The Supreme Court nearly got a gay marriage case in 1976

On May 11, 1976, two Solon men, Tracy Bjorgum, a 20-year-old University of  Iowa student, and Ken Bunch, 24, a custodian at UI Hospitals as well as a spokesman for the UI chapter of the Gay Liberation Front,  applied for a marriage license at the Johnson County Clerk of Court office. Clerk of Court Jack Wombacher requested an opinion from the Johnson County Attorney’s office on the legality of issuing the license.

            The men agreed that they had been treated courteously at the clerk’s office, but Bunch said the only “really bad moment… was when a heterosexual couple came in after us and they got their license within five minutes. We are not doing this for publicity, we believe it is the simple right of two men to get a marriage license.”

            When the state-required three-day waiting period was up on Friday, May 14, Johnson County Attorney Jack Dooley had made a legal decision in the matter. He advised Wombacher to deny the license. In a two-page opinion filed earlier that day, Dooley said that two chapters in the Code of Iowa refer to “husband and wife,” concluding that “marriage has been envisioned, from the territorial enactment of 1843 to the present, as a contract available only to persons of the opposite sex.”

            Dooley also made reference to a similar request that was refused in Minnesota and  was taken to the U.S. Supreme Court, which refused to review it.

            In June, Bunch and Bjorgum tried again, this time in Polk County, and again they were denied. The Iowa Civil Liberties Union then became involved, asking the Polk County District Court to order the clerk of court’s office to issue the license. Polk County District Court Judge Anthony Critelli then ruled that although Iowa law does not deprive homosexuals “the right to free association,” it does prohibit them from legally marrying.

 The ICLU said the case involved several issues, including the right to marry, freedom of association and the right to privacy.
            “To deny gay people the right to marry is no different than to deny that right to blacks, or facists, or Republicans, or farmers. It ought not to be done.”

An Iowa Supreme Court challenge had been considered by the ICLU, but it was dropped. ICLU Director Howard Weinberg said the high court may at a later time reverse a lower court ruling prohibiting homosexuals from marrying, but “current social morals make the change impossible at the current time.”

It was believed to be the first time in Iowa that two males attempted to legalize a homosexual relationship through blood tests and a marriage license.