A county judge approved a divorce for a lesbian couple who obtained a civil union in Vermont, saying he didn't realize he was signing a settlement for a same-sex couple, but ultimately decided to let his decision stand.
Iowa is one of 37 states whose law bans same-sex marriage (search).
State Sen. Neal Schuerer accused Judge Jeffrey Neary on Thursday of "judicial activism at its worst."
"The judge was wrong. He should have backed away and sent them back to Vermont," said Schuerer, a Republican. "If judges want to flaunt the law like this, I can guarantee you we will move to recall them."
Neary, a district judge for Woodbury County, said he routinely signs divorces and doesn't check the participants' gender. When he discovered what had happened last month, said he confronted Dennis Ringgenberg, attorney for one of the women.
"I said this is probably going to be a controversial matter at some point in time," Neary said, "and he smiled and said, 'You're right."'
Neary, who was appointed in January by Gov. Tom Vilsack (search), said he had the opportunity to change his mind but decided against it — the divorce was permissible, he said, under a constitutional clause that requires states to recognize laws of other states.
"If I'm presented with a dispute that has to be resolved in my courtroom, or is before me that affects the rights of Iowans, I feel an obligation to solve that problem," Neary said. "I don't believe I'm recognizing same-sex marriage."
The women, Kimberly Brown, 31, and Jennifer S. Perez, 26, who have Sioux City (search) addresses, were joined in a civil union March 25, 2002, in Bolton, Vt.
Judges in Texas and Connecticut have rejected requests for civil union divorces, said University of Iowa law professor Ann Estin.
"You can go to Vermont and have a civil union, but you can't, until now, go to another state and have a civil union divorce," she said.
Daniel Bray, an Iowa City lawyer and chairman of the Family Law Section of the Iowa State Bar Association, said the law is clear that marriage can only exist between a man and woman in Iowa.
"A divorce can be entered only when there is a valid marriage," he said.
At the same time, Bray said, Neary acted appropriately — in this case, he signed a settled agreement, and it wasn't incumbent upon him to determine the participants' gender.
"There are no floodgates being opened here. The issue here is that our law must constantly adapt to change in the family. Iowa has been a forerunner in making legal adaptations to legal challenges involving the family. "