Iowa Joins States Legalizing Same-Sex Marriage

LAW's Robert Volk sees Northeast states following suit, and soon

April 29, 2009
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Photo courtesy of BU School of Law

On Monday, April 27, nearly 400 same-sex couples in Iowa applied for a marriage license. Granted waivers of Iowa’s three-day waiting period, dozens wed at hastily planned ceremonies on the steps of public buildings.

The number of states that recognize same-sex marriage doubled from two (Massachusetts and Connecticut) to four in April. In the wake of Proposition 8, which changed California’s constitution and restricted that state’s definition of marriage to opposite-sex couples, Iowa’s Supreme Court voted unanimously to make the state the third in the nation to legalize same-sex marriage. And just days later, Vermont became the first state to legalize gay marriage through a legislative vote when the legislature overrode Governor Jim Douglas’ veto of a bill allowing gays and lesbians to marry as of September 1.

Gay rights supporters — including Robert Volk, a School of Law associate professor, expect more states to follow suit.

Volk is the advisor for Outlaw, the law school’s lesbian, gay, bisexual, and transgender (LGBT) student group, and he taught New England’s first course on gay and lesbian legal issues, in 1987. He wed his partner of 11 years last summer.

BU Today: How has public opinion regarding same-sex marriage changed in Massachusetts during the past five years?
Volk: It has become an accepted part of life, and it has changed a lot of people’s presumptions. When you see a wedding band on a man or a woman, you don’t automatically assume they’re married to someone of the opposite sex. When my partner and I were shopping for wedding rings, we went to the jewelers building in Downtown Crossing, which is kind of an old-fashioned place, and the jewelers were completely unfazed. Same-sex marriage has become a part of life here, and it’s accepted.

How did the legalization of gay marriage affect the BU community?
BU has a terrible history on gay and lesbian rights. While almost all universities in the Boston area recognized domestic partner benefits for same-sex couples, BU did not. Gay BU employees could not get health insurance benefits for their partners until the state legalized same-sex marriage. This occurred around the same time that Aram Chobanian (Hon.’06) became president of BU, and when the decision came down, he issued an order that said Boston University would of course grant benefits to married same-sex couples. It was the first time the University recognized same-sex couples and the LGBT community.

What disadvantages arise from gay marriage being recognized at the state but not the federal level?
Taxes are much harder. You have to file a joint form for the state and separate ones for the feds. And even though BU grants health benefits to my partner, they’re taxable. If I were married to a woman, they would not be taxable. Social Security benefits don’t apply to same-sex spouses, and immigration laws don’t recognize same-sex marriage. If you’re heterosexual and you want to marry someone who is not an American citizen, it’s easy. But not if you’re gay.

Will the issue of gay marriage ever be put to Massachusetts voters?
It’s unlikely this will happen, because, unlike in California, it’s not that easy to put something on the Massachusetts ballot. In California, it’s quite easy. All you have to do is collect enough signatures, and no legislative action is necessary. But in Massachusetts, it requires legislative action. And if the state did vote, I think there’s a very good chance the population would choose to keep it.

Why was the Vermont decision so significant?
Vermont’s decision is highly significant because it is the first state to legalize same-sex marriage through legislation, as opposed to litigation. Conservatives sometimes argue that the courts are imposing their decisions on the citizens. But in Vermont the legislature did it, and the legislature represents the voice of the people.

Do you think other states will follow suit?
Yes, it’s only a matter of time. The New York governor just asked the state legislature to vote for it, and there’s action in New Hampshire, Maine, New Jersey, and Rhode Island as well, although the Rhode Island governor has said he will veto it. I predict that in the next few years, there’s going to be a clump of states in the Northeast that legalize same-sex marriage.

Why the Northeast?
New England is a reliably liberal part of the country, and I also think there’s a libertarian live-and-let-live streak here. Also, evangelical Christians are very weak in this part of the country, unlike in the South and in California.

