ADF Alliance Alert

Yesterday afternoon a Polk County, Iowa, trial court granted summary judgment to Lambda Legal Defense and Education Fund and their test plaintiffs, holding that Iowa’s Defense of Marriage Act is unconstitutional and is stricken from the Iowa Code, ordering the Polk County Registrar to issue “marriage” licenses to the plaintiffs and any other otherwise-qualified same-sex couples, and decreeing that all remaining provisions of Iowa’s Marriage Code must be “read and applied in a gender-neutral manner so as to permit same-sex couples to enter into a civil marriage pursuant to said chapter.”

Late this morning, this judge who attempted to completely redefine the institution of marriage in Iowa with a stroke of his signing pen yesterday, issued a stay of his own order (a copy of the stay order is here). Thus, he has now halted the further issuance of “marriage” licenses to same-sex couples in Iowa, pending the Polk County Attorney’s appeal to the Iowa Supreme Court.

Before the stay was entered, however, another judge of the Polk County District Court issued an order waiving Iowa’s mandatory three-day waiting period for the issuance of a marriage license following the filing of an application for one. As a result, as this news article reports, a male couple had a outdoor wedding ceremony this morning in Des Moines, performed by a Unitarian minister. It is believed that the documentation of this wedding was returned to the Polk County Recorder before the entry of the stay.

While we have not seen the judge’s order waiving the three-day period or any record accompanying it, it was presumably granted under Iowa Code Annotated Sec. 595.4 (“Age and qualification–verified application–waiting period– exception”). This is the only provision in Iowa law of which we are aware that appears to allow for a waiver of the three-dayperiod. (At such time as the application for the waiver and/or the judge’s order granting it becomes public record, we will update this post with additional information about the purported legal basis for the waiver.) Sec. 595.4 states in relevant part:

A license to marry may be validated prior to the expiration of three days from the date of issuance of the licensein cases of emergency or extraordinary circumstances. An order authorizing the validation of a license may be granted by a judge of the district court under conditions of emergency or extraordinary circumstances upon application of the parties filed with the county registrar . . . . The judge shall, if satisfied as to the existence of an emergency or extraordinary circumstances, grant an order authorizing the validation of a license to marry prior to the expiration of three days from the date of issuance of the license to marry.

The AP reports on the couple who obtained the waiver and got “married”:

The marriage license approval process normally takes three business days, but couples can pay a $5 fee and get a judge to sign a waiver allowing them to skip the waiting period.

That’s what Iowa State University students Fritz and McQuillan did.

“We’re both in our undergrad programs and we thought maybe we’d put it off until applying at graduate school, but when this opportunity came up we thought maybe we wouldn’t get the opportunity again,” Fritz said. “Maybe the chance won’t come again.”

Friday morning, with the waiver and marriage license in hand, Stringer married the two men, concluding the ceremony by saying, “This is a legal document and you are married.”

The two students then kissed.

Emergency or extraordinary circumstances. One wonders: is this standard satisfied by the parties’ or the judge’s concern that the purported legal basis for the proposed “marriage” is minutes or hours away from being undermined by an order of stay?

In May 2007, pro family groups and citizens signed a letter to Secretary of Defense Robert Gates asking that he enforce the Military Honor and Decency Act, 10 U.S.C. § 2489. The Act bans the sale or rental of “sexually explicit material” on U.S. military installations or in military exchange stores such as AAFES, NEX, and MCEX. The statute defines “sexually explicit material” to include recordings, films, videos, periodicals with visual depictions, or materials “produced in any medium, the dominant theme of which depicts or describes nudity, including sexual or excretory activities or organs, in a lascivious way.” Here is the response of the Department of Defense. You will note that, incredibly, the Department does not consider such publications as Playboy, Penthouse, Nude, and Nude Playmates to be sexually explicit!

Certainly, the Department does not take the Military Honor and Decency Act seriously. It relies on its own interpretation of the law in Department of Defense Instruction 4105.70, which is have reprinted below. If you read the instruction, you will see that even under it, all the above mentioned publications must necessarily be prohibited from sale. More needs to be done on this matter and we will continue to pursue DOD on this.

3. DEFINITIONS

For the purpose of this Instruction, the following definitions apply:

3.1. Dominant Theme. A theme of any material that is superior in power, influence, and importance to all other themes in the material combined.

3.2. Lascivious. Lewd and intended or designed to elicit a sexual response.

3.3. Material. An audio recording, a film or video recording, or a periodical with visual depictions, produced in any medium.

3.4. Property under the Jurisdiction of the Department of Defense. Commissaries, facilities operated by the Army and Air Force Exchange Service, the Navy Exchange Service Command, the Navy Resale and Services Support Office, Marine Corps Exchanges, and ship stores.

