- Home
- About Us
- Contributors
- Departments
- Topics
- Back Issues
- Weekly Archives
- AmSpecBlog
- Subscribe
- Newsletter
- Advertise
- Donate
- Contact Us
- Daily Digest
- Templeton Essays
Constitutional Opinions
Making It Up As They Go
On Friday, the Iowa Supreme Court unanimously repudiated the idea that marriage is about something more than securing government approval of adult desires. In the court's formulation (the decision is on line here), Iowa's constitution mandated a redefinition of marriage to give same-sex couples "the personal and public affirmation that accompanies marriage."
As disturbing as the result is the convoluted reasoning the court employs to reach its conclusion. It is unanchored to precedent, text and, at some points, even reality. The court signals its ad hoc approach to constitutional interpretation early on when it says the legal requirement of equal protection of the laws "can only be defined by the standards of each generation."
Legal concepts are not the only casualties of the court's search for a justification on which to rest its decision. The court, for instance, recasts marriage as an arrangement "designed to bring a sense of order to the legal relationships of committed couples and their families."
Later, when the court tries to explain its role in overturning the marriage statute by arguing that it is required to act to protect a uniquely vulnerable minority, one piece of evidence the court offers to show that gays and lesbians are "politically powerless" (despite securing adoptions rights, coverage in state anti-discrimination laws, etc.) is that they have failed to convince a legislature to redefine marriage. What possible limitation, other than judges' subjective will, can there be on the court's power to disrupt social norms if it can be triggered by a failure of the legislature to meet the demands of a pressure group?
Perhaps the most creative improvisation comes in the portion of the court's decision dismissing the idea that marriage has anything to do with children's welfare.
Appellate courts in Arizona, Indiana, New Jersey, New York, Washington and Maryland have all noted the role marriage plays in encouraging men and women to take responsibility for each other and the children they may create together and in making real the opportunity of children, wherever possible, to know and be raised by their own mother and father. The supreme court of Iowa dismisses all of this with exceedingly strange arguments. For instance, the claim that marriage can have nothing to do with childrearing because bad parents are not excluded from marriage. Or (a novel straw man), that Polk County (since the state attorney general didn't bother to make an appearance in the case) should have shown that traditional marriage resulted in fewer same-sex couples rearing children if it were serious that marriage and childrearing should remain linked.
The court goes so far as to say that "the traditional notion that children need a mother and a father to be raised into healthy, well-adjusted adults is based more on stereotype than anything else." Can the court really believe that our understanding of marriage as the optimal setting for childrearing, an understanding inherited from millennia of human experience, is just a plot to disadvantage homosexuals? If this assertion had been offered two days before, one might have concluded it was a spoof.
As an aside, the court claims an abundance of (uncited) evidence that children will fare just fine in motherless or fatherless homes. It does not, however, explain how this evidence surfaced since the district court concluded from the testimony offered in the case that "Social science literature demonstrates that children who are reared by a married mother and father have more positive outcomes on a wide variety of important factors compared to children in other adequately studied family structures" and "same-sex couples are not included amongst the 'other adequately studied family structures' referred to."
That not just a majority, but the entire court, was unwilling or unable to recognize the claims of tradition, of constitutional law, or even of realities like sex differences or procreative capacity, is troubling indeed. While improvisation may be charming in music, it is a poor technique for legal analysis.
Comments
Leave a Comment
Are you in a mob?
The Democrats say Obamacare opponents are a mob. Are they right?
Participating in this survey will subscribe you to the American Spectator email newsletter. You may unsubscribe at any time.
Vast| 4.6.09 @ 7:56AM
It is the responsibility of the courts to protect minorities from the tyranny of the majority.
Steve Beren www.steveberen.com| 4.6.09 @ 8:23AM
It is the responsibility of the courts to impartially interpret the existing constitution and existing legislation.
seejay| 4.6.09 @ 8:51AM
Duh!
Who DIDN'T see this coming...?
All government has gone nuts!
And soon, there will be a bounty on them...
