Iowa Attorney General Tom Miller

Iowa Attorney General Tom Miller is warning the county recorders' offices in his state that workers must process "marriage" licenses for same-sex duos or face possible charges in a court of law.

"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," he warned on his website.

But an announcement today from a statewide pro-family organization and a public interest law firm with a reach that goes around the world means the issue of same-sex weddings eventually could end up back in court.

The statements from Miller relate to the state Supreme Court's decision that Iowa must provide same-sex couples access to the state's marriage processes. The change is being implemented by state officials even though the court's responsibility is to interpret the law only, while the legislature, which makes the law, has not acted on the issue.

Miller praised the decision as "clear and well-reasoned" and explained it is expected to take effect April 27, since court offices are closed tomorrow.

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In a series of messages on his website, he first "advised" recorders and registrars to provide "full access" to marriage.

Then he instructed: "A county registrar should furnish the forms in the same manner as in opposite gender applications."

"The Supreme Court's decision … 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," he ordered.

Then came the warning that "legal actions" could be pursued.

"We must live by and follow what the courts decide," he said.

However, a letter sent to county recorders by the Alliance Defense Fund says Miller is forgetting completely about "one of the most foundational rights and liberties we enjoy as Iowans" … "the right of conscience."

That right, the letter says, is codified in Iowa Code 146.1.

"This right is based upon the simple truth that it is wrong to force anyone to violate his or her conscience," said the letter, also from the Iowa Family Policy Council.

It cites the motto on the seal of the state, which reads, "Our liberties we prize and our rights we will maintain."

"This noble motto … is emblematic of the moral sentiments of Iowans from the banks of the Missouri to the waters of the Mighty Mississippi. … As citizens of the State of Iowa and thus, the United States, we enjoy the protections of this right guaranteed in the U.S. and Iowa Constitutions. This right of conscience protects individuals against coercion by the state authority, and serves as the first line of defense against the cancer of tyranny."

The letter suggests counties adopt policies that ensure no one will be required to "issue or process a marriage license, or to perform, assist, or participate in such procedures, against that individual's religious beliefs or moral convictions."

The suggested policy continues: "A person shall not discriminate against any individual in any way, including but not limited to employment, promotion, advancement, transfer, licensing, education, training, or the granting of employment privileges or conditions, because of the individual's participation in or refusal to participate in the issuance of a marriage license."

If Miller does not like that, the ADF "will defend this policy language and will provide free legal review and defense if this policy is challenged on the basis of its content."

"This policy would protect objecting employees from being forced to issue marriage licenses to same-sex couples if doing so would violate the employee's conscience," the ADF said.

Doug Napier, ADF senior legal counsel, said government employees who believe in marriage as the union of one man and one woman should not be penalized for abiding by their beliefs.

"This policy allows an employee who does not wish to violate his or her own conscience by issuing a marriage license to a same-sex couple to abstain and allow the transaction to be performed by someone who is willing to do it," he said. "Forcing them to participate in offensive acts contrary to their deeply held beliefs in order to remain employed is unconstitutional.

"Contrary to the threatening statement issued by Attorney General Tom Miller on April 21, the citizens of Iowa enjoy the protections of the right of conscience guaranteed in the U.S. and Iowa constitutions – the very constitutions that county recorders swore to uphold when taking office," Napier said. "Mr. Miller conveniently omitted any discussion of their rights of conscience or the recorders' duty to protect the rights of their employees.

"This right of conscience protects individuals against heavy-handed coercion by the state, including the attorney general," he said.

Napier said the Iowa marriage law was settled and supported by Iowans, but then the court justices "stepped outside of [their] proper role of interpreting the law and has instead overruled the will of the people and created new law."

Miller, on his web page, affirmed that the justices were creating new law.

Napier said the solution would be for the state legislature to allow state residents to vote on the issue. The Iowa Family Policy Council already has begun work on that effort at a website promoting a marriage amendment.

A spokesman for the state organization said it had been contacted by a number of recorders or their employees expressing concern that the state's orders on a moral issue would violate their religious beliefs.

The same issue arose when a state court in California  last year ruled there that county offices must issue same-sex "marriage" licenses. Several county officials were in the position of developing a challenge to the orders when voters took the issue in hand and in November overruled the court.

The voters in California embedded in their state constitution the definition of marriage limited to one man and one woman.

In California then, as in Iowa now, state officials rewrote state forms and procedures even though the legislatures are the only agencies authorized to write state law.

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