3.5. Sexually Explicit Material. Material, the dominant theme of which is the depiction or description of nudity, including sexual or excretory activities or organs, in a lascivious way.

4. POLICY

It is DoD policy that:

4.1. No sexually explicit material may be offered for sale or rental on property under the DoD jurisdiction, and no member of the Armed Forces or DoD civilian officer or employee, acting in his or her official capacity, shall offer for sale or rental any sexually explicit material.

4.2. Material shall not be deemed sexually explicit because of any message or point of view expressed therein.

Diversity, diversity, diversity! This is oftentimes the war hymn and battle cry of organizations committed to the proliferation of homosexual and alternative lifestyles. Yet, when it comes to the actual practice of what they preach, homosexual activists are remarkably intolerant. Diverse opinions and lifestyles are only freely accepted by homosexuals when those opinions and lifestyles are consistent with their own. In this instance, you do not have diversity, but a singular view of how they believe things should be. The opinions of over 50% of Oregon’s voters that marriage means, and has always meant, one man and one woman does not, in the mind of many of Oregon’s homosexual activists, represent one of many diverse views, but an intolerant view. Thus, these activists’ vision of diversity is actually hypocrisy.

Currently, in Oregon, there is a citizen drive to put to statewide vote Oregon’s new domestic partnership laws set to go into effect on January 1, 2008. In response, the most recent brand of homosexual “diversity” in Oregon is the campaign of intimidation that was launched by Know Thy Neighbor. The purpose and design of this web site is to cast as wrong or un-American those citizens who merely exercise their God-given right to participate in the electoral and/or petition process. What’s worse is that Know Thy Neighbor’s websites shamelessly attempt to portray themselves as a pro-marriage outfit, wielding the battle cry of “Protecting ALL Oregon families.” Gay Rights Watch has also stepped up to the plate, encouraging citizens to call or e-mail regarding any person seeking signatures as part of the petition drive. Again, another scare tactic.

Regrettably, the hypocrisy exists on another level. Just two years ago, the 9th Circuit Court of Appeals in Planned Parenthood of Columbia/Willamette Inc. v. American Coalition of Life, 422 F.3d 949 (9th Circuit 2005) upheld large civil and punitive damages awards against pro-life advocates who distributed the names and pictures of abortionists on posters. The posters never threatened harm towards the abortionists or called for harm to come to the abortionists. In point of fact, the 9th Circuit found that “ACLA made true threats intending to intimidate physicians by generating a fear of violence, though not necessarily intending to hurt or kill these particular providers.” Thus, although the information distributed was public information, and made no threats of harm, the 9th Circuit called the perceived generated “fear of violence” sufficient for legal liability to attach. In other words, any published information, no matter how true or public, that generates a “fear of violence” is legally actionable.

It is appropriate that this case arose out of Oregon because, now, that which is good for the goose is perfectly permissible for the gander. Moreover, the circumstances presented with Know Thy Neighbor’s campaign are much more egregious than those presented in the 9th Circuit case. Here, Know Thy Neighbor’s method of distribution—the internet—is far more expansive than the posters distributed by ACLA. Moreover, though the Oregon information has not yet been posted, in its other states of Florida and Massachusetts, Know Thy Neighbor is posting the full name and full address, right down to the apartment number and county of each signor—much more information than was published about the abortionists. This information not only invites personal retribution against each signor and their property, it places each member of their family, along with children and pets, within the line of fire as well. Moreover, it invites campaigns of telephone harassment since anyone with half a brain can now lookup a signor online or in the telephone book and easily make a call. Finally, each of these citizens who chooses to participate in our great nation’s political process is subject to harassment by mail. Know Thy Neighbor is taking a divisive tactic literally to the neighborhood, attempting to create schisms within any given peaceful community in pursuit of a political objective.

To Know Thy Neighbor, political objectives are now more important than even the peaceful existence of neighborhoods and a citizen’s right to the peaceable enjoyment of their home. Their tactics lack any measure of shame. As evidence of their lack of shame and any semblance of concern for the persons whose names they post, consider the following retraction by a Massachusetts individual. This person executed an affidavit requesting that their name not be published or listed. Moreover, they claim that they did not know what they were signing, suggesting that if they had to do it all over again, they wouldn’t sign. Did Know Thy Neighbor honor this request or even suggest praise for this retractor? No. Instead, Know Thy Neighbor not only has this person remaining on its website, they elected to post her affidavit as well. This is clear evidence that Know Thy Neighbor cares nothing for Thy Neighbors.

