Many gay rights supporters are celebrating the decision of the Iowa Supreme Court to legalize gay marriage in the state. I'm not, even though I am a strong supporter of legalizing gay marriage. Having courts create imaginary rights out of thin air, and alter existing legislation based on nothing more than their own opinion, is exactly the wrong way to go about legalizing gay marriage. It was the route taken by California, and it produced a major backlash.
The court's arbitrary change in Iowa law rests on nothing but its opinion, an opinion that could change should the court's composition change. It could be affected by rewritten legislation, and of course be overruled by a constitutional amendment -- as in California. Judges are not on courts to make up new laws, or suddenly change existing laws based on their personal political viewpoints. Their action makes gay marriage in Iowa illegitimate to everyone who disagrees with their decision, undercuts the political process, and probably will produce hostility toward gays. As in California it could cause a backlash which makes it more difficult to eventually legalize gay marriage through the normal political process, and it may also damage gay marriage efforts in other states.
Vermont, which already passed a gay marriage bill in its state senate, has sent it to the house, where they are attempting to muster enough votes to override an expected veto. Whether it passes or fails, this is the right way to attempt to legalize gay marriage.
I just read a post at The Victorious Opposition that pretty much destroys my argument about the court's action in this case. The author states,
This isn’t about judicial activism. It’s about interpreting the equal protection clause of the Iowa Constitution under Iowa precedents. It does not find a new right; it finds an exclusion from an already-guaranteed right, on the basis of a suspect classification.The post quotes extensively from the actual decision in support of these points, and it is convincing. I made incorrect assumptions and should have read the full decision before reacting to the court's action on the basis of initial news reports. I now believe that the court acted appropriately and did not just create an imaginary right out of thin air as I argued above.