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December 08, 2008

Tomorrow: webcast of oral argument in the IA marriage case

The Iowa Supreme Court will hear arguments tomorrow morning at 10 a.m. CST in Varnum v. Brien, the challenge brought by Lambda Legal to that state's exclusion of same-sex couples from marriage. The court has set up a special segment of its web page for the case, including a live streaming capacity for the argument.  The same page has copies of the briefs of the parties and the trial court opinion.

Like the other marriage challenges that have been brought in the last five years, this one is based exclusively on state law.  Excluding federal issues insures that there will be no way for the U.S. Supreme Court to consider the case, since it only hears cases in which a question of federal law is at issue.

The Varnum case is especially interesting for a couple of reasons:

First, it's the last of the marriage challenges for probably a long time. There are no more states where advocates see any realistic chance of winning a court battle.  The immediate future of the marriage equality campaign will center on legislative fights, probably in NJ, RI and VT. This is just as well.  The only silver lining from the Prop 8 disaster will be enactment of marriage equality through majoritarian, legislative means. This will re-legitimate same-sex marriage as a concept that has popular support in some parts of the country.

Second, although most of the legal issues - right to marry, equal protection - are the same as in other marriage cases, Varnum also touches on disputes over social science evidence. One issue that the Iowa Supreme Court may address is whether the trial court was correct to strike as unqualified most of the state's proffered expert witnesses on the effects of gay parenting.  Unlike other marriage cases, in Varnum the parties offered detailed statements by various medical and social science experts on the effects of having gay parents and on whether different-sex parents are necessarily better.  The trial judge found most of the material offered in defense of the exclusion to be, in essence, junk science. On appeal, the state has asked the appellate court to overrule this ruling on evidence.

Should be interesting ...

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