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For immediate release -- Friday, April 3, 2009.
Contact Bob Brammer -- 515-281-6699, or rbrammer@ag.state.ia.us

Iowa Attorney General’s Office Statement on
Iowa Supreme Court Ruling that Same-Sex Marriage Ban is Unconstitutional

Friday, April 3, 2009

[Later updates added below.]

Comment from Attorney General Miller:

“The Court has issued a clear and well-reasoned opinion. I believe that the Supreme Court’s decision is right, based on Iowa Constitutional law principles regarding equal protection. It is noteworthy that the decision was unanimous.

“Our office is working with state and local government on practical questions of implementing the decision. As the decision itself noted, it takes effect in 21 days*, when procedendo issues, if there is no petition filed for rehearing.”

[*On April 7, the Supreme Court issued a clarification about the likely effective date, as follows: “In the case of Varnum v. Brien, the twenty-one day period ends on April 24 – a day that all court offices are closed because of budget cuts. Consequently, unless a petition for rehearing is filed in this case, the court will likely issue procedendo on Monday, April 27.]

The Attorney General’s Office has advised county recorders/registrars as follows on implementation of the Court’s decision:

The Iowa Supreme Court held today that the Iowa statute which limits civil marriage to a union between a man and a woman is unconstitutional. The Court ordered that the unconstitutional language of this statute –– Iowa Code section 595.2(1) –– must be stricken and the remaining statutory language interpreted and applied in a manner which allows gay and lesbian people “full access to the institution of civil marriage.”

The Court’s decision becomes effective upon issuance of a "procedendo", which is a separate order from the Court directing the district court to proceed to judgment. A procedendo will issue twenty-one days after the opinion is filed unless a petition for rehearing is filed. Hence, the Court’s ruling does not become effective today and county recorders/registrars may not accept and process marriage applications from same sex couples nor issue marriage licenses to same sex couples until such time as the procedendo issues. [The Court said April 7 that procedendo is likely to issue April 27 – see notes above and below.]

Upon issuance of the procedendo county recorders/registrars must issue marriage licenses to same sex couples in the same manner as licenses issued to opposite sex couples. In addition, the Iowa Department of Public Health is revising the marriage application, marriage license, and marriage certificate forms to be consistent with the Court’s order and those forms will be available from the Department prior to issuance of the procedendo.    [END]

UPDATE as of April 7, 2009

The Attorney General’s Office has provided additional guidance to County Recorders/Registrars regarding implementing the Iowa Supreme Court decision, Varnum v. Brien [Several of these questions also were addressed in April 27 update, below.]: 

Several questions have arisen regarding implementation of the recent Iowa Supreme Court decision which struck down as unconstitutional the Iowa statute limiting civil marriage to a union between a man and a woman.  The Court ordered that gay and lesbian persons be granted “full access to the institution of civil marriage.”  Following are several questions received by the Iowa Department of Public Health’s Bureau of Vital Statistics and their legal counsel from county recorders/registrars regarding implementing the decision:


When does the Court’s decision become effective?  The most likely effective date for the Varnum decision is Monday, April 27, 2009. 

The Court filed the Varnum decision on April 3, 2009.  The Court’s decision expressly states that the decision becomes effective upon issuance of a “procedendo,” which is a separate order from the Court directing the district court to proceed to judgment.  A procedendo typically issues twenty-one days after the opinion is filed unless a petition for rehearing is filed.  The specific language in the Court’s rules provides as follows:

Unless otherwise ordered by the supreme court, no procedendo shall issue for:  a) twenty-one days after an opinion of the supreme court is filed, nor thereafter while a petition for rehearing or an application for extension of time to file a petition for rehearing, filed according to these rules, is pending.  (Rule Appellate Procedure 6.1208(1)”a”).

Thus, absent another order of the court, the procedendo will not issue prior to April 24, 2009.  The Court indicated today (April 7) that due to court offices being closed on April 24th because of budget cuts, the Court “will likely issue procedendo on Monday April 27, 2009.”  The Polk County Attorney has indicated he will not file a petition for rehearing; hence, the most likely effective date of the Varnum decision is Monday April 27, 2009. 