Do you think gay marriage will ever be recognized at the federal level?
Yes. It took a long time for integration to take effect. And the decision to overturn laws banning mixed-race marriage didn’t happen until 1967. The first state to ban miscegenation did it in the 19th century, and the Supreme Court didn’t make its decision until 100 years later. We’re moving pretty fast in comparison.

What are the arguments against same-sex marriage?
Most of them are religiously based, but marriage is a civil institution. No minister, priest, or rabbi will ever be forced to perform a same-sex marriage, and the benefits of marriage are civil in nature. So I don’t think private morals have any place in this debate, and I don’t think I should have to live by someone else’s moral code or religion.

Is it a violation of voters’ civil liberties, as many opponents of gay marriage argue, not to be able to vote on gay rights?
If we had put desegregation to a vote in the 1950s, we’d still be segregated today. We didn’t have a vote to decide whether women should be paid the same as men or to decide whether women should be allowed to join the armed services. Those are rights. The reason we don’t put rights to a vote is because by their very nature, rights for minorities are unpopular. So no, there’s absolutely no violation, because in this country, individual rights are not established by majority rule.

Vicky Waltz can be reached at vwaltz@bu.edu.

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There are 13 comments on Iowa Joins States Legalizing Same-Sex Marriage

  3. By “weak” I’m pretty sure Prof. Volk meant that compared to the South and California particularly, there are not as many evangelical Christians in the Northeast and therefore their political power here is weaker.

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  4. This has nothing to do with civil rights. It’s all about forcing cultural change. This is a conscious strategy. There are no rights that “marriage” grants at the state level that “civil unions” do not. Yet, homosexual partners insist that others recognize them as “married”. To suggest any differently is is the result of ignorance (perhaps willful), questionable logic, or outright deception.

    I sadly have to agree, though, that it looks like it is becoming mainstream and there’s nothing much that can be done about it. If only we educated our general populace they’d be better equipped to evaluate issues like this. Unfortunately, the left-wing has worked very hard over the last few decades to infiltrate the education system and indoctrinate the youth. So, here we are.

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  5. First, he says: “Vermont’s decision is highly significant because it is the first state to legalize same-sex marriage through legislation,…and the legislature represents the voice of the people.” … Then, he says: “The reason we don’t put rights to a vote is because by their very nature, rights for minorities are unpopular. So no, there’s absolutely no violation [of civil liberties], because in this country, individual rights are not established by majority rule.” >>> Did anyone pick up on the contradiction here? In other words, let the legislature be the voice of the people if you don’t think a vote by the people will go in your favor. Does anyone really think the voice of the people of Iowa has been represented? Any time gay “marriage” has gone to the people, it has been voted down. Who are we kidding? If the Iowa legislature had voted this down, you can be certain there would be an outcry that civil liberties had been violated, not acceptance that the voice of the people had been represented. My belief in democracy is stronger than my belief that gay “marriage” is wrong. If it is legalized by a vote of the people, I will accept it. The one right that matters most in this country above any other is the right to vote. When that gets taken away, there are no other rights.

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  9. “…the benefits of marriage are civil in nature”

    True. But the institution is religous in its origins. The civil registration of marriage in the US flowed from the European model of having the Church (which was interwined with the soverign) keep marriage records. Without an official religion the US needed a system to replace the European system and that is where civil marriage originates in the US.

    What always confused me about the same-sex marriage debate is that LGBT activist have spent the last 40 years arguing that the government has no place in their private lives (which as a libertarian I agree with) but now wants marriage, whereby the government records cohabitation, to cover them as well. Why should their position change now? The answer is exactly as Prof Volk states – to obtain the benefits of marriage.

    OK. So why not ban “marriage” as a civil institution and replace it with a civil-union system? Marriage would stay as a religous institution. Civil union would include any two person combination regardless of gender. Sounds like a good system — but all I hear is that the word “marriage” is important. It shouldn’t be; the benefits are what is important.

