Andrea L. Clausen, J.D. candidate, University of Iowa College of Law, May 2003. This note is lovingly dedicated to Alissa D. and Melanie R. Klein (a.k.a. Pat and Mel). I also want to thank all of the people who gave me love, support, and encouragement throughout the writing process. Society will improve and change, one person at a time.
Mel and Pat, native Iowans, met through a mutual friend their junior year of college and began dating. They moved in together senior year and, like many young couples, began to plan for the future. Each was interested in pursuing graduate school-Pat in law and Mel in women's studies. They talked about marriage, kids, and where they wanted to live. They wanted to stay in the state, as both had been accepted to graduate programs, and had family in Iowa. However, instead of booking a reception hall and church, ordering invitations, and finding bridesmaid dresses, Mel and Pat went to Burlington, Vermont, to obtain a civil union.1
Because Mel and Pat are both women, Iowa does not recognize a marriage contracted between them in Iowa,2 or a marriage validly contracted in another state.3 Although civil unions are not marriage,4 they may or may not be Page 452 recognized in Iowa; the Iowa Supreme Court has not had the opportunity to decide this issue. Under the Iowa Constitution, Iowa Code Section 595.2(1), prohibiting same-sex marriage, is unconstitutional because it violates substantive due process and equal protection by infringing on fundamental rights of Iowans and treating similarly situated couples differently without fulfilling a state interest. Part II of my note will discuss the legal context in which Iowa Code Section 595.2(1) was amended to prohibit same-sex marriage as well as the current state of same-sex unions. Part III will discuss how marriage is defined and regulated in Iowa and why it is unconstitutional under the Iowa Constitution. Part IV will conclude with some alternatives to marriage that are available in other states and will explain why marital status, and not a marital alternative, should be recognized in Iowa.
In 1993, the Hawaii Supreme Court held that regulating access to marriage based on sex constituted sex discrimination.5 Under Hawaii Constitution art. I, Section 5,6 same-sex couples denied marriage licenses based on their sex had a valid equal protection claim.7 The court recognized that the state can control marriage, but must do so within constitutional limits and can only deny marriage for compelling reasons.8 Because access to marital status and benefits9 is Page 453 regulated by the sex of the individuals within the couple,10 the denial of marital licenses to same-sex couples is sex-based.11 Under Hawaii Constitution art. I, Section 5, sex is a suspect category and subject to strict scrutiny.12 Under strict scrutiny the state must have a compelling state interest to deny benefits to same sex couples and the statute must be narrowly tailored to avoid infringing on other constitutional rights.13
On remand, the State was unable to provide a compelling state interest to support restriction of marriage based on sex.14 Hawaii was enjoined from denying marriage licenses to same-sex couples.15 The Hawaii Court approved the right to a marriage license despite the sex of a couple;16 however, this right was short-lived. Hawaii amended its constitution in 1997 to state: "The legislature shall have the power to reserve marriage to opposite-sex couples."17Although same-sex couples were ultimately denied access to marital status and benefits, the Hawaii Supreme Court's approval of extending marital status to same-sex couples seemed to signal a change in judicial attitudes on the subject of civil rights and same-sex unions.
The movement to extend basic civil rights and protections to homosexuals through the judiciary system continued in Romer v. Evans.18 In 1996, the United States Supreme Court held that Amendment 2 to the Colorado Constitution, which prohibited anti-discrimination laws that protected homosexuals from discrimination, violated the Federal Equal Protection Clause because it did not further a legitimate state interest.19 The Court recognized that laws often classify people and may disadvantage one group and not another.20 This is acceptable if the disadvantage does not infringe on a fundamental right, or target a suspect class, and the "legislative classification bears a rational relation to Page 454 some legitimate end."21
If passed, Amendment 2 would have destroyed laws protecting homosexuals from many kinds of discrimination.22 The Court found that these laws did not constitute "special protections" but rather protected homosexuals "against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary life in a free society . . . [protections that are] taken for granted by most people either because they already have them or do not need them."23 The Court found that the amendment's purpose was to make homosexuals unequal to other Coloradoans and this did not constitute a legitimate state purpose: "A state cannot so deem a class of persons a stranger to its laws."24 The Supreme Court's recognition that a majority may not enjoy everyday benefits denied to a minority, without a legitimate state purpose, was a victory for the sexual minority trying to gain majority marital benefits.
The Hawaii Supreme Court's recognition of the right for same-sex couples to marry,25 and the United States Supreme Court's acceptance of anti- discrimination laws to protect homosexuals' everyday transactions,26 were positive steps toward establishing marital benefits for same-sex couples. Unfortunately, the path toward recognition of same-sex marriage was abruptly cut short in 1996 with the passage of the Defense of Marriage Act (DOMA).27DOMA allows states to decide if they want to extend full faith and credit to a marriage, or a ceremony "treated as a marriage," between persons of the same sex.28 This means that if Hawaii had not amended its constitution and had chosen to grant marriage licenses to same-sex couples, Iowa could choose not to recognize those marriages.29 Additionally, DOMA states the federal government's position on same-sex marriage: marriage refers only to one man Page 455 and one woman, and spouse refers only to the opposite sex.30
In this politically changing environment, H.F. 2183 was introduced into the Iowa Legislature in 1996.31 The bill was passed by the House, but stalled in a judiciary subcommittee after entering the Senate.32 H.F. 2183(1) would have amended Iowa Code Section 595.2(1) to read, "only a marriage between a male and a female is valid" from "a marriage between a male and a female each eighteen years of age or older is valid."33 The language of H.F. 2183(1) was reintroduced into the 7734 General Assembly as H.F. 382(1).35 H.F. 382 also had a provision requesting the establishment of a Domestic Partners Task Force to study issues related to and faced by domestic partners.36 This seems to suggest that the Iowa Legislature recognized that denial of marital status to domestic partners was also a denial of rights and benefits.37 Despite recognition of the effects H.F. 382(1) would have on same-sex couples, the amendment was successfully passed by the legislature and signed by the governor April 15, 1998.38 The restrictive language became effective July 1, 1998.39
In 1999, one year after Iowa chose not to recognize same-sex marriages, the Vermont Supreme Court held that Vermont, under the Vermont Constitution, must extend the same benefits and protections to same-sex couples as married couples.40 Under V.T. Const. ch.I, art.7, same-sex couples denied marriage licenses had a valid equal protection claim.41 The court analyzed the equal protection claim using a three prong test: (1) what part of the community is disadvantaged by the law, (2) what is the government's purpose in excluding members of the community, and (3) does the omission bear "a reasonable and just relation to the governmental purpose."42 The court identified same-sex couples as the statutory category of people disadvantaged by the law.43 Samesex couples were disadvantaged by the marriage statutes through their exclusion from marital protections and benefits.44 The governmental purpose for excluding same-sex couples from marriage was to foster and strengthen the relationship between procreation, child-rearing, and familial responsibilities through the marital status.45 The court found...