Legalizing Love: the state of same-sex marriage in the Midwest
- Dec. 8, 2011
- 40 Comments
As the Schweda-Stoskopf family climbed out of their sedan, the kids begged to go to the pool later that day. Their parents simply said they would talk about it later. This situation is not uncommon for families. The only difference some people may see is instead of a mom and a dad, the kids are talking to their two dads.
Ken and Evan dated for two years and then married in Iowa this May. The couple did not have much choice about where they would be married because Iowa is the only state a reasonable distance from their home in Overland Park that will recognize and perform same-sex marriages.
“The way that we tell other people is that we met online,” Evan said. “It turned out that we had one date and we’ve never really left the other person’s side since then.”
After about a year of dating, Evan and Ken traveled to Florida. Evan said he brought Ken out to a bridge leading into a wooded area by the beach with the sunset in the backdrop. When Ken turned, Evan was down on one knee proposing.
A year later, Evan was accepted to a school in Chicago, and they broke up for about a month.
“We got to the point where we could drink an entire bottle of wine while we talked,” Evan said. “I ended up giving up the school and moving back, because apparently crying and drinking wine over Skype isn’t a healthy relationship.”
After Evan moved back to Kansas he began the couple’s application to be married in Iowa.
“Two weeks in advance we called up our five straight buddies and drove to Iowa,” Evan said about their courthouse marriage. “His (Ken’s) best friend actually got certified, ordained, and married us right there on the steps.”
Back to reality
Kansas does not recognize Evan and Ken’s marriage. The Kansas legislature passed a constitutional amendment defining marriage as between one man and one woman. The state does not recognize same-sex marriages, even if they are performed elsewhere.
Because marriage is not specifically addressed in the Constitution, it has been deemed a state government issue, not a federal issue so far. Until the Supreme Court rules otherwise, states are free to define marriage as they see fit.
A large portion of United States judicial history is centered around the rights and powers invested in state governments compared to the powers of the federal government.
The Tenth Amendment states,”The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people.”
The state does recognize that the men hyphenated their last names. Many same-sex couples, like Ken and Evan, have found ways to work around the state ban on same-sex marriage. Kansas state laws deny rights and many tax exemptions to same-sex couples because as far as the state is concerned, the couples are not legally married.
According to Stephen McAllister, the Kansas solicitor general, if one spouse dies, the surviving spouse will receive Social Security benefits. Same-sex couples and people who are living together but not legally married do not receive the same benefits. The same rule applies to federal taxes, landownership and contracts.
Evan just bought a new home for the family in Olathe. Kansas does not recognize his marriage, so he had to write Ken into a living-will as the inheritor of the house instead of listing Ken as a joint tenant on the mortgage. When people have joint tenant status they are able to inherit property automatically.
“It’s an additional $300 to make that happen for something that straight couples get free,” Evan said.
From the beginning of the American legal system, laws were directed toward land-owning men only. Laws then moved to focusing on married and non-married as two different statuses to define individuals, and those two statuses are what most laws are currently based on.
“For most states it was just assumed that we were talking about a traditional marriage and that is how local laws were geared,” McAllister said.
The desire for same-sex marriages has changed the playing field. Milton Wendland, a professor of women and gender studies, said that throughout many communities people are looking at why marriage has to be the defining trait for how people are organized.
He referenced the Human Rights Campaign’s survey for major corporations about their business practices. The survey asks the companies if they have non-discrimination policies or if they offer partner benefits.
“Most of these companies are saying, ‘Yes, we do,’” said Wendland. “We want to attract the best candidates for our jobs and that means offering these things.”
McAllister said many aspects of the legal system are tied to marriage because same-sex marriage has become openly acceptable only in the last few decades. The American legal system is still using precedents and laws set from the earliest days of the nation.
In 1972, the Supreme Court was presented with its first same-sex marriage case, Baker v. Nelson. The case was brought by two men, Richard Baker and James McConnell, who had applied for a marriage license in Minnesota and were denied on the grounds that they were of the same-sex. The Supreme Court issued its dismissal of the case in one sentence citing that the issue did not involve the federal government.