    Anonymous
    BU Law, Class of 2000

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  10. Citizens voting for elected officials and tax/bond levies are not the same as citizens voting for equal rights and civil liberties. The former is right; the latter is wrong. It’s why we have constitutions as well as laws – to protect the rights of minorities from the possible tyranny of the majority. Constitutions, laws enacted by elected legislators, and court interpretations of both, all work together to protect civil liberties and ensure equal rights. Check the Federalist Papers again, before equating a citizen vote on this type of issue with any other vote.

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  11. “What are the arguments against same-sex marriage?
    Most of them are religiously based, but marriage is a civil institution…. I don’t think private morals have any place in this debate….”
    —– Religion, especially organized religion, is only an accidental vessel for shaping the notion of marriage, and marriage has existed even where religion was basically unorganized. There are reasons to oppose granting marriages to gays that don’t have to be conceived in religious terms.
    —–Morals are intrinsically private– the locus of moral reasoning is within one’s subjective consciousness, and that is where a person decides whether to behave in a morally valuable way or not. Murder-prohibition is a moral issue that garners universal agreement, and is codified in law. So are prohibitions of theft, cruelty to animals, and littering, in descending degrees of importance. The idea that private morality has no place in public policy is facile and dismissive, and misses the point about how people reason ethically and politically, and how their sentiments influence that reasoning.
    —– The special role of heterosexual marriage and its particular benefits to society haven’t been adequately debated. This is in part the fault of religion, because many objectors couch their objections in religious terms, and render them distasteful to a country founded, at least on paper, on toleration of others’ religions.
    —– Mostly, though, the problem is demographic, since the discourse on sexual matters is owned and determined by persons with an ideological bias. The huge majority of institutionally-credentialed “experts” in the fields taken to be “relevant” are predisposed to view these issues through a left-leaning lens. The determiners of late-modern conventional wisdom– academics (especially in the relevant disciplines of the humanities and the social “sciences,” journalists, schoolteachers, psychologists, and social workers– are, according to any reputable polling, much farther to the left than the general population. In an age like ours, with serial killers, lone-wolf mass-murderers, high rates of suicide, child-abuse, spousal abuse, depression, terrorism, fundamentalisms both religious and secular, it’s not a bad idea to dig a little deeper in the direction of assumption-questioning regarding our conventional notions or what a human person is, and what kind of policies are best for the management of human affairs. (That line about “better reporting” is wearing thin, especially when there’s so little evidence to support it).
    —– Instead, our best and brightest congratulate themselves for increasingly trivial intellectual innovations, further steps in the directions of subjectivism and empiricism begun so tentatively in the 17th century, and calling them “radical.” They aren’t radical, only pushed beyond the point of diminishing returns. We’ve institutionalized the scientific method, and have great capabilities in the material sciences and technology, but these are little help with the questions of how to evaluate choices, how to order human affairs, and, beyond a limited material basis, what the best way is to maximize human development. Empiricism concerns the management of sense-data that are intrinsically superficial, and so-called “post”-modernism is an intellectual hoax and a celebration of skepticism that treats reality as opaque in manner that is phenomenologically superficial. Both of these conventional wisdoms are subject to question, not to overturn them, but to locate them within a broader intellectual viewpoint. They sure ain’t working today.
    —— The term “marriage” carries a connotation of a melding of opposites or at least different elements, and this has particular value to society. This notion of “difference” is controversial, and though feminists affirm difference when it can be used to their advantage, and deny it when it can’t, it’s pretty well accepted that SOME difference exists, and that it is something deep and somewhat mysterious. Marriage is a reconciliation of this difference, with benefits for participants and dependents in relation to the fullness of human experience. It is, ironically, one of the foundations of toleration (ironically, since many who talk the talk about toleration these days are quite intolerant of diversity of ideas, and many seem to feel quite justified in suppressing others’ free speech). This element of oppositeness and reconciliation isn’t present in homosexual relationships, and one can well ask whether the gender-solipsism that results isn’t a valid criterion for keeping marriage a special relationship between male and female. The problem is that such questions are not fully debated or considered, and free inquiry into these important matters is often suppressed with accusations of hate-speech and bigotry. This is another irony, since bigotry and prejudice are functions of the lack of imagination, free inquiry, and open-mindedness, and there seems to be as much of this among gay advocates as among their opponents.