Chuck Anziulewicz| 4.6.09 @ 8:54AM
It is not the courts' job to uphold the precise will of the majority of the people. That's what elections are for. The job of the courts is to uphold the Constitution, regardless of whether the necessary decisions fall in line with the will of the majority. It is up to the judges to determine, without bias from the rest of the population, what constitutes equality under the law, or equal protection. It seems more than obvious to me that to exclude Gays from the institution of marriage is a clear violation of any notion of "equality," and I have yet to see anyone dispute that on a rational level. Therefore, it is not "activism" on the part of judges to declare that Gay and Straight couples should be treated equally under the law, rather it is an example of judges performing their rightful duty.
Furthermore, it is not the purpose of government, nor of the Constitution, to make things "sacred." Those who believe that marriage is sacred usually choose to be married in a religious ceremony. Gay couples may or may not be making a religious or moral statement; though most Christian denominations do no recognize such commitment, some do. Regardless, Gay couples simply wish to be legally bound to each other by law. We wish to have all the same privileges of any lifelong couple.
If the government still considers "marriage" to be a religious designation rather than a legal one, it has no business making any laws concerning that institution. If, as confirmed by its actions, the government believes "marriage" to be a legal contract, it has no business denying that contract to any two people, no matter what their gender might be.
Mr. Duncan, please let me reassure you: The advent of marriage equality for Gay couples doesn't mean "traditional marriage" is going anywhere. 90-95% of human beings are heterosexual, always have been, always will be ... and they will continue to date, get engaged, marry and build lives and families together as they always have. As for allowing Gay couples to marry, I can promise you with 100% certainty that it will not affect your life, your marriage, your church, or your children ONE BIT. You will never have to worry about being denied a job or your love because of YOUR sexual orientation. Your church will never be forced to marry Gay couples, any more than it is forced to marry non-Christian couples.
Perhaps the best thing for you to do when it comes to your dealings with Gay individuals and couples is simply to obey The Golden Rule: Treat them as you yourself would wish to be treated.
Curly Smith| 4.6.09 @ 9:11AM
If you go here, http://www.judicial.state.ia.us/Professional_Regulation/Bar_Admission__Practice_Rules/, you'll find "Chapter 31 of the Iowa Court Rules governs who may practice law in Iowa. Qualified persons seeking admission to the bar or authority to appear in an action in an Iowa court should refer to the following rules"
How is it in these enlightened days of "Equal Protection" that the Iowa Bar can Constitutionally use archaic, anachronistic, and completely arbitrary rules to determine who can call themselves an "attorney"? Shouldn't these rules be decided "by the standards of each generation"? Isn't the practice of "those in the club" getting to decide who can and can't join the definition of discrimination?
The traditional notion that lawyers need a foundation in the law is based more on stereotype than anything else. Isn't it time for us to admit that these licensing requirements do nothing but restrict the supply of attorneys and drive up the cost of legal representation, all to the benefit of greedy attorneys? Isn't it time that we broke up "Big Law" for the benefit of society?
Ken| 4.6.09 @ 9:19AM
"It seems more than obvious to me that to exclude Gays from the institution of marriage is a clear violation of any notion of "equality," and I have yet to see anyone dispute that on a rational level"
Gays are not at all excluded from the institution of marriage. The issue is whether they can use the word marriage to describe something that marriage has never meant. Marriage in all cultures throughout history has been restricted to heterosexualk unions. Limiting permission to marry to heterosexual couples of a certain age, mental capacity, and no current marriage entanglements applies equally to all people, regardless of age, sex, or current marital status. Equal protection under the law involves such uniform application. It does notmean the wholesale redefintion of words and leveling of societal norms to accommodate any particular ideology.
Anthony| 4.6.09 @ 10:15AM
"Standards of each generation" means that the Constitution is a meaningless document, victim to the subjective and political whims of the current generation. Judicial precedent is meaningless and ignored if it does not conform to the mores of the day. As Mark Levin and others have warned, a dangerous judicial oligarchy has taken over the transformation of America. The left has turned the Constitution into an Orwellian nightmare.
Aaron| 4.6.09 @ 10:24AM
Thank God that our U.S. Supremes are lifetime appointments. The Iowa process is an abomination. These lawyers are too concerned with their future political ambitions.
