"Tyrants" in the heartland
Iowa's gay marriage earthquake
"Tyrants" in the heartland
Dick Polman, Inquirer National Political Columnist
The news Friday from the heartland - that the Iowa Supreme Court, citing the state constitution, had ruled favorably on gay marriage - triggered predictable paroxyms of rage among the usual suspects.
It's understandable that the religious right and the Republican party would be so upset. The court decision is a very big deal, a veritable earthquake. It was handed down not in a coastal liberal hotbed, but in the belly of middle America. It happened in a state where there is zero chance that the ruling will be quickly erased via voter refefendum - because Iowa decrees that, even if the state lawmakers and the citizenry want to trump the ruling by writing a gay marriage ban into the state constitution, such a procedure will take a minimum of three years...which means that gays will be free to marry in Iowa until at least 2012. The ruling can't be appealed to the federal courts, because it deals solely with state issues. Moreover, Iowa has no residency requirement for marriage licenses, so gays from other states will soon look upon Des Moines as their new favorite city.
Cue the fuming:
The Family Research Council, a mainstay religious right group, assailed the "seven unelected judges" from the "radical courts" for their decision to commit "a stunning act of judicial tyranny." Meanwhile, over at the Christian Coalition, the Iowa "judicial tyrants" were attacked for "issuing legislation from the bench" and for "legislating their personal viewpoints from the bench."
And, from the Republican National Committee, we received this missive from chairman Michael Steele: "The Iowa Supreme Court's decision...is sadly another example of judicial activism currently threatening family values in America...(D)ecisions like this are better left in the hands of legislators and governors (and) should be done by the people, not through judicial decree."
I wonder whether any of the critics took the time to actually read the 69-page decision, or familiarize themselves with the basic tenets of constitutional government, or even to check out the basics of the Iowa Supreme Court.
It's worth noting, for instance, that the ruling in favor of gay marriage was unanimous (unlike the 4-3 decisions in California, Massachusetts, and Connecticut); that the Iowa ruling was written by a Republican appointee; that the chief justice of the high court, who concurred with the ruling, is also a Republican appointee; and that it's not even accurate to refer to these seven judges as "unelected." The Iowa governor initially appoints them, but they subsequently are required to face the voters in retention elections. The two Republican appointees have already done that, successfully.
The judges' reasoning can be easily summarized: They looked at the 1998 state law which bars gays from getting civil marriage licenses, they compared the language in that law to the equal-rights language in the state constitution, and they came to the obvious conclusion that the former did not square with the latter. And since the state constitution is the ultimate arbiter ("the cornerstone of governing in Iowa"), out went the law.
When GOP chairman Steele suggests that "decisions like this" should not be done via "judicial decree," he shows how little he knows about the proper workings of the judiciary. The Iowa judges explain those workings with a minimum of frills: They start by citing the state constitution's Bill of Rights ("Equal protection of the law is one of the guaranteed rights"), noting that those rights "are declared and undeniably accepted as the supreme law of this state, against which no contrary law can stand," and they underscore the preeminence of the state document by quoting the exact words of the document. (From Article XII: "This constitution shall be the supreme law of the state, and any law inconsistent therewith, shall be void.")
You know how conservative critics of the courts always say that judges should be "strict constructionists" who accept the constitutional language precisely as it is written? Well, that's what the Iowa judges did.
They looked at the literal language of Section 6 of the state constitution, which says: "All laws of a general nature shall have a uniform operation (and) shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens." Apparently the judges couldn't find anything in there about denying equal protection to gay people.
It's true that 19th-century Iowans did manage to exclude women and blacks from equal protection of the laws, despite the lack of any specified exclusions in Section 6. But past members of the Iowa Supreme Court, citing the state constitution, remedied that situation long ago, by throwing out laws that discriminated against women and blacks. (Laws, by the way, that were considered popular at the time; judges by definition are not supposed to echo prevailing public opinion.) And, last Friday, the current high court judges pointedly referred to these "landmark cases of the past." In other words, they signaled their respect for legal precedent. That's what "strict constructionist" judges are supposed to do.
