More same-sex marriage issues emerge

DES MOINES – A state senator who opposes same-sex marriages Wednesday accused Iowa Attorney General Tom Miller's office of selectively pressuring some county officials to enforce some legal directives but not others.

Sen. Merlin Bartz, R-Grafton, said the AG's office has issued a “veiled threat” to county recorders that they must issue marriage licenses to same-sex couples next week or risk removal for failing to abide by their oaths of office. But Miller's office has taken a more relaxed view toward county attorneys or sheriffs who have not aggressively enforced Iowa's smoke-free workplace law, immigration violations or other statutes.

“It seems ironic and hypocritical,” Bartz said. “I think the key here is that the attorney general, in my estimation, is seemingly very selective when they issue a veiled threat to county recorders that they're going to remove them from office, but I don't think they've threatened to remove county prosecutors from office who aren't prosecuting other kinds of statutes that may be being broken across the state.”

Meanwhile Wednesday, former state Rep. Ed Fallon, a Des Moines Democrat who also ran unsuccessful bids for governor and Congress, said he filed a complaint against Bartz with the Senate Ethics Committee for encouraging Iowans to pressure county recorders to break the law when same-sex couples begin applying for marriage licenses next week.

Fallon said he brought the action after Bartz drafted a petition asking opponents of gay marriage to collect signatures and deliver them to county recorders next Monday asking them to ignore the Iowa Supreme Court's April 3 decision that legalized same-sex marriage and deny marriage licenses to couples of the same gender.

“For a state senator to use his office and public resources to encourage other elected officials to disobey a unanimous ruling of the Iowa Supreme Court is unconscionable, and possibly a violation of state law,” Fallon said in a statement.

Bartz declined comment until he had a chance to read the complaint Fallon said he filed with Senate President Jack Kibbie, D-Emmetsburg, chairman of the six-member bipartisan Senate Ethics Committee.

“You've got to be kidding. It sounds like a political maneuver,” said Senate GOP Leader Paul McKinley of Chariton, an ethics committee member.

Bob Brammer, spokesman for the Iowa Attorney General's Office, responded to Bartz's charge of selectivity by pointing out that county attorneys have discretion about enforcement decisions and priorities while county recorders “have no discretion” in fulfilling their statutory duties.

“We have advised recorders, through the Iowa Department of Public Health, that recorders do not have discretion or power to ignore the Iowa Supreme Court ruling, and that they must handle marriage licenses for same-sex couples in the same manner as they handle licenses for opposite-gender applicants,” Brammer said in a statement.

“This is a matter of the rule of law as interpreted and determined by Iowa's highest court,” he added.

In the case of county attorneys who have declined to enforce Iowa's anti-smoking law, Brammer said the AG's office has urged prosecutors to use their discretion to enforce the statute but ultimately that is up to the discretion and priority choices of elected county attorneys.

Bartz said he consulted the Iowa code and found no such discretion for county attorneys, noting the wording states that they "shall diligently enforce" the laws of Iowa.

The GOP senator also said he talked with a county recorder who worried that the officeholders not only faced the threat of removal for noncompliance but possible retaliation via an effort to do away with the county office altogether depending on how the marriage issue plays out.

The state senator said he views the current status of Iowa marriage law “in flux” because the voters and their elected representatives have been unable to weigh in on a major social policy that was uprooted when seven justices decided a state law defining marriage as only between one man and one woman was unconstitutional.

“I think it's ironic that for some reason that this has been the law where the attorney general says we're going to remove elected office holders,” Bartz said. “I probably agree there are consequences, but I guess we don't really know what those consequences are in this particular case at this particular time.”

In a related development, the Alliance Defense Fund and the Iowa Family Policy Center announced Wednesday they plan to offer free legal defense by ADF attorneys to county recorder offices that adopt a policy protecting employee rights of conscience.

Such a policy would protect objecting employees from being forced to issue marriage licenses to same-sex couples if doing so would violate the employee's conscience, said ADF Senior Legal Counsel Doug Napier.

“Government employees who believe in marriage as the union of one man and one woman should not be penalized for abiding by their beliefs,” Napier said.