The effective date could be earlier only if the Court expressly orders an earlier effective date – which seems unlikely given its statements April 7 – or the effective date could be after April 27, 2009, if the Polk County Attorney decides to file a petition for rehearing or the Court does not issue the procedendo on that date for other reasons.

 

Can a county recorder/registrar process applications and issue marriage licenses prior to the effective date?  No.  County registrars may not process applications nor issue marriage licenses to same sex couples prior to the effective date of the decision.  Counties may choose to decline to receive applications filed by same sex couples prior to the effective date, or to hold such applications for processing on the effective date.  County registrars should consult with their county attorneys in making this determination.

 

Does the three-day waiting period apply to applications filed by same sex couples?  Yes.  Iowa law requires a three-day waiting period prior to a marriage license becoming valid:

“Upon receipt of a verified application, the county registrar may issue the license which shall not become valid until the expiration of three days after the date of issuance of the license.”   (Iowa Code section 595.4)

Nothing in the Court’s decision waives this three-day waiting period.  Accordingly, if the decision becomes effective April 27, 2009, a county recorder may accept receipt of verified applications and issue licenses on that date; such licenses would not become valid under the statute until Thursday April 30, 2009.

 

Can the three-day waiting period be waived pursuant to a judicial order?   Yes, in the same manner as such waiting period is waived for opposite gender parties.  Iowa Code section 595.4 provides as follows:

A license to marry may be validated prior to the expiration of three days from the date of issuance of the license in 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 registrar.  No order may be granted unless the parties have filed an application for a marriage license in a county within the judicial district.  An application for an order shall be made on forms furnished by the county registrar at the same time the application for the license to marry is made.  After examining the application for the marriage license and issuing the license, the county registrar shall refer the parties to a judge of the district court for action on the application for an order authorizing the validation of a marriage license prior to expiration of three days from the date of issuance of the license.  The judge shall, if satisfied as to the existence of an emergency or extraordinary circumstances, grant an order authorizing the validation of a marriage license prior to the expiration of three days from the date of issuance of the license to marry.  The county registrar shall validate a license to marry upon presentation by the parties of the order authorizing a license to be validated.  A fee of five dollars shall be paid to the county registrar at the time the application for the order is made, which fee is in addition to the fee prescribed by law for the issuance of a marriage license.

A county registrar should furnish the forms in the same manner as in opposite gender applications and should review and process a judicial order authorizing the license to be validated prior to the expiration of the three day waiting period in the same manner as in opposite gender applications. 

A county registrar should not provide applicants with the “Application for Waiver of the 3-Day Waiting Period” prior to the effective date of the decision.

 

Which forms should be used for same sex applications?   The Iowa Department of Public Health has revised the marriage application form, the marriage license, and the marriage certificate, to be consistent with the Court’s decision.  Those forms will be emailed to all county recorders as attachments as soon as they are finalized.  These forms should be utilized for both same sex and opposite sex marriage applications.  [Update as of April 10, 2009: It was hoped the revised forms would be ready to circulate by April 10, but now it is anticipated the revised forms will be available and emailed to county recorders by April 17, along with complete and thorough instructions for county recorders regarding use of the forms.]

Counties should not reject applications made on the prior forms.

  

Can a county registrar lawfully refuse to issue a marriage license to a same sex couple who satisfy the requirements for marriage in Iowa?  No. [END]


UPDATE April 16, 2009

The Attorney General’s Office provided the following guidance (via the Iowa Dept. of Public Health) to County Recorders:

Does the Varnum v. Brien Supreme Court ruling apply statewide? Yes.

The Department of Public Health has received a telephone call from one county recorder who questions whether the Iowa Supreme Court’s decision in Varnum v. Brien applies to all counties, or only to Polk County. The county recorder stated the belief that the Varnum decision applies only in Polk County and indicated that in their opinion the decision does not change state law.