The Iowans elect a liberal Governor who was raised in Washington D.C. by a liberal career politician. Throw in a few more state representatives and now they have voted themselves all the way back to 1965 with dems having complete control of the state.
Well they are the largest pork producer in the world...
RJ| 4.6.09 @ 11:00AM
Leave aside for the moment whatever views one has for/agaisnt same-sex marriage. What should be abhorrent to all- straight or gay- who profess belief in our representative form of democracy, is the usurption of the legislative- or initiative petition, or constitutional amendment- processes by these judiciaries. The particular issue is less relevent than the arrogation of power by these black robed tyrants, wether in Iowa, or in other states. You want legalized same-sex marriage (and personally, I'm not opposed to it; if they seek the rights and responsibilites incumbent upon marriage, to me that seems to be a more cosnervative act) do it the proper way, via the legislative process, do it in a manner in which the will of the majority has input.
Lastly, for those who applaud this sort of judicial conduct, just remember; a court that can make such unaccountable dicates that please you today can just as easily, under the same guise, issue unaccoutnable dictates you disapprove of tomorrow.
Chuck Anziulewicz| 4.6.09 @ 11:25AM
DEAR RJ:
To you and everyone else out there who still suggest that social justice must be reached through the legislative process, rather than through the courts, I would point to the history of racial injustice in this country. While I could choose any number of cases to make my point, I'll start with the most obvious - Brown v Board of Education of Topeka, Kansas. As everyone knows, this is the ruling that essentially reversed the Plessy v Ferguson "separate but equal" doctrine. Without the decision of the court in Brown v Board, it is impossible to say when the schools of America would have begun to integrate, but I believe it is safe to say it would have been much later. At the time, the Brown v Board decision was just as unpopular with certain segments of the population as a decision today would be that grants Gay couples equal marriage rights. Looking back, I think we can all agree that the unpopularity of the decision did not make it wrong.
When you're dealing with bigotry, a force which runs deeper than many would like to admit, it is often impossible to wait for the "legislative process" to do its work. There is no telling how long it will take a majority of the population to decide, on its own, that it is time to stop discriminating based on sexual orientation. I therefore believe that it is not only the right, but the obligation of the courts to step in and ensure that all citizens are able to enjoy the same rights under the law, as the spirit of the Constitution provides.
Paul from SA| 4.6.09 @ 11:52AM
Liberal judges making new laws has gotten out of control. We all know what's coming; marriage will be defined as a right, and that means nobody can be denied: a person will be able to marry their children, their parents, their brothers and sisters, their relatives, their friends, neighbors and co-workers. And since it is a right, they will be able to get married even while in jail.
Imagine, an entire commune, all married to each other. Then they can all get free benefits.
I hope Iowa and each state amends their constitution to stop liberal judges from creating new laws.
Aaron| 4.6.09 @ 11:58AM
Mr. Anziulewicz,
Please stop with the civil rights analogies, it only serves to cheapen the struggle that blacks in America went through. A man who CHOOSES to sleep with another man is clearly not the same as man who is born black.
I know, cue the argument that gays are born gay. Even if they are and thats a really big if, they don't have to follow through with the act. That being said, anyone who chooses to be gay is already afforded the same protections and rights under the constitution.
Paul from SA| 4.6.09 @ 12:01PM
Woops, I left out this important point in my last comment:
This is a moot point. I understand, that in England, a person can change their sex by signing a piece of paper. No doubt that will occur here as well. Even if states/citizens amend their constitutions to prohibit same-sex marriage, the liberals will find ways to get around it.
Martin McPhillips| 4.6.09 @ 1:33PM
Marriage, of course, is the social institution that formalizes and makes virtuous the natural and complementary relationship between one person each from the opposing sexes. It is rooted in that natural reality and draws its meaning from it. Any attempt to suggest, from whatever lofty legal position, that two people from the same sex have an "equal" right to marry one another is pure postmodern hooey. It replaces reality with narrative and disregards the fundamental underlying facts that attend to the meaning of marriage. "Gay marriage" is as meaningless as 2+2=5, and trying to use the force of law to make people believe it is valid is about as sinister as making people believe that 2+2 does indeed equal 5.