The Baker case laid the grounds for more recent legal arguments, including the 2009 case Varnum v. Brein. The case was presented before the Iowa Supreme Court, which found that under the equal protection clause in the Constitution, same-sex marriage is a legal, constitutional right. The decision was unanimous in favor of legalizing same-sex marriage in the state of Iowa.
“The opinion reflects a carefully considered constitutional law decision from a state supreme court that has a long history of trying to do the right thing under the law, even if it is not consistent with what other states around it or the nation may be doing,” said Ann Estin, a professor at the Iowa College of Law in Iowa City.
The Iowa Supreme Court saw that marriage is not simply a social concept. Under the law, marriage changes tax status, custody, housing and more.
Iowa is the only state in the Midwest to allow same-sex couples to marry legally. Other states have developed provisions, such as domestic partnership registries and civil unions, to accommodate same-sex couples and provide them the same legal rights that come with marriage.
“We were created to make the state of Iowa more welcoming and accepting for gay and lesbian people,” said Troy Price, the executive director of One Iowa, a LGBT civil rights group. “We work to change hearts and minds.”
One Iowa’s goal is to protect and advance civil rights for the LGBT community in Iowa. Since the group’s founding in 2005, its members have worked to educate Iowans about the LGBT community and the benefits for same-sex couples in marriage legalization.
Price said that for the most part, especially after the Varnum decision, Iowans have responded positively to the One Iowa message.
“Iowans, historically, have always been a people who live and let live,” Price said. “We don’t really care what people are doing in their house. We don’t really mind the gay couple down the street.”
Price said when the Iowa Supreme Court first announced its opinion in Varnum people across the state were asking, “How can this be?” But, he says, as time has passed more people are changing their point of view about same-sex marriage.
“A lot of people just have that inherent prejudice to begin with and then they have a conversation with themselves and they talk to their friends and they talk with their neighbors about what this means,” Price said. “They think about the gay couple down the street and actually what this truly means for them.”
Despite the change in views across Iowa, same-sex couples and their supporters living in the state are not without their challenges. In 2010, three Iowa Supreme Court justices were denied retention in a state-wide ballot measure.
“We have had judicial retention since the mid-1960s and there have been four times previously where a judge, never a supreme court justice, has been removed. And it has always been for gross incompetence,” Price said.
The campaign promoting the removal of the justices was primarily financed by the FAMiLY LEADER, a pro-family organization led by president and CEO Bob Vander Plaats. The organization released a statement in December 2010 before its “Capturing Momentum Tour” to the 99-counties in Iowa.
In the news release, FAMiLY LEADER director of development, Matt Resetter said, “Now we have an even greater opportunity to harness that election momentum and see that conservative, constitutional, pro-family principles continue to be esteemed in our state for generations to come.”
Price explained when the vote occurred, many Iowans did not think the retention vote was a real threat, but after the actions of the FAMiLY LEADER, One Iowa and same-sex marriage supporters will not allow anything similar to happen again in Iowa.
Well, what about Kansas?
In April 2005, Kansas voters approved a constitutional amendment to ban same-sex marriage. A New York Times article, “In the Heartland and Out of the Closet,” documents the social changes in Kansas when the constitutional amendment was being considered.
The article discusses the choices gay and lesbian Kansans faced in 2005, especially for individuals and couples who were not open about their sexuality. The article said the choice between standing up against the constitutional amendment and staying secretive about their sexuality led many Kansans to come out to their friends and neighbors in a way to start a conversation about rights for same-sex couples.
At the time, their efforts were not enough. The constitutional amendment passed and the Kansas constitution now defines it as, “Marriage shall be constituted by one man and one woman only. All other marriages are declared to be contrary to the public policy of this state and are void.”
Despite the constitutional amendment, the number of same-sex couples in the state has grown. In the 2000 census, Kansas registered 21,411 male householders with children. In 2010 the number had grown by 34.4 percent to 28,773 householders. Ken and Evan Scheweda-Stoskopf and their children are in the 34.4 percent change.