To the contrary, the Supreme Court’s decision in Varnum does change state law: the decision expressly strikes from Iowa Code chapter 595 the language which limits civil marriage to a man and a woman and orders that “the remaining statutory language must be interpreted and applied in a manner allowing gay and lesbian people full access to the institution of civil marriage.” Varnum at p. 68. It is a basic and fundamental tenet of our legal system that a decision of the Supreme Court of our state declaring a state law to be unconstitutional operates state-wide to bind not just the parties, but all who are governed by the law within the state’s borders. See Iowa Code section 602.4102; State v. Harris, 741 N.W.2d 1, 9 –– 10 (Iowa 2007) (supreme court opinions are binding on all Iowa courts upon filing of the decision).

All county recorders in the state of Iowa are required to comply with the Varnum decision (following issuance of procedendo from the Supreme Court) and to issue marriage licenses to same sex couples in the same manner as licenses issued to opposite gender applicants.

END

 

UPDATE April 21, 2009

Attorney General Tom Miller statement: County Recorders must comply with Supreme Court Varnum decision:

We expect duly-elected county recorders to comply with the Iowa Constitution as interpreted unanimously by the Iowa Supreme Court, the highest court in Iowa. Our country lives by and thrives by the rule of law, and the rule of law means we all follow the law as interpreted by our courts -- not by ourselves. We don’t each get to decide what the law is; that would lead to chaos. We must live by and follow what the courts decide.

Iowa’s recent Supreme Court ruling concluded: “The language in Iowa Code section 595.2 limiting civil marriage to a man and a woman must be stricken from the statute, and the remaining statutory language must be interpreted and applied in a manner allowing gay and lesbian people full access to the institution of civil marriage.”

The Court’s ruling applies everywhere in Iowa, in every county. Recorders do not have discretion or power to ignore the Iowa Supreme Court’s ruling.

As we have advised recorders for several days: All county recorders in the state of Iowa are required to comply with the Varnum decision following issuance of procedendo from the Supreme Court, and to issue marriage licenses to same sex couples in the same manner as licenses issued to opposite gender applicants.

If necessary, we will explore legal actions to enforce and implement the Court’s ruling, working with the Iowa Dept. of Public Health and county attorneys.

END

 

UPDATE April 27, 2009

The Attorney General’s Office issued a “Q&A” late Friday, April 24, for all county recorders, via the Iowa Department of Public Health. 

(The memo and Q&A address several questions regarding implementation of the Supreme Court Varnum decision.  Some of the topics have been addressed earlier, and are very similar to Q&As posted above; others follow that are new topics addressed by this memo.) 

Memorandum from Asst. Attorney General Heather Adams to Tom Newton, State Registrar and Director of the Iowa Dept. of Public Health, and Jill France, Deputy State Registrar, April 24, 2009:

As you know, several questions have arisen regarding implementation of the recent Iowa Supreme Court decision which struck down as unconstitutional the Iowa statute limiting marriage to a union between a man and a woman.  The Court ordered that gay and lesbian persons be granted “full access to the institution of civil marriage.”  The following is a list of questions received by the Iowa Department of Public Health’s Bureau of Health Statistics and the Attorney General’s Office from county recorders/registrars and county attorneys regarding implementing the decision.  The State Registrar has the statutory duty to administer and enforce Iowa Code chapter 144 and to “issue instructions for the efficient administration” of the vital records system; to “direct, supervise, and control” the activities of county recorders related to the operation of the vital statistics system; and to prescribe and distribute the forms required by chapter 144.  (Iowa Code section 144.5). 

Pursuant to this authority, you may distribute the attached questions and answers to county recorders.  Counties have already received the questions and answers for the first nine questions (although there have been some revisions to these answers based on updated information); questions and answers 10 - 16 are new.  I thought it might be helpful for you and for the counties to have all the questions and answers in one document for ease of reference.

