Washington, D.C.—I’m sure you’ve heard by now about the Iowa judge who granted two lesbian women a divorce in Sioux City, Iowa.  Judge Jeffrey Neary, on November 14, 2003, granted a divorce to Kimberly Jean Brown and Jennifer Sue Perez.  These women had entered into a same sex “civil union” in Vermont.  On December 15th, 2003, pro-family people filed a lawsuit.  Only then, and on Christmas Eve, did Judge Neary revise his decree by substituting for “dissolution of marriage” the title “dissolution of Vermont Civil Union”. Neary thought this would solve the problem that he had created.  The new decree, however, changed the title but not the effect of his previous decision.  He had reaffirmed his first decree and had recognized and dissolved a relationship that does not exist under Iowa law.

Iowa does not recognize same-sex marriage or civil unions.  It is one of the basic tenets of law that you can’t dissolve that which you can’t recognize in the first place.  Neary granted a “dissolution of marriage” to a couple who was not married under the laws of any state.

Judge Neary claimed that he did not realize that these were two women petitioning him for a divorce.  Really?  Kimberly Jean and Jennifer Sue?  If he’s telling the truth, then it only stands to reason that he did not read even the title of the divorce petition. 

Neary also alleges that he was misled by the lawyer filing the suit.  If that is true, any reasonable judge would have vacated his decision the instant he discovered the true information and reported the attorney to the Bar to be disciplined for misrepresenting facts to the court.  Neary had ample opportunity to correct his “mistake,” but it was not until a legal action was filed against him that he issued a “correction.”  At that point, he did not vacate his decision and use actual Iowa law to settle any disputes between the parties.  Instead, he granted the women single status, thus legally recognizing civil unions in Iowa.

Neary is probably correct in placing part of the blame on Dennis Riggenberg, the attorney for the party seeking the divorce.  Ringgenberg used the words “married” or “marriage” eleven times in the 2 ½ page petition.  He also stated that the petition was “filed in good faith and for the purposes set forth herein.”  Finally, he served as the Notary Public for his client, Kimberly Brown, when she signed that she had read the petition, knew of the contents, and swore that “the statements and allegations therein contained are true and correct.”  Under the ethical rules of Neary’s profession, he was duty-bound to report this misrepresentation of the most material of all material facts in a divorce case, that the parties were already married.  To date, Neary has failed to do so.        

Judge Neary claims that the law forced him to issue the divorce/dissolution to these parties.  This argument is false on all fronts. 

First, Vermont law would not have allowed this dissolution of civil union.  The Vermont civil union statute says that dissolutions of civil unions are governed by that state’s marriage dissolution laws.  Vermont divorce statutes contain a residency requirement, mandating that at least one of the couple seeking a divorce must live in the state for six months before filing for divorce and a full year before the final dissolution.  Neither Kimberly Jean Brown nor Jennifer Sue Perez ever lived in Vermont.  How did an Iowa judge think he could grant this divorce of a Vermont civil union when the state that issued it would not have been able to?

Second, Neary claims protection under the Full Faith and Credit Clause of our Constitution.  The Defense of Marriage Act (DOMA), overwhelmingly passed through Congress and signed by President Clinton in 1996, specifically protects states from situations like this. DOMA defined marriage as “only a legal union between one man and one woman” and DOMA provided that no unwilling state can be required to recognize a same sex relationship granted by another state.  A Vermont Civil Union is, simply and legally, marriage by another name. The Defense of Marriage Act clearly addresses the fact that states do not have to recognize unions granted in other states, but Judge Neary continues to pretend that his hands were tied under the Full Faith and Credit Clause.

Finally, Neary seeks protection under the guise of property law, saying that the property owned in common by this couple had to be divided.  In reality, however, people who own property in common, from joint farm owners to roommates, part ways every day.  Courts simply partition the property instead of recognizing some mythical relationship.  Why, if Neary’s decision was based solely on property redistribution, did he not simply base that decision on simple property law, and partition the property?

The bottom line is that Iowa does not recognize same sex marriage or civil unions.  It is perhaps the simplest of all legal principles that one cannot end what one does not recognize to begin with.  To put it even more simply, you cannot get divorced if you were never married.  No other judge and no other state has set such a precedent.  If Neary’s decision is allowed to stand, we will see a long line of same sex couples, two by two, on their way from Vermont to Iowa to ask Judge Neary to break their bonds of union and we will see a long line of gays from Massachusetts where judge made law has already imposed same sex marriage on the people of Massachusetts. 

Judge Neary’s most recent tactic is to deflect attention from his poor judgment and direct it at those of us standing up for Iowa law.  He told the Des Moines Register, “It hurts … that folks would do that to you. … This has become personal.”  However, our disagreement with Judge Neary’s ruling is not personal.  This is not about whether Judge Neary is a good neighbor or friend.  It is about stopping the runaway judiciary from forcing same-sex marriage on Americans, on Iowans.  The eyes of the nation are upon us.  If his actions are allowed to stand without repercussion, other activist judges will be emboldened to do the same across America. 

In conclusion Judge Neary, even after he had forty days and forty nights to research his first decision, ruled in direct contradiction to Iowa law, federal law, and Vermont law.  Iowa voters must send a message to Judge Neary and other activist judges like him who seek to legislate from the bench:  Judge-made law cannot stand.  Iowans will not stand for rogue judges who trample traditional values, overrule the will of the people, and impose same-sex marriage on America by judicial decree.  We must go to the polls as a vanguard to defend marriage against an assault devoid of legal foundation.  However tolerant we want to be, we cannot tolerate this effort by the runaway judiciary to redefine marriage for all society.