Our View - 'Let's go to Iowa and make it official'

(Iowa City Press-Citizen "Our View," May 27, 2009)

Tuesday's 6-1 ruling by the California Supreme Court means that same-sex couples in that state can have all the benefits of marriage but can't claim the term itself. Although the California court ruled 4-3 last year that same-sex couples had a right to marry, it ruled Tuesday that Proposition 8, the constitutional amendment voters passed in November, "carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term 'marriage' for the union of opposite-sex couples as a matter of state constitutional law."

The ruling was not unexpected -- the case was based on the process by which Proposition 8 came before the voters and not on the question of same-sex marriage itself. But the decision further highlights the importance of the Iowa Supreme Court's unanimous decision last month to overturn Iowa's decade-old "defense of marriage" act.

While a majority of states have changed their constitutions to define marriage as a union between one man and one woman -- and while many have allowed for "civil unions" -- the April 3 Iowa Supreme Court ruling holds that any law or practice that discriminates against homosexuals as a class is now held suspect. That means calling same-sex marriage by any other name -- even "civil union" -- isn't possible under the Iowa Constitution as currently written.

As Rep. Steve King wrote in a guest column for the Des Moines Register on Tuesday, "Abiding by the amendment process of the Iowa Constitution may, at first, seem to hamstring believers in marriage (as traditionally and statutorily defined) and the rule of law. But using the rule of law to reverse the Iowa Supreme Court's decision by amending the Constitution is the only way to uphold it and confer legitimacy on the process."

While King views the Iowa Supreme Court decision as an example of illegitimate "judicial activism, we view the recent California decision -- and Proposition 8 itself -- as a frightening example of how civil rights, once recognized, can be still be taken away from U.S. citizens. While King writes about the Iowa Supreme Court "creating a 'right' to 'same-sex marriage,'" we're concerned that a basic civil right, once recognized, can be removed by any group -- even by the will of the majority population. (Some good news in the Tuesday ruling is that California will continue to use the word "marriage" to describe the legal commitments made by nearly 18,000 same-sex couples between the court's initial ruling last May and Nov. 4, when 52 percent of California voters passed Proposition 8.)

Of course, the California ruling may indirectly help add some more tourist dollars to Iowa coffers. We think local organizations like Iowa City/Coralville Convention and Visitors Bureau are right to begin marketing our state and area to same sex couples throughout the nation. During the recent White House correspondents' dinner, for example, even President Obama joked about what "partners all across America are saying to one another right now: 'Let's go to Iowa and make it official.'"

But we'll be even happier when Iowa begins to lose some of its market share as a site for same-sex weddings and more and more state courts, legislatures and voters begin to recognize same-sex marriage as a civil rights issue.

Iowa should fill senate seats by special election

Here's the Feb. 18 "Our View" ...

Last year’s election of two sitting senators to president and vice president — along with the appointment of senators to become secretary of state and secretary of the interior — hasn’t led to any real “good” examples of why governors should retain the authority to appoint U.S. senators. The situation instead has offered a “bad” example (in New York Gov. David Patterson’s efforts to replace Hillary Clinton) and a blatantly “ugly” example (in former Illinois Gov. Rod Blagojevich’s efforts to replace Barack Obama).

Even the now moot negotiations over the non-appointment of Sen. Judd Gregg (R-N.H.) to secretary of commerce shows how much wheeling and dealing can be done to ensure that new senator is of the right party (different than the governor’s in Gregg’s case) and of the right duration (not willing to seek re-election).

Considering that the average age for a U.S. senator is 62 — Iowa’s Chuck Grassley is 75, and Tom Harkin is 69 — it’s easy to understand why 55-year-old Sen. Russ Feingold has proposed a Constitutional amendment calling all states to follow the example of Wisconsin by filling vacated senate positions by special election rather than by gubernatorial appointment. Although elections don’t always provide a clear winner — just look at what’s happening in Minnesota between Norm Coleman and Al Franken — they do offer more legitimacy than the mere whim of a state’s chief executive.

We support Feingold in concept, but we can’t agree with his call for a Constitutional amendment.

That’s why we hope that House File 200, which was introduced by Democrat Rep. Mark Kuhn of Charles City, gets more than mere lip service from the Iowa Legislature. Yes, to hold a special election for a vacated senate seat could cost the state as much as $1 million, but it’s a necessary price to ensure that Iowa senators don’t require any asterisk next to their names. And, considering that it’s been more than seven decades since the state had a vacated senate seat, it’s not an expense that occurs very often.

If other states want to continue to use gubernatorial appointment as the means for choosing their representative in the upper house of Congress, then that’s their prerogative. But Iowa should show that it can learn from its neighboring states — both from the good example of Wisconsin, and from the ugly example of Illinois.

Iowa’s Democratic leaders should also keep in mind that Illinois has become an international laughingstock not only because its governor allegedly tried to peddle off Obama’s old senate seat, but also because its Democratic leaders refused have their next senator decided by special election. They were more afraid of losing the open seat to a Republican reformer than they were of letting the now impeached Blagojevich make his own selection.

Celebrating Lincoln and Darwin Day

I rather like how this Feb. 12 "Our View" turned out ...

As a prime example of the aberrant synchronicities that punctuate our otherwise chaotic universe, Abraham Lincoln and Charles Darwin shared a birthday 200 (or 10-score and zero) years ago today. For the past few months, this random conjunction of two 19th-century Aquariuses has had many 21st century pundits and public intellectuals sparring over which man had the more profound impact on the world as we now know it:

• The politician or the scientist?

• The emancipator of slaves or the observer of evolutionary processes?