 

QUESTIONS ARISING UNDER VARNUM V. BRIEN

Prepared by Heather L. Adams, Assistant Attorney General
Legal Counsel to the Department of Public Health and the State Registrar

1.  When does the Iowa Supreme Court’s decision in Varnum v. Brien become effective?  The most likely effective date for the Varnum decision is Monday April 27, 2009. 

The Court filed the Varnum decision on April 3, 2009.  The Court’s decision expressly states that the decision becomes effective upon issuance of a procedendo, which is a separate order from the Court directing the district court to proceed to judgment.  A procedendo typically issues twenty-one days after the opinion is filed unless a petition for rehearing is filed.  The specific language in the Court’s rules provides as follows:

Unless otherwise ordered by the supreme court, no procedendo shall issue for:  a) twenty-one days after an opinion of the supreme court is filed, nor thereafter while a petition for rehearing or an application for extension of time to file a petition for rehearing, filed according to these rules, is pending.  (Rule Appellate Procedure 6.1208(1)”a”).

Thus, absent another order of the Court, the procedendo will not issue prior to April 24, 2009.  The Court has indicated that due to court offices being closed on April 24th because of budget cuts, the Court “will likely issue procedendo on Monday April 27, 2009.”  The Polk County Attorney has indicated he will not file a petition for rehearing, and hence the most likely effective date of the Varnum decision is Monday April 27, 2009. 

The effective date could be earlier only if the Court expressly orders an earlier effective date – which seems unlikely given its statements – or the effective date could be after April 27, 2009, if the Polk County Attorney decides to file a petition for rehearing or the Court does not issue the procedendo on that date for other reasons.

2.  Can a county recorder/registrar process applications and issue marriage licenses prior to the effective date?  No.  County registrars may not process applications nor issue marriage licenses to same sex couples prior to the effective date of the decision.  Counties may choose to decline applications filed by same sex couples prior to the effective date, or to hold such applications for processing on the effective date.  County registrars should consult with their county attorneys in making this determination.

3.  Does the three-day waiting period apply to applications filed by same sex couples?  Yes.  Iowa law requires a three-day waiting period prior to a marriage license becoming valid:

“Upon receipt of a verified application, the county registrar may issue the license which shall not become valid until the expiration of three days after the date of issuance of the license.”   (Iowa Code section 595.4)

Nothing in the Court’s decision waives this three-day waiting period.  Accordingly, if the decision becomes effective April 27, 2009, a county recorder may accept receipt of verified applications and issue licenses on that date; such licenses would not become valid under the statute until Thursday April 30, 2009.

4.  Can the three-day waiting period be waived pursuant to a judicial order?   Yes, in the same manner as such waiting period is waived for opposite gender parties.  Iowa Code section 595.4 provides as follows:

A license to marry may be validated prior to the expiration of three days from the date of issuance of the license in 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 registrar.  No order may be granted unless the parties have filed an application for a marriage license in a county within the judicial district.  An application for an order shall be made on forms furnished by the county registrar at the same time the application for the license to marry is made.  After examining the application for the marriage license and issuing the license, the county registrar shall refer the parties to a judge of the district court for action on the application for an order authorizing the validation of a marriage license prior to expiration of three days from the date of issuance of the license.  The judge shall, if satisfied as to the existence of an emergency or extraordinary circumstances, grant an order authorizing the validation of a marriage license prior to the expiration of three days from the date of issuance of the license to marry.  The county registrar shall validate a license to marry upon presentation by the parties of the order authorizing a license to be validated.  A fee of five dollars shall be paid to the county registrar at the time the application for the order is made, which fee is in addition to the fee prescribed by law for the issuance of a marriage license.

A county registrar should furnish the forms in the same manner as in opposite gender applications and should review and process a judicial order authorizing the license to be validated prior to the expiration of the three day waiting period in the same manner as in opposite gender applications. 

A county registrar should not provide applicants with the “Application for Waiver of the 3-Day Waiting Period” prior to the effective date of the decision.

