More on the Iowa Supreme Court’s Same Sex Marriage Argument Today


Posted on December 9th, 2008 by Katherine Franke

The Des Moines Register has the video here.

Nan Hunter, on her blog Hunter for Justice, has a nice commentary on the argument.

Two things I would add to Hunter’s commentary: The first groan moment, from my perspective, was when the plaintiffs’ attorney (who otherwise did a good job at the argument) referred to a little girl in the courtroom who had gay parents and who had been told by a day care center that she couldn’t talk about her family on “family day” because they weren’t married. He felt this anecdote illustrated how important it was for her parents to be able to marry. But of course, what the anecdote reveals is the stupidity of the narrow conception of family at work at the day care center – the kids should be able to talk about their families, whatever form they take – marital, non-marital, or whatever (Grandma is in my family, Aunt Iphigenia is in my family …). It reminded me of the outrage a single-mom friend of mine feels every fall when her kid comes home from the first day of school after having to do the first-day-ice-breaker family tree exercise – the tree and all its branches are already provided for the kids, all they have to do is fill in the names of Mom, Dad, Grandma, Grandpa etc. “Why not let them draw their own family trees with whatever branches they need, rather than have to fill one in that requires the kids to explain why some of the branches are irrelevant?” – she’d ask.

To rest the rightness of the plaintiffs’ claim on a demand that they be admitted to the club whose members are allowed to talk about their families is to reaffirm an out-dated idea of legitimacy that we ought stay way clear of in arguing these cases. Sure, the day care center is wrong, but the solution isn’t to let same sex couples marry. Get another anecdote – please.

The plaintiffs’ attorney made one further argument that got a groan out of me – I wish it didn’t make its way into these cases. It’s an argument that the Connecticut Supreme Court credited to Lambda Legal in the Kerrigan case. The argument goes like this, quoting from the Connecticut Supreme Court:

We agree with the following point made by the Lambda Legal Defense and Education Fund, Inc., in its amicus brief: ‘‘Any married couple [reasonably] would feel that they had lost something precious and irreplaceable if the government were to tell them that they no longer were ‘married’ and instead were in a ‘civil union.’ The sense of being ‘married’—what this conveys to a couple and their community, and the security of having others clearly understand the fact of their marriage and all it signifies—would be taken from them. These losses are part of what same sex couples are denied when government assigns them a ‘civil union’ status. If the tables were turned, very few heterosexuals would countenance being told that they could enter only civil unions and that marriage is reserved for lesbian and gay couples. Surely there is [a] constitutional injury when the majority imposes on the minority that which it would not accept for itself.’’

The lawyer in the Iowa Supreme Court today, with his wedding band prominently visible on his left hand as he gripped the podium during the argument, told the Court that he and his wife would feel that they had lost something if they were told that they could no longer be married, but instead could only be civil union-ed. See my post below on why this argument is problematic: Disestablishmentarianism

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