But wait! It’s public record! What’s the big deal? The precise reason that records are public is so that the public, when necessary for a specific purpose, can lookup those records. Here, Know Thy Neighbor is making an effort to bring public information to the doorsteps of those who might never seek out the information themselves. Why? For one reason, and one reason alone—a campaign of intimidation. As the information is already public, Know Thy Neighbor can’t justify its activities under that guise. Such would be tantamount to me saying that I cite cases in my briefs in order to publish those cases. This, of course, makes no sense. The cases are already published. However, I cite them for a reason—to support my arguments and objective. Here, one must ask about the objective of Know Thy Neighbor. Under the misnomer of “marriage equality,” Know Thy Neighbor wants same-sex “marriage” legalized in Oregon. Yet, fresh off a campaign loss regarding a Constitutional Amendment preserving the definition of marriage in Oregon as between one man and one woman, Oregon’s community of alternative lifestyles is taking more desperate measures. The method here is to intimidate and scare Oregonians away from participating in their right to vote and speak their voice…

Peter Gentala describes the situation and links to the court order over at the AZ Policy Blog.

Jackie Goldberg has an article in yesterday’s LA Times entitled, Going past domestic partnership: The same-sex unions law I wrote was never supposed to be an excuse not to legalize marriage for all.

Goldberg’s article makes an illogical leap from a discussion of problems with domestic partnership benefits to her proposed solution of “same sex marriage.” The benefits discussed are a statutory creation working through the usual glitches attendant to new legislation. Marriage, on the other hand, is based on long-standing tradition grounded in public policy and society’s interest in procreation. In reality, benefits are not the raison d’etre for marriage; they are, rather, the state’s incentive to encourage men and women into committed relationships for the benefit of children. The voters in California implicitly understood this and accordingly passed Proposition 22 back in 2000, which defined marriage as a union of one man and one woman.

As Goldberg readily admits, the California legislature has given domestic partners all the rights and obligations that the State is entitled to give to married couples. The problem, therefore, cannot be that the state has not given enough despite withholding marriage. If there are issues arising from how these benefits are applied, or questions of construction with other statutes, we should resolve these questions as we would with any statutory scheme. Goldberg’s solution, by contrast, is to ignore the public policy debate and use benefits as a ramrod to batter through the democratic process.

Most problems with how these benefits are applied in practice will be resolved through judicial action. If Goldberg or others believe the courts get something “wrong,” they are free to return to the legislature to urge corrective action. Is Goldberg naïve enough to believe that benefits issues do not arise in the context of marriage? Or that married couples are able to rely on default provisions of marital status and thereby avoid hassles? Let me give one small example. My wife and I have three children. How many married couples believe their marital status means they have no need to execute wills, create trusts for the benefit of their children, name guardians, or sign health proxies? I have never once said to my wife “There is no need for us to plan; as a married couple we have the marvelous default provisions of the intestacy laws.” The fact is everyone in society is burdened with planning, and controversies constantly arise, for married and single folks, over “benefits” and similar issues.

The benefits are clearly a red herring. Marriage represents full societal approval, and a discussion about benefits is no more than a sneaky end run to bypass a full societal debate.

ADF Attorney David French has this post over at the National Review Phi Beta Cons blog. Tamar Lewin has written a NY Times article on the same topic entitled: Universities Install Footbaths to Benefit Muslims, and Not Everyone Is Pleased.

David also has a very interesting post on Phi Beta Cons entitled: Has the Campus Culture War Even Started?

At How Appealing, Howard Bashman links to an en banc ruling today by the D.C. Circuit holding that a terminally ill patient does not have a right to access potentially life-saving drugs not yet fully approved by the government.

Apparently, there is a “right” to access contraceptive drugs and force pharmacists to provide them, but those “rights” do not extend to potentially life saving drugs. Here is a gem from the dissent:

In the end, it is startling that the oft-limited rights to marry, to fornicate, to have children, to control the education and upbringing of children, to perform varied sexual acts in private, and to control one’s own body even if it results in one’s own death or the death of a fetus have all been deemed fundamental rights covered, although not always protected, by the Due Process Clause, but the right to try to save one’s life is left out in the cold despite its textual anchor in the right to life.

Lyle Denniston has a new post at the SCOTUS blog discussing this case and indicating that it will be appealed to the U.S. Supreme Court.

The Volokh Conspiracy also has several posts discussing this case, Abigail Alliance v. Eschenbach.

As we noted earlier, the 10th Circuit has issued a new decision striking down the Oklahoma law denying recognition to out-of-state same-sex adoptions, as violating the federal Full Faith & Credit Clause (“FFCC”). The decision highlights the difference in treatment that various official actions by states receive under FFCC. Let’s not neglect an opportunity here to start by actually reading the words of this important but often overlooked and poorly understood section of the U. S. Constitution:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. (United States Constitution, Art. IV, Sec. 1.)