5.  Which forms should be used for same sex applications?   The Iowa Department of Public Health has revised the marriage application form and the marriage certificate to be consistent with the Court’s decision.  Those forms were emailed to all county recorders as attachments on Friday April 17, 2009.  The revised forms should be utilized for both same sex and opposite sex marriage applications on and after the date the procedendo issues. 

Counties should not reject applications made on the prior forms.

6.  Are marriage applications from same sex couples public or confidential? Marriage applications from same sex couples should be treated in the same manner as marriage applications from opposite gender couples for purposes of public records requests.  Iowa law provides that “a record of marriage” may be inspected under Iowa code chapter 22 when it is in the custody of a county registrar.  (Iowa Code sections 144.43, 144.11).  County registrars are required to “keep a record book for marriages.  The form of marriage record books shall be uniform throughout the state.  A properly indexed permanent record of marriage certificates upon microfilm, electronic computer, or data processing equipment may be kept in lieu of marriage record books.”  (Iowa Code section 144.36(1)).  A record of marriage includes “the compilation of those entries contained in the docket books reflecting the recording of the marriage event, including the certificate of marriage but excluding all entries indicating “confidential information, for statistical purposes only, or otherwise indicated as confidential or statistical in nature on the face of the record.”   (641 IAC 96.1).  With respect to the application, the law requires the county registrar file the application “in a record kept for that purpose and shall take all necessary steps to ensure the confidentiality of the social security number of each applicant.”  (Iowa Code section 595.4).  Taken together, these laws indicate that the “Application of Marriage” and the “Certificate of Marriage” are public documents once the certificate is filed by the county registrar.  

We have not previously addressed the issue of whether the marriage application is public prior to the filing of the marriage certificate.  Chapter 595 requires the county recorder to file the application in a record kept for that purpose and to ensure the confidentiality of the social security numbers contained on the application.  (Iowa Code section 595.4).  There is no provision in Chapter 595 or elsewhere in Iowa law which authorizes the counties to treat the entire marriage application as confidential.  In the absence of express authority to retain the marriage application as a confidential record, it is a public record subject to inspection once the parties file the application with the county.  Counties should redact the social security number of applicants and provide the marriage application for public inspection upon request.  (Iowa Code chapter 22) 

We recognize that the county – not the state -- is the custodian of marriage applications records, and that some county attorneys have advised that the application does not become available for inspection until the marriage certificate is filed.  For this reason, the Attorney General’s Office will be issuing a more detailed analysis and opinion on April 27th to provide county recorders and county attorneys with additional guidance on this issue.  [Go to April 27 AG Office letter to Iowa Dept. of Public Health re marriage applications.]

On a related matter, we have received questions regarding how county recorders should respond if they receive a request to inspect marriage applications or certificates which the recorder reasonably believes is motivated by a desire to harm or embarrass the applicants. Under the open records law, recorders are not authorized to inquire about the purpose for the request to inspect marriage applications/certificates or any other public record. But, if a county recorder has personal knowledge that a requestor intends to harm or harass a marriage applicant, the recorder may report the matter to their local law enforcement agency or may encourage the applicants to do the same.  In appropriate cases, the county recorder may defer allowing access to the record and provide notice to an applicant that the record has been requested.  The law allows a "good faith, reasonable delay" not to exceed twenty calendar days to allow the applicant an opportunity to petition the district court for an injunction to restrain examination of their marriage records under Iowa Code section 22.8.  Finally, recorders should note that the application and certificate no longer request or include the street address of the applicants.

7.  Should a county registrar accept a marriage application from three or more persons?  No.  Iowa Code chapter 595 clearly defines marriage as a civil contract between two parties, and nothing in the Varnum decision alters that definition. 

