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In Iowa, Gay Marriage Illegal, Divorce OK

Iowa's Defense of Marriage Act (search) guarantees that marriage is between a man and a woman, but that didn't stop a state district court judge last month from granting a divorce to a lesbian couple joined in a Vermont civil union last year.

Now, a conservative family advocacy group has filed an appeal to the state Supreme Court to overturn the ruling, saying Judge Jeffrey A. Neary's Nov. 4 decision overstepped his judicial role, and he acted as a legislator in his ruling.

The Iowa Family Policy Center (search) — whose legal arm, the Iowa Liberty and Justice Center (search), filed the appeal on behalf of six Iowa lawmakers, a U.S. congressman and a church pastor — also claims that same-sex divorce can't exist if same-sex marriage doesn't.

"We're a pro-family organization that believes that marriage is between one man and one woman," IFPC President Chuck Hurley told Foxnews.com. "So when a Sioux City judge ruled that two women were married and could be divorced, we had two issues. One was judicial activism. The other was more specific. We don’t think that same-sex marriage or polygamy or pederasty is healthy for society or for the individuals in that situation."

“This situation paints a clear picture of why we need to rein in renegade judges legislating from the bench," said Republican U.S. Rep. Steve King, who joined the appeal. 

"Unless I’m mistaken, it was in Vermont, not Iowa, that Howard 'the Coward' Dean slyly signed midnight legislation making same sex unions legal. Unicorns, leprechauns, gay marriages in Iowa — these are all things you will never find because they just don’t exist.  But perhaps Judge Neary would grant divorces to unicorns and leprechauns too," King said in a statement.

Democratic presidential candidate Howard Dean (search), the former governor of Vermont, signed into a law a civil unions bill in April 2000. The measure does not provide all the same rights as marriage, but gives gay partners, among other things, the right to hospital visitation, health insurance coverage and the power of attorney to settle a partner's affairs after his or her death.

In reaction to the civil unions (search) legislation, 37 states passed Defense of Marriage Acts, which recognize unions as only those between a man and a woman. Four of those states — Alaska, Hawaii, Nebraska and Nevada — have included the language in their constitutions.

Lawmakers on Capitol Hill have been mulling for years whether to pass a federal Defense of Marriage Act. President Bush told a television interviewer earlier this week that he could be convinced to sign such a law.

"If necessary, I will support a constitutional amendment which would honor marriage between a man and a woman, codify that," he said.

The case in Iowa isn't the first of gay couples seeking divorce. A same-sex couple in Connecticut never received a divorce decree after an appellate court ruled that a civil union — even one in Vermont — is not the same as a marriage and therefore cannot be dissolved. Texas came to the same conclusion in a separate case.

Neary told the Sioux City Journal that he did not notice that the divorce was between two women until after he issued a dissolution decree. Reflecting on his decision, the judge said that had he known that the pair requesting a divorce were both women, he likely would not have changed his mind.

Hurley said he finds it hard to believe Neary didn't realize the divorce involved two women.

"Either he's lying or he's committed malfeasance," Hurley said, adding that each document in the file has the two litigants' names, Kimberly Jean Brown and Jennifer Sue Perez, clearly printed on it.

Hurley also suggested that Neary has a reputation in some circles as being a liberal activist. He said he is optimistic that ultimately ILJC will win the appeal.