In many decisions over the decades, the U. S. Supreme Court has explained the historical importance of the FFCC in knitting together the various states into one Nation:

The animating purpose of the full faith and credit command, as this Court explained in Milwaukee County v. M.E. White Co., 296 U.S. 268, 56 S.Ct. 229, 80 L.Ed. 220 (1935)

was to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right, irrespective of the state of its origin.

Id. at 277, 56 S.Ct., at 234.

See also Estin v. Estin, 334 U.S. 541, 546, 68 S.Ct. 1213, 1217, 92 L.Ed. 1561 (1948) (the Full Faith and Credit Clause “substituted a command for the earlier principles of comity and thus basically altered the status of the States as independent sovereigns”).

Baker by Thomas v. General Motors Corp., 522 U.S. 222, 232 (1998).

The 10th Circuit draws heavily from the Supreme Court’s Baker decision in holding that “there is ‘no roving “public policy exception” to the full faith and credit due judgments,’ [cit.] and [Oklahoma] presents no relevant legal argument as to why the Doels’ out-of-state adoption judgments should not be recognized under the Full Faith and Credit Clause” (emphasis the court’s). The stress the 10th Cir. panel placed on the word “judgments” by underlining it is a recognition that judgments historically have been entitled to the “fullest” full faith and credit in a way that other state actions (e.g., statutes, regulations, licenses granting legal statuses) have not.

By way of contrasting example, throughout America’s history, even with the FFCC in place from the beginning, the states have consistently maintained that interstate recognition of marriage (a legal status created by license and ceremony, not through a judicial proceeding) is by comity, i.e.<, discretionary, rather than a mandatory dictate of the FFCC. Thus, for instance, State A has often grappled with whether its public policy against incest is so important that a legal marriage from State B between people of closer consanguinity than is permitted in State A will be recognized in State A. Such analysis is at the heart of the current judicial confrontation with same-sex "marriage" underway in Rhode Island, in which ADF is involved.

The Supreme Court in Baker emphasized that the FFCC requirement of interstate recognition is at its strongest regarding judgments, a decisive factor for the 10th Cir. faced with a statutory bar to recognition of judgments granting adoptions:

Our precedent differentiates the credit owed to laws (legislative measures and common law) and to judgments …. The Full Faith and Credit Clause does not compel “a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.” Regarding judgments, however, the full faith and credit obligation is exacting. A final judgment in one State, if rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment, qualifies for recognition throughout the land …. A court may be guided by the forum State’s “public policy” in determining the law applicable to a controversy. But our decisions support no roving “public policy exception” to the full faith and credit . . .

The AP reports on Friday’s ruling in Finstuen v. Crutcher, No. 06-6213 (10th Cir. August 3, 2007). Oklahoma amended its statute to prohibit recognition of foreign same sex adoptions. The relevant statute provides:

§ 7502-1.4. Foreign adoptions

A. The courts of this state shall recognize a decree, judgment, or final order creating the relationship of parent and child by adoption, issued by a court or other governmental authority with appropriate jurisdiction in a foreign country or in another state or territory of the United States.

The rights and obligations of the parties as to matters within the jurisdiction of this state shall be determined as though the decree, judgment, or final order were issued by a court of this state. Except that, this state, any of its agencies, or any court of this state shall not recognize an adoption by more than one individual of the same sex from any other state or foreign jurisdiction. Okla. Stat. tit. 10, § 7502-1.4(A) (the “adoption amendment”).

After having adopted in California, Plaintiffs challenged the last sentence in this statute that prohibits recognition of adoptions by same sex couples. A 10th circuit panel held:

We hold today that final adoption orders and decrees are judgments that are entitled to recognition by all other states under the Full Faith and Credit Clause. Therefore, Oklahoma’s adoption amendment is unconstitutional in its refusal to recognize final adoption orders of other states that permit adoption by same-sex couples. Because we affirm the district court on this basis, we do not reach the issues of whether the adoption amendment infringes on the Due Process or Equal Protection Clauses.

Lambda Legal has issues this press release in connection with the case. ADF offered assistance in connection with this case, but it was refused.

Any family that has more than two children risks being shunned and stared at in today’s society which promotes contraception, abortion, malthusianism, and rabid environmentalism. But, one Arkansas family just brought the conflict between the culture of life and the culture of death into even sharper focus. The Discovery Channel recently did an interesting and generally positive report on the Duggar family in Arkansas. The Duggar family is like millions of conservative Christian families all over America’s heartland with one notable exception — they have 16 children.

Today, the Drudge Report has linked to this AP report indicating that the Duggars just had their 17th child. Sadly San Francisco Chronicle columnist, Mark Morford hatefully responds with this article: God Does Not Want 16 Kids: Arkansas mom gives birth to a whole freakin’ baseball team. How deeply should you cringe?

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