8.  Can a county registrar lawfully refuse to issue a marriage license to a same sex couple who satisfy the requirements for marriage in Iowa?  No.  (see question 10 below regarding enforcement)

9.  Does the Varnum decision apply state-wide, or only in Polk County?   The Supreme Court’s decision in Varnum applies state-wide, not just in Polk County.  Varnum expressly strikes from Iowa Code chapter 595 the language which limits civil marriage to a man and a woman and orders that “the remaining statutory language must be interpreted and applied in a manner allowing gay and lesbian people full access to the institution of civil marriage.”  Varnum v. Brien, 2009 WL 874044 at * 30.  It is a basic and fundamental tenet of our legal system that a decision of the Supreme Court of our state declaring a state law to be unconstitutional operates state-wide to bind not just the parties, but all who are governed by the law within the state’s borders.  See Iowa Code section 602.4102; State v. Harris, 741 N.W.2d 1, 9 – 10 (Iowa 2007) (supreme court opinions are binding on all Iowa courts upon filing of the decision); Constitution of the State of Iowa, Article XII Section 1 (the constitution is the supreme law of the state and any law inconsistent therewith shall be void) and Section 2.

All county recorders in the state of Iowa are required to comply with the Varnum decision (following issuance of procedendo from the Supreme Court) and to issue marriage licenses to same sex couples in the same manner as licenses issued to opposite gender applicants.

10.  What are possible consequences if a county recorder refuses to issue a marriage license to a same sex couple?  The Department of Public Health has provided information to all county recorders regarding the Varnum decision and the implementation of this decision.  The Department believes that Iowa’s county recorders will follow the law and that enforcement actions will not be necessary.
There are, however, several possible consequences if a county recorder refuses to issue a marriage license to a same sex couple.  First, the Department of Public Health can request that the Attorney General’s Office assist in the enforcement of the provisions of chapter 144.  (Iowa Code section 144.55).  The Department could request the assistance of the Attorney General’s Office in bringing a mandamus enforcement action against a county recorder who refuses to issue marriage licenses to same sex couples.  Second, if a county recorder willfully violates chapter 144 or refuses to perform any of the duties imposed upon the recorder by the chapter they could be charged with a simple misdemeanor.  (Iowa Code sections 144.53, 144.54).  Finally, in cases of repeated and willful violations of chapter 144, a county recorder could be subject to removal from office for refusing to issue a marriage license to a same sex couple.  (Iowa Code section 66.1A (elected officers may be removed from office by the district court for refusal to perform the duties of office)). 
The Department intends to fulfill its statutory duty to direct, supervise, and control the activities of county recorders through education and assistance in addressing these issues, and does not expect that any county recorder will unlawfully refuse to issue a marriage license to a same sex couple.  The Department does not anticipate that any of the above enforcement measures will be necessary in our state.

11.  The Code refers to two methods of obtaining the marriage application – in person and by mail.  Are other methods acceptable?  Yes.  Iowa Code section 595.4 provides that the marriage application “either may be mailed to the parties at their request or may be signed by them at the office of the county registrar in the county in which the license is to be issued.”  It is our understanding that many counties post the marriage application forms on their websites and that other methods of distributing the applications are utilized as well.

This code section grants counties the authority to distribute applications in the two manners provided, but does not dictate that those methods are the exclusive means of distributing the applications.  (Iowa Code section 4.1(30)).

12.  If a witness or the applicants sign the forms before the procedendo issues is the application acceptable? The application to marry in Iowa requires the parties to sign in front of a notary public and indicate that the parties are who they purport to be.  The application also requires that a “competent and disinterested person” sign the affidavit listed on the application, which requires the person to affirm in part as follows:  “I further depose and say that they are both unmarried and capable of entering into any civil contract, that there is no legal disability to the marriage of said parties, and that their marriage is to be solemnized in the State of Iowa.”

County recorders should process all properly completed applications from same sex couples which are signed and dated on or after April 3, 2009 --  the date the Supreme Court struck as unconstitutional the opposite gender requirement in the law and removed the legal impediment to same sex marriage by so doing. However, same sex couples who are concerned about whether their applications are valid if signed and dated prior to April 27th should either submit a new application on or after April 27th or consult with private legal counsel about the status of their application. 

