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Symposium addresses 'Same-Sex Marriage Divide'

June 14, 2010
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Experts discuss same-sex marriage before the symposium.

Some of the most prominent North American experts came together to debate both sides of the same-sex marriage issue at the Drake Law School Constitutional Law Center's annual symposium on April 10.

At the symposium, the experts discussed the 2009 Iowa Supreme Court's decision to legalize same-sex marriage and other related issues. Their papers will be published in a forthcoming edition of the Drake Law Review.

"After the event, symposium speakers met at the airport for lunch and continued their discussion," said Law School Dean Allan Vestal. "That is a testament to the fact that it was a constructive conversation with a real diversity of views."

An overflow crowd filled the Law School's largest classroom and another 40 people watched the proceedings in a room with a live video feed.

The symposium also attracted the attention of the conservative Westboro Baptist Church, which protested the event on the south side of University Avenue across from Old Main.

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A Drake student holds a "No Hate at Drake" sign during the counter-protest.

Hundreds of Drake students and Des Moines community members held a
large and peaceful counter-protest. Read more about the counter-protest online.

Meanwhile back at the Law School, the symposium's initial panel
focused on the broad question of whether same-sex marriage should be
legal. The first speaker was Maggie Gallagher, president of the
Institute for Marriage and Public Policy in Washington, D.C.  

Gallagher argued that most Americans disapprove of same-sex
marriage and that heterosexual marriage is a deeply embedded, yet
fragile social institution. It keeps fathers bound to mothers, through
their biological children in many cases, and this deters males from
being more promiscuous, Gallagher said.

The response to Gallagher was offered by Andrew Koppelman, the John
Paul Stevens professor of law and professor of political science at
Northwestern University. He argued that same-sex marriage provides
important benefits to the new kinds of families that exist in the
United States as well as to the society as a whole.

Koppelman pointed out that research on marriage in more traditional
"red states" and in more liberal "blue states" shows plenty of failed
marriages, examples of promiscuity and falling fertility rates in "red
states." Koppelman also pointed out that no evidence shows that
same-sex couples undermined heterosexual marriage or did a lesser job
of raising children.

The next panel focused on the constitutionality of the Federal
Defense of Marriage Act (DOMA), which bans the national government from
recognizing same-sex marriage and authorizes any state not to recognize
another state's same-sex marriage.  

Mark Strasser, the Trustees professor of law at Capital University
Law School, said that DOMA is unconstitutional because it displaces
traditional state authority over family law issues.  Moreover, DOMA
modifies the accepted legal principle that each state must recognize
the legal acts of other states.

The response to Strasser was offered by Lynn Wardle, the Bruce C.
Hafen professor of law at Brigham Young University Law School. Wardle
argued that moral issues like this were for the people to decide
through their representatives, who enacted DOMA. In addition, Wardle
said lawsuits brought against federal DOMA have failed so far.

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Panelists gather for a group photo after the debate.

The last panel was on the economics of same-sex marriage. The first
speaker was Lee Badgett, director of the Center for Public Policy and
Administration and professor of economics at the University of

Badgett said that empirical research revealed that same-sex couples
are remarkably similar to opposite-sex couples in terms of need for
benefits, numbers of children, need for security, stability, etc. She
said civil unions are insufficient and often result in second-class

The response came from Douglas Allen, the Burnaby Mountain
professor of economics at the Simon Fraser University in Vancouver,
Canada. Allen examined different kinds of possible marital
relationships, and their purposes, to try to assess their costs and
benefits. He emphasized the importance of fertility and biological
reproduction and said it was hard to justify same-sex marriage under
such a valuation assessment.  

Moderators of the program were Mark Kende and Ian Bartrum. Kende is
the James Madison chair professor of constitutional law and director of
the Drake Constitutional Law Center. Bartrum is an assistant professor
of law at Drake. Kende organized the event through the Drake
Constitutional Law Center. Support also came from the law firm of
Belin, McCormick P.C. and the Drake Law School.