Michael Gartner
commentary
For shame! AG tries end
run around gay-marriage ruling
What in the world is Tom Miller
thinking? Why is his Department
of Justice undermining the Iowa
Supreme Court’s decision giving
gay persons the right to marry
one another?
The Iowa Supreme Court’s decision
allowing gay marriage could not
have been clearer. It said all
Iowans have a right to equal protection
and equal rights under the law.
“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,” the
court ruled in April in unanimously
throwing out the state’s ban on
gay marriage.
It noted there were more than
1,000 federal rights and responsibilities
derived from marriage, and it
said there were more than 200
Iowa statutes affected by marriage.
These included everything from
tax laws to the definition of
a hospice patient’s family to
wrongful-death statutes to the
Iowa law noting that “children
of married parents [are] legitimate.”
Who could not understand the court’s
ruling?
Attorney General Tom Miller, for
one. Or, at least, some lawyers
who work for him.
Miller’s department has advised
the Iowa Department of Public
Health that, despite the court’s
ruling, a child born to a married
gay woman is a bastard. The gay
woman’s female spouse cannot be
listed on the child’s birth certificate,
he said in “informal advice.”
The spouse “could proceed with
an adoption if she wanted to be
listed as the parent on the child’s
birth certificate,” the advice
advised.
How shameful.
Miller’s lawyers based their advice
on the fact that the decision
made no direct reference to the
Iowa Code section on birth certificates,
which refers to “husband.” “The
Supreme Court ruling “does not
authorize an interpretation of
chapter 144 (vital statistics,
including birth certificates)
in a manner that would allow for
a same-sex spouse to be automatically
listed as the parent on birth
certificates,” they said. And,
insultingly and gratuitously,
they added: “Using the adoption
process is the best way to protect
the interests and rights of all
parties involved.”
How shameful.
For more than 125 years, the Iowa
Supreme Court has consistently
ruled that a child born in wedlock
is presumed to be the legitimate
child of the woman and her spouse
— even if the woman was pregnant
by another man at the time of
the wedding, even if the woman
was impregnated by another man
during her marriage. “The law
presumes that a child born in
wedlock is legitimate,” the court
said in 1882. More than 100 years
later, in 1995, the court ruled
in a similar case that “the state’s
interests involve preserving the
integrity of the family [and]
the best interests of the child....”
Yes, “the best interests of the
child.”
The Iowa Code couldn’t be clearer.
Section 252 says: “A child or
children born of parents who,
at any time prior or subsequent
to the birth of such child, have
entered into a civil or religious
marriage ceremony, shall be deemed
the legitimate child or children
of both parents, regardless of
the validity of such marriage.”
And the Supreme Court says gays
can marry one another.
Yet Tom Miller’s department says
a child born to a gay woman must
be adopted by her female spouse.
How shameful.
Adoption is a costly, lengthy
and intrusive process. It can
cost more than $2,000, take a
year or more and force the adoptive
parent to bare personal, financial
and medical information that is
not the state’s business. During
the process, the adoptive parent
has no parental rights — no official
say in the medical care of the
child, for instance — and the
child has no legal relationship
to the parent. If the parent would
die, the child has no rights of
inheritance.
That is not what the court intended.
The freedom-to-marry decision
by Justice Mark Cady, as thorough
as it is eloquent, notes how “society
benefits from providing same-sex
couples a stable framework within
which to raise their children
and the power to make health care
and end-of-life decisions for
loved ones, just as it does when
that framework is provided for
opposite-sex couples.” Yes, “to
raise their children.” And it
notes how Iowa’s marriage laws
“are designed to bring a sense
of order to the legal relationships
of committed couples and their
families.” Yes, “and their families.”
Therefore, it ruled, “with respect
to the government’s purpose of
‘providing an institutional basis
for defining the fundamental relational
rights and responsibilities of
persons,’ same-sex couples are
similarly situated to opposite-sex
couples.” Yes, “similarly situated.”
Equal rights and equal protection.
Who could not understand that?
Apparently, the lawyers in the
office of the Attorney General.
They would turn legitimate children
into bastards. They would force
parents to adopt their own children.
They would subvert the court’s
decision.
How shameful. CV
Michael Gartner is a long-time
Iowa newspaperman who will be
affected as a father and grandfather
by the Attorney General’s memo.
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