it was based on the Declaration of Independence.

Wisconsin Constitution Article I:
Equality; inherent rights. SECTION 1. [As amended Nov. 1982 and April 1986] All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed. [1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982; 1983 J.R. 40, 1985 J.R. 21, vote April 1986]

U.S. Constitution Amendment 14:
SECTION 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Don't even ask me to explain or figure out the legal mumbo-jumbo. Dammit, I'm a queer mexican trekkie, not a lawyer! I found the following page which seems to cover it pretty well. One thing is certain: it has suddenly become even more clear why Wisconsin is forced to go to the separate and unequal route of enacting a domestic partnership registry which grants 43 out of 200+ protections for same-sex couples.

No matter. In the grand scheme of things, its always just a matter of time. There are always possibilities..!

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