This is not the "opening up" of marriage, it is its destruction, which I am convinced is the real motive behind the academic Critical Legal Theory and Queer Theory projects pushing the legal concepts that the judges used in Iowa.
Ray T.| 4.6.09 @ 1:34PM
"It is up to the judges to determine, without bias from the rest of the population, what constitutes equality under the law, or equal protection."
This is the problem with our civics education: Americans believe the Court is responsible solely for interpretation of the Constitution (Federal and state). It is the responsibility of all branches, officials, and citizens.
Is man-woman-only marrage lawful (constitutional)? Yes. Is the Iowa Court behaving unlawfully? Yes. Will the Iowa Legislature or Governor move to undo the illegal Court behavior? No. Democrat Liberals, more than any group of Americans, believe in the idea of Court supremacy.... on any issue, regardless of reason.
Martin McPhillips| 4.6.09 @ 1:42PM
Brown v. Board of Education has nothing to do with "gay marriage." For starters, it didn't grant one group any new right to be educated. It merely said that the state could not maintain separate schooling systems for black and whites.
In the Loving case, the USSC struck down a law that prohibited marriage between blacks and whites. It was about race, not the meaning of marriage.
The decision to impose "gay marriage" on Iowa has nothing to do with the "equal protection under the law." It's an attempt to change the meaning of marriage and in the process an attack on meaning itself.
What's politicans done for you| 4.6.09 @ 1:52PM
Get ready for the new TAXES on being alive, 1000 new Taxes, to enslave the entire globe. Obama will be able to cut the deficit by half, I wonder if these new Taxes has anything to do with it, tax per mile, thx on your stake, tax on your chicken tax on your fish. Tax on the farmers cattle, tax per mile to drive.
Tax pn plastic containers, tax to heat your home and air conditioners, Air Travel electricity train travel, medicine, shipping, carbon tax, tax to live. That's only a few new taxes. Stop worring about who is in office and worry about how you are going to survive, makes more sense. Obama is only the front man, they call it global warming, reality says it's Climate change.
JS| 4.6.09 @ 2:33PM
Gays are equally treated under the law. All gay men and women have the equal right to marry. That is marry someone of the opposite sex. If marriage is now going to mean same sex marriage then it should also include bigamy and puligamy. Because just because a man wants to marry two woment doesn't mean the state can discrimintate against him for it. He should have the RIGHT.
Words written on paper mean nothing anymore. Judges can make of rights and laws in whole cloth.
Francis Beckwith| 4.6.09 @ 2:53PM
"When you're dealing with bigotry, a force which runs deeper than many would like to admit, it is often impossible to wait for the `legislative process' to do its work. There is no telling how long it will take a majority of the population to decide, on its own, that it is time to stop discriminating based on sexual orientation. I therefore believe that it is not only the right, but the obligation of the courts to step in and ensure that all citizens are able to enjoy the same rights under the law, as the spirit of the Constitution provides."
How do you know that your view of sexual orientation is itself a sort of bigotry and those who hold to a complementarian view of sexuality and marriage may have in fact thought through the issue and come to a different conclusion than you? It's a bit presumptuous to think that mere "bigotry" may account for every person who has ever believed in traditional marriage, from Moses to Jesus to Shakespeare to John Paul II. Perhaps they are all wrong. But you should at least assume that they are as intelligent and as fair-minded as you.
Ironically, the use of the term "bigotry" without providing any real reason to accept that attribution is itself, well, a form of bigotry. Remember, there are really good reasons why someone may think that marriage is exclusively complementarian, just as there are really good reasons why someone may believe that procedural justice is a better protection from tyranny than ambitious courts that get the just result every once and a while. (Plessy, after all, was a court decision, as was Dred Scott and the famous Civil Rights cases soon after the Civil War, all of which were courts usurping legislative powers to themselves).
