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.
UPDATE/RETRACTION
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.
Calling a unanimous state Supreme Court ruling "nothing but its opinion" ? Are you not comfortable with America's conception of a third co-equal branch of government with the power to rule laws unconstitutional?
ReplyDeleteI guess given your disregard for the rule of law on issues like torture and the right of foreign nationals to challenge their detention by the military when moved to other countries like Cuba and Afghanistan, nobody will be surprised.
It would be amusing to read you raving about Marbury v. Madison in the 1800's. Given how rightist your views are, I'm pretty sure that had you been alive back then you would have been against it.
I suppose you also think Plessy v. Ferguson or any rulings upholding anti-miscegenation laws were rightly decided at the time. So perhaps Loving v. Virginia was wrongly decided as well? And Lawrence v. Texas?
Damn these judges and their arbitrary opinions creating "imaginary rights out of thin air" !!
"Calling a unanimous state Supreme Court ruling "nothing but its opinion" ?"
ReplyDeleteOf course. What else is it?
"I guess given your disregard for the rule of law on issues like torture and the right of foreign nationals to challenge their detention by the military when moved to other countries like Cuba and Afghanistan, nobody will be surprised."
Except that I have no disregard for the "rule of law." My definition of the rule of law just happens to differ greatly from yours.
"Given how rightist your views are, I'm pretty sure that had you been alive back then you would have been against it."
No, I don't think so. But it was a very different case. And no I wouldn't take those positions on the other three cases, which have no relevance to this particular situation.
Btw, you might want to stop acting as if opposing this type of judicial action is some sort of radical position. At worst it's a strong minority view, and at best its held by a slight majority, depending on how you evaluate.
ReplyDelete> "I have no disregard for the "rule of law."
ReplyDeleteYou are on the record acknowledging that torture is against the law and that it should remain so, but say that despite being illegal it should be done anyway whenever you think it appropriate.
> "I wouldn't take those positions on the other three cases, which have no relevance to this particular situation."
I listed four, and they have direct relevance to the "creating imaginary rights out of thin air" canard. If you won't address past rights rulings then you're ducking the issue. Whether your desire to do so is based on a sense of inadequacy, cowardice, or hypocrisy I cannot say. But it's certainly not irrelevance.
"You are on the record acknowledging that torture is against the law and that it should remain so, but say that despite being illegal it should be done anyway whenever you think it appropriate."
ReplyDeleteI am against blind and idiotic legalism. Every law has exceptions. And the laws against torture are shaky and subject to interpretation. Tortue itself is highly subjective. We should interpret the law to our advantage, not to our disadvantage in national security situations.
"I listed four, and they have direct relevance to the "creating imaginary rights out of thin air" canard."
Except that it isn't a canard. It's exactly what the court did in this case. There was and is no right to gay marriage in the Iowa state constitution. They court substituted their opinion for the political process and simply created a right.
"If you won't address past rights rulings then you're ducking the issue."
The issue is this particular case. Why would I want to argue about cases all the way back to Plessy vs. Ferguson? It's not like I'm making some complex legal argument.
And I'm not arguing against gay marriage. Despite the circumstances, I'm happy it's legal in Iowa. I think it should be legal nationwide. If I were an Iowa resident, I certainly wouldn't vote in favor of a constitutional amendment reversing the court, and I would vote in favor of a constitutional amendment giving gays the right to marry. I just think judicial ruling is the wrong way legalize it, for the reasons already given.
I wasn't going to bother, but just because i'm insanely argumentative:
ReplyDeleteLoving vs. Virginia. Struck down a state law as unconstitutional. It's a totally different situation. Iowas didn't have a specific law banning gay marriage.
Lawrence vs. Texas. Has nothing to do with marriage. Struck down a statue criminalizing private behavior. Completely irrelevant to Iowa.
Plessy vs. Ferguson. Upheld racial segregation. Also completely irrelevant to Iowa.
Marbury vs. Madison. Way more complicated, but relevant only to whether the court has the power to strike down a statute. I'm not arguing it can't do it -- obviously it can. I'm arguing that it shouldn't in this case.
The only one of your examples that has any significant relevance is Loving, which is specifically about marriage. But the issue and situation were much different.
Good of you to respond. It's why I read this place, you're interested in rational debate unlike most rightists. I wasn't asking about these cases' relevance to Iowa or marriage specifically, I was asking about relevance to the general issue declaring a law unconstitutional to "create rights", which the complaint you're applying to Iowa.
ReplyDeleteYes Lawrence is a criminal case, but relevant because it deals with the rights of the same minority, rights that had been denied to them by law. Are you just saying you're in favor of courts "creating" rights when it deals with private behavior, but have no problem with courts upholding the legality of civil restrictions on the same group in defiance of equal protection?
For Plessy I wished to know if you thought it was _correctly_ decided at the time, given the laws that supported it.
For Loving you say "Iowas didn't have a specific law banning gay marriage."
Actually it did, Iowa Code section 595.2:
"1. Only a marriage between a male and a female is valid."
That's what was struck down today.
Gherald,
ReplyDeleteI'm actually reconsidering my argument after just reading an much more detailed description of the court's. I'm going to post it as an update.
UNRR,
ReplyDeleteAs the author of the post you cite from The Victorious Opposition, I am glad that my writeup helped clarify this case for you. I spend a lot of time working on my posts, both because this issue is important to me, and because I post on a multi-author blog with a diverse audience, and am often in the minority on social issues.
The "judicial activism" label gets thrown around a lot, and it's rarely appropriate. The reality is that "judicial activism" has been alive and well in the US since Marbury v. Madison. Thomas Jefferson wrote the following to Abigail Adams in 1804 about that momentus decision (which established the principle of judicial review):
"The Constitution ... meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch."
The reality is that the SCOTUS and the state Supreme Courts are co-equal branches of their respective governments. To supposed that these branches should defer to the legislative and/or executive branches, because they are not elected, would deny their co-equal nature. These courts were established explicitly to be anti-majoritarian and not subject to the whims of political power (the Iowa decision discusses this, including quoting from the Iowa constitutional convention about this very matter).
Which is not to say that there are not bad and/or inappropriate decisions. There absolutely are. But the idea that "judicial activism" is some sort of post-modern liberal phenomenon (a phrase that has been thrown at me) is simply untrue. The concept is over 200 years old. And it's not just a liberal thing. Go read up on the Lochner Era Cases - 30+ years of highly libertarian/fiscal conservative decisions in the early 20th century, which the liberal/progressive side routinely considered judicial activism.
I will be writing more about these issues at The VO.