    —– Another problem of our age is the tendency among many intellectuals to reduce ethical and political reasoning to emotions, or to note an emotional basis and then to confuse the basis with the entirety. Emotional outbursts and accusations of hate are common, and more common with the implicit encouragement of many theorists.
    —– Providing some means for society to affirm the greater value of committed homosexual relationships over that of uncommitted ones is a worthy goal, but marriage is not the right vehicle, because expanding the definition of marriage waters it down at a moment of history when it has been under strain for half a century already. In European countries where gays are allowed to marry, the marriage rate among heterosexuals drops, and in some cases is no longer the norm for heterosexual adults. And even though marriage has been under duress for half a century, stable heterosexual marriages still statistically provide the best outcomes for child-rearing. That all of the research on these outcomes has been done during this historical moment of marital duress should give one pause when it comes to drawing conclusions from the data about the triviality of the difference.
    —– Marriage isn’t adequately comprehended when considered as a “right.” Marriage is a complicated thing involving commitments and obligations, benefits to society that reside at a deep and as-yet unexplored primitive level, and privileges beyond what can be contained in the notion of a right. And furthermore, our human-affairs discourse leans too heavily on passively “inherited” rights, which imply a passive, amoral, and disempowered notion of what a person is, and too little on obligations, ethical consequences, and the elements of the human experience that imply freedom and empowerment. A full consideration of marriage has to include some recognition of the faddishness of our current ethical-reasoning methodology and assumptions and their peculiar extremeness considered against the historical entirety of the human experience.
    —– In another way, sexual orientation is somewhat problematic as a basis for civil rights. In many or most cases, sexual orientation is predetermined reality for people, but there is also a margin of optionality for many that is lacking or very rare as regards sex or race. There’s a component of choice for many, and the environmental influence is subject to choices in child-rearing practices. As a basis for civil rights, sexual orientation has one foot in the door of validity and one foot out. It’s not entirely an accident of birth, and even to the extent that it is, sexuality is behavior, and one can manifest it, or not, in different ways, and to different degrees.
    —-To some extent the current debate has been determined by a reactionary response to extremists who refuse to accept any innocent accident-of-birth component of sexual orientation, and who would prefer to interfere with the private intimate conduct of gays, to the point of physical abuse, job discrimination, and so on. But the extremeness of authentic bigots is no excuse to throw intellectual caution to the winds and plunge headlong into social change of dubious value.
    —– No religious considerations have been presented above, other than to acknowledge that religious perspectives have done harm to the position against gay marriage. The gist of the above argument is that the movement for gay marriage is an intellectually and ethically faddish conventional-wisdom bandwagon at a time when conventional wisdom and assumptions are past the point of diminishing returns. Gay marriage SEEMS like a good idea at this time, but this isn’t a good time to be evaluating ideas like this.

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  12. First off, the kid under me just wrote an essay on a message board. Impressive.

    Secondly, can we get the slippery slope argument in on this for a moment? And I am not talking about the ” oh what is next- animals?!” argument. I mean, what happens when polygamists start demanding marriage rights. You can make the EXACT same arguments for polygamy as gay marriage, the only difference at this time is that less people practice it. But that same thing could be said for gays 50 years ago. Just give it time and we could be hearing from people who want to marry a man and a woman- Why not? It is there free right to marry whomever they choose, correct?
    if i am over simplifying with this idea let me know please.

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  13. In some states, legislators allow same sex couple to have legal marriage, while in other parts it is stricly banned. The Department of Justice announced it will not back the Defense of Marriage Act, or DOMA, in court. Here is the proof: Justice Department to stop defending Defense of Marriage Act Same sex marriage at the federal level is governed by Defense of Marriage Act, which states the federal government doesn’t recognize homosexual marriages. The law was decided to be unconstitutional from an ongoing discussion between the President and the Attorney General.

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