13.  Should a county recorder accept an application from a same sex couple on the old forms?  Yes.  The Department has issued the revised forms and counties should encourage applicants to use the new forms after the procedendo issues.  However, county recorders should continue to issue marriage licenses to couples which submit their application on the old forms. 

14.  Are applicants required to complete the bride/groom/spouse and gender sections on the new forms?  No.  As stated on the forms and in the State of Iowa Marriage Instructions, there are two optional sections on the Application to Marry in Iowa.  The first allows each party to the marriage the option of designating a title –bride, groom, or spouse – to be included on the Certificate of Marriage.  If applicants want to be referred to as either a bride, groom, or spouse on their Certificate of Marriage, they should check the box in front of their preferred designation.  If applicants do not want to be referred to as bride, groom, or spouse, then they should not check any of the boxes and none of those titles will be designated on their Certificate of Marriage. 

The second optional section is gender.  Gender is collected for statistical purposes so that accurate data regarding marriages performed in Iowa can be maintained.  Applicants wanting to provide gender should indicate “male” or “female” following “gender” on the Application to Marry in Iowa form.  Applicants who do not want to provide gender should not fill out the gender section on the application and their gender will not be indicated on their Certificate of Marriage.

If a couple has questions regarding completion of these optional sections, they should be directed to the State of Iowa Marriage Instructions.  County recorders should process the application and issue the license regardless of how or whether these optional sections are completed.

15.  How should an applicant who has same-sex parents complete the “parents” section on the application?  The current version of the application and certificate refer to the “father” and “mother” of the applicant.  An applicant who has same sex parents should indicate the “full name prior to any marriage” of both parents on the application. For example, an applicant who has two female parents should indicate both women’s full name prior to any marriage.

The Department anticipates that this section of the application may be revised in the future when the Department completes a revision of birth certificates and forms. 

16.  Does a county recorder have to personally receive the procedendo on April 27th to begin processing applications?  No.  Once the procedendo issues from the Supreme Court, the Varnum decision is effective and counties can and must begin processing applications from same sex couples.  The Department will be monitoring this issue closely on April 27th and will immediately email all county recorders following issuance of the procedendo.  We plan to include a PDF copy of the procedendo with that email.  County recorders must wait until procedendo is issued prior to processing applications.

Additional guidance and direction.  In addition to the above, county recorders are encouraged to review the statement from Iowa Attorney General Tom Miller issued on April 21, 2009. [See statement above.]

END

UPDATE April 30, 2009

Attorney General Tom Miller and Iowa Dept. of Public Health Director Tom Newton sent a letter April 30 to all County Recorders commending them for their “utmost courtesy and professionalism” in implementing the Supreme Court’s Varnum decision.

[Go to Miller/Newton letter to Recorders.]

Text of the letter:

To All Iowa County Recorders:

Re: Implementing Varnum v. Brien

We are writing to express our appreciation and thanks for the professional way that County Recorders around the state responded to the requirements of state law in issuing marriage licenses starting last Monday. By all accounts, you responded to an increased work load and a heightened level of public scrutiny with the utmost professionalism and courtesy for people and groups on both sides of this issue.

Our state and nation depend upon the rule of law, as you know so well. The Iowa Supreme Court’s Varnum decision is now the law of the state, and it is our duty –– yours and ours –– to enforce and implement the law. We know that some County Recorders hold strong personal opinions regarding the Varnum decision –– some supportive of its outcome and others firmly opposed to its holding –– and we appreciate that all Recorders were able to separate their personal feelings from their sworn duties.

Our offices did our very best to provide you with clear and accurate advice regarding implementing the Court’s decision, and we will strive to continue to do so. Please do not hesitate to contact the Iowa Department of Public Health if you have further questions.

Again, thank you for your professionalism and your public service to the people of Iowa.

With best regards,

Thomas J. Miller, Attorney General of Iowa
Tom Newton, Director, Iowa Department of Public Health