A truly modern family
For Evan and Ken’s children, having two dads is not a big deal. The children are Ken’s from a previous marriage.
“I am good friends with my ex-wife and we still love each other,” Ken said. “We have three great kids we share.”
The children, Maddie, 13 years old, Tristen, 12 years old, and Hayley, 10 years old, split time between their dads’ house and their mom’s. The kids go to school in Baldwin City where their mom lives.
Maddie is a cheerleader at Baldwin High School and, like any high school girl, spends time on Facebook and hanging out with friends. Tristen spends his time playing football and baseball when he isn’t flirting with the young ladies. Hayley is the most out-spoken of the kids and she enjoys gymnastics, softball and art.
Evan and Ken have been open with the children about their sexuality and they credit television shows with gay characters such as “Glee” and “Modern Family,” for making it easier to talk about.
“Tristen was about six when he asked me, ‘Why don’t you like girls?’” Ken said. “I said, ‘Well, that’s just the way I was made.’ And Tristen just said, ‘Well, I don’t care, Dad.’”
Ken said he was surprised Tristen had an easy time accepting Ken as being gay. He said he believed it would be difficult for Tristen to accept him after growing up in a small, conservative town.
Evan and Ken said they really never talked about it in a formal way with the kids.
“It’s just there,” Evan said. “Just like my parents never talked about, ‘Oh, we’re straight.’”
“It’s our family,” Ken said. “We love each other and we want to be around each other.”
When politics enter the picture
In August, Republican presidential candidate Rick Perry joined fellow candidates Michele Bachmann, Mitt Romney and Rick Santorum in signing the National Organization for Marriage’s pledge to support a federal constitutional amendment to define marriage as between a man and a woman.
In a November interview with the Nashua Telegraph, Romney said, “I’m in favor of traditional marriage. I oppose same-sex marriage. At the same time, I don’t believe in discriminating in employment or opportunity for gay individuals. So I favor gay rights. I do not favor same-sex marriage.”
Evan follows national politics closely, especially same-sex couples rights issues.
“It hurts to see someone actively make a pledge to tear our family apart,” Evan said. “They want to divorce us.”
Currently, the federal Defense of Marriage Act, signed in 1996 by President Bill Clinton is still in effect. It defines marriage, in regards to any thing on the federal level, as a legal union between a man and a woman. It also says states are not required to recognize same-sex marriages performed in other states.
However, President Obama instructed the Justice Department in February to cease defending the section of the statute defining marriage. Several cases are pending in the district courts, as well as the federal court of appeals.
Following the federal action, the state of New York passed the Marriage Equality Act on July 24. Same-sex couples young and old flocked to the city to be married throughout the summer. On Dec. 1, a New York judge allowed a lawsuit seeking to void the act to proceed.
Today, the Ninth Circuit of Appeals in San Francisco, will hear two major motions in the case regarding Prop 8, a California measure from 2008 banning same-sex marriage in the state. In the 2010 case Perry v. Schwarzenegger, Prop 8 was overturned and ruled to be unconstitutional because it violated the Due Process and Equal Protection clauses of the 14th Amendment.
The Circuit of Appeals case is on track to be decided in early 2012. From there, the case could go to the United States Supreme Court. The court could set a precedent if it finds the ban unconstitutional, which would lift all bans against same-sex marriage as well as find DOMA to be unconstitutional.
Solicitor general McAllister said for same-sex couples in Kansas, the likelihood of the state constitutional ban being lifted is unlikely. Because the state’s voters ratified the amendment in 2005 through a ballot vote, the Kansas Supreme Court now has its hands tied. He said it will take a case being accepted into the U.S. Supreme Court and the opinion finding DOMA to be unconstitutional on a federal level to change the nation’s legal definition of marriage.
For Evan and Ken, they will continue to live and work in Kansas with their children. They are secure in the thought that as time goes on, the groups working against their marriage will grow smaller.
Edited by Alexandra Esposito