Iowa Same-Sex “Marriage”: One Instance of Judicial Activism Begets Another?

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?