Ironically, the accusation of "bigotry" assumes, correctly, that bigotry is wrong. But why should we think it is wrong? Is it because human beings are such that they are beings with certain ends or purposes including having a rightly-ordered mind, and that bigotry is violation of that purpose? If it is, then merely extend that insight to complementary gendered persons whose intimate parts only function properly in concert with their complements. If you don't agree, then turn about is fair play: perhaps bigotry is like homosexual behavior, something you must get over and learn to appreciate. If judgment homosexual behavior as wrong based on proper function is bigotry, then so is the judgment that bigotry is wrong based on the mind's proper function.
Rantly McTirade| 4.6.09 @ 3:51PM
Ray T. scores a direct hit on the ultimate problem-the failure of the elected branches of governments to punch the judiciary back into its place, and assert their own rights to determine constitutionality, by, initially, informing the bench that its' proclaimation will in no way be enforced, and then impeaching and removing from office the arrogant usurpers. The pattern for this failure, on this subject at least, was set by the fraud-con Mitt Romney a few years back and seconded by the empty suit Demopublican Gropinator last year.
As much to blame, though, are the 'activists' on the traditional side-their passivity after the fact leads them to merely whine about what a sad day it is, how they'll organize for a amendment on the ballot, blah, blah. They should ponder the advice of Malcolm X, and instead of turning a cheek of their own, blooding that of the little tinhorns who spit in their faces.
DaveS| 4.6.09 @ 8:16PM
Move over, Massachusetts Supreme Judicial Court, New Jersey Supreme Court and Florida Supreme Court: this decision had no dissenters - so you have new competition for being the absolute worst of the worst (sorry 9th Federal circuit - you are ineligible.)
DaveS| 4.6.09 @ 8:18PM
With respect to Randy's comment: who gets to decide the constitutionality of a law? Just the judges? I do not think this is written anywhere. I wish Romney had tried this back a few years and confronted Margaret Marshall with it.
Tony in Central PA| 4.6.09 @ 10:45PM
The court obviously fails to address the fundamental issue of the difference by design of traditional marriage. Traditional marriage, in its common and intended form, allows for the generation of human life exclusively by the prinicipals. Its really about children, not the desires of the individual.
Same sex marriage bears no similarity. Procreation by the principals is always impossible, and because of this, there is absolutely no rational basis to limit these types of unions to two individuals. You can't glue feathers on a cat and insist its a duck.
Make no mistake, the main promoters of same - sex marriage will show themselves to desire nothing less than the demolition of traditional religions and the family.
brutus| 4.7.09 @ 11:17PM
Chuck A. says,
"As for allowing Gay couples to marry, I can promise you with 100% certainty that it will not affect your life, your marriage, your church, or your children ONE BIT...Your church will never be forced to marry Gay couples, any more than it is forced to marry non-Christian couples."
Hogwash.
We've all seen how the ACLU operates, bringing cases and fighting those legal battles that almost exclusively promote the liberal aganda. Once enough activist judges like Iowa's supremes have legalized gay marriages (excuse me, HOMOSEXUAL marriages; if they're gonna accuse me of being a HOMOphobe, they should expect to be called what THEY are).
Where was I ? Oh yes, once enough states' supremes have legalized homosexual marriages, and if SCOTUS hasn't overturned those states' supremes, homosexual activists and the ACLU will bring action against a church congregation for refusing to marry a homosexual couple on grounds of discrimination. With their legal action they will threaten to remove the church's tax exempt status, claiming the church is engaging in political activity by promoting only heterosexual marriages. Even though they are wrong, they'll sue anyway. After all, what local church congregation could afford to defend itself against the ACLU?
Why would homosexual activists and the ACLU sue a church? Because Christianity is anathema to liberalism.
Chino Blanco| 4.22.09 @ 3:47AM
Some folks, like William C. Duncan, make a decent living promoting that idea, brutus. I mean, the idea that this is some kind of cage match between Christian and secular forces. Oh please. Talk about hogwash. Duncan needs to go spend some time with Thomas Jefferson:
"I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the same coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors." -- from a letter to Samuel Kercheval, July 12, 1810
Lingerie| 9.12.09 @ 11:00PM
sexy lingerie wholesale lingerie