• The man who saved the union or the man who shook faith itself to the core?

Adam Gopnik, in his new book, "Angels and Ages: A Short Book About Darwin, Lincoln, and Modern Life," clearly favors Darwin in this political-scientific smackdown -- calling Darwin a "world maker" because of the far-reaching consequences of his legacy. And we, in agreement with President Obama's Inauguration Day call to "restore science to its rightful place," don't mind admitting that the legacy of America's greatest president plays second fiddle to that of the British author of "Origin of the Species" -- a book that turns 150 this year.

But that slight qualification doesn't take away from how much our current leaders could stand to learn from the example of our 16th U.S. president. The man contemporaries once dismissed as a "first-rate second-rate man," now gets hailed as America's greatest leader. As pragmatic politician, Lincoln sought to have his fellow citizens substitute dispassionate reason and obedience to the law for the zeal and "culture of honor" violence that too often defined mid-19th-century politics. And as a martyred leader, one we remember more for his poetic outbursts than for his complex legal arguments, Lincoln managed to surpass the cultural limitations of his day and to help move America closer toward that "more perfect union."

As Henry Louis Gates Jr. recently wrote in answer to the question, "Was Lincoln a racist?":

"He certainly embraced anti-black attitudes and phobias in his early years and throughout his debates with Stephen Douglas in the 1858 Senate race (the seat that would become Barack Obama's), which he lost. By the end of the Civil War, Lincoln was on an upward arc, perhaps heading toward becoming the man he has since been mythologized as being: the Great Emancipator, the man who freed -- and loved -- the slaves. But his journey was certainly not complete on the day that he died. Abraham Lincoln wrestled with race until the end. And ... his struggle ultimately made him a more interesting and noble man than the mythical hero we have come to revere" (www.theroot.com).

Lincoln's complicated legacy isn't one for the angels, but it is one for the ages.

Give homeowners options other than just walking away

During his speech Monday in Elkhart, Ind., President Obama suggested that one way to help the millions of Americans with upside-down mortgages — mortgages in which they owe their lender more than their house is worth — would be to change the bankruptcy laws and give judges the authority to modify the terms of a mortgage for someone’s only home. Right now, the law allows judges to modify mortgages for additional homes, but not for someone’s sole residence.

“Now, that makes no sense,” Obama told the crowd. “What that’s doing is it’s forcing a lot of people into foreclosure who potentially would be better off, and the bank would be better off, and the community would be better off if they’re at least making some payments, but they’re not able to make all the payments necessary.”

We were disappointed that such practical legislation wasn’t included in the stimulus compromise agreed to Wednesday. Bankers and others in the mortgage industry worry that such a change would all but dry up the market for second mortgages and could raise rates for all new homeowners. But the industry and the broader economy have much more to lose if these struggling homeowners can’t work out a compromise with their lending institutions.

Iowa City bankruptcy lawyer Steve Klesner said he thinks it’s necessary to grant judges this authority because so many mortgages have been repackaged, rebundled and resold to so many different lenders that it’s sometimes impossible to figure out which — or even how many — of the lenders need to sign-off on the modifications. And some lenders simply never agree to any modifications.

Empowering judges to be decision-makers would increase the possibilities of finding an agreement in the best interests of the lender, the borrower and the neighboring landowners.

When is it right to walk away?

If Congress doesn’t move forward with granting judges this authority, far too many people over the next few years could have to decide whether it’s in their best interest just to walk away altogether from their mortgage.

Klesner said many homeowners view the option as ethically dubious at best and wouldn’t even consider following through with it. Others who eventually hope to find jobs in management or in public service will need to decide what’s more costly to their long-term goals: paying off the mortgage or enduring the stain on their credit record.

And even the remaining homeowners — those who, after looking at their situation dispassionately, decide that walking away makes sense — need to know what they are in for.
Iowa law gives lenders two options when deciding to foreclose on property:

* If lenders choose to use foreclosure without redemption, they just go after the legal title to the property and don’t go after the borrower to make up any shortfall between how much is owed and how much the property eventually sells for. After being served with a foreclosure without redemption notice, the borrower can ask for six months to vacate the property.

* If lenders choose straight foreclosure, then they reserve the right to go after a borrower to make up any shortfall. But the process takes longer because the borrower can ask for one year to vacate the house.

Because most lenders don’t want to have their properties sitting around depreciating for an entire year, foreclosure without redemption is the dominant form in Iowa. Before the current housing crisis, it was almost assumed that, if a foreclosed home only had one mortgage on it, the lender wouldn’t go after any shortfall.

Klesner said in the past year, however, there’s been a noticeable increase in the number of lenders using straight foreclosure even when a home doesn’t have second mortgage — probably because lenders facing increased numbers of mortgage defaults need to make up the money somehow. It’s not a huge increase, but it’s no longer an absolutely safe bet that lenders won’t go after people who decide to walk away from a first mortgage.

Help homeowners avoid the dilemma

But the bet still is safe enough for some.

If Iowa City flood victims are facing a mortgage costing more than the post-flood appraisal of their homes, and if they’re also facing more than $50,000 in repairs on top of that, they might want to consider walking away if their property only has one mortgage on it.

If their lenders choose foreclosure without redemption, they can absorb the devastating financial loss and try to move forward with their lives — even though they’ve probably lowered the home values of their neighbors’ properties. If their lenders choose straight foreclosure, they’ll need to declare bankruptcy anyway and try to protect their remaining assets.

With the proposed change in bankruptcy law, judges could help many homeowners avoid facing this dilemma in the first place. It wouldn’t keep every home out of foreclosure, but it would give homeowners more options.