Then they examined the arguments put forth by the gay marriage opponents in the case. The opponents contended, for instance, that gays should be excluded from the equal-rights language, and therefore barred from marrying, for the sake of the children. The opponents argued in favor of "child rearing by a father and a mother in a marital relationship, which social scientists say with confidence is the optimal milieu for child rearing."
But the judges were more convinced by the brunt of the evidence on the other side. They wrote: "The American Academy of Pediatrics, the American Psychiatric Association, the American Psychological Association, the National Association of Social Workers, and the Child Welfare League of America, weighed the available research and supported the conclusion that gay and lesbian parents are as effective as heterosexual parents in raising children." And they quoted from the official policy of the American Psychological Association; in that group's words, "There is no scientific evidence that parenting effectiveness is related to parental sexual orientation: Lesbian and gay parents are as likely as heterosexual parents to provide supportive and healthy environments for children."
Just as importantly, the judges did another "strict constructionist" test; they looked at the actual Iowa civil marriage law...and discovered that there was no language barring heterosexuals with bad parenting histories. As the judges put it, Iowa law "does not exclude from marriage other groups of parents — such as child abusers, sexual predators, parents neglecting to provide child support, and violent felons — that are undeniably less than optimal parents." Ergo, on what rational basis should gays be denied less constitutional protection than those characters?
In the final pages of the ruling, meanwhile, these "judicial tyrants" tried to speak directly to the faith-based gay marriage critics:
"(C)ivil marriage must be judged under our constitutional standards of equal protection and not under religious doctrines or the religious views of individuals. This approach does not disrespect or denigrate the religious views of many Iowans who may strongly believe in marriage as a dual-gender union, but considers, as we must, only the constitutional rights of all people, as expressed by the promise of equal protection for all. We are not permitted to do less and would damage our constitution immeasurably by trying to do more."
Not surprisingly, there is no evidence that the judges have pried open any closed minds.
I won't hazard a guess on how this ruling might play out in the broader political community over the next few years - beyond noting the obvious, which is that conservative politicians are bound to ratchet up their campaigns against allegedly rogue judges. All that's certain, for the foreseeable future, is that this ruling (and its reasoning) will add momentum to the gay marriage movement, and that gays in the heartland who are seeking to tie the knot may well feel inspired to borrow a few lines from that old baseball movie, Field of Dreams:
"Is this heaven?"
"No. It's Iowa."
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liberal, they already run over our property rights with eminent domain.— EL Zorro- Master Dreamz, I would like to introduce you to Terry Hamilton... http://online.logcabin.org/— Phrossty
- Master Dreamz are you saying that Republicans don't want black or gay people to exist?— jwad56
- Who cares? If gay people want to marry, more power to them. Close minded bigots are boring and bring nothing to the table.— jettro
- Tired, Master Dreamz & Liberal and others - thank you and keep responding, keep answering fanaticism with reasoning as it applies to the Constitution and basic humanity. This was a well-written article which explains the judge's legal decision and does it with unusual clarity. That clarity won't help those people who are terrified of gay marriage or choice for women. From their perspective the societal and/or religious consequences of marriage for gays is catastrophic. Time is the only cure for deeply-instilled fears of the Other. Such people, like all of us when we hold strong views backed by our emotional baggage, do not respond to reasoning or legal arguments, even when they pertain to something as basic as Constitutional principles. Still, the rest of us desperately need to hear often-repeated arguments based upon reason, because 1) the voices of religious & political fanaticism - via some of our legislators & the media hacks that work daily to destroy real dialogue - have drowned out alternative secular & moderate religious voices in public discourse WAY too much; 2) government-supported religious doctrine is a deadly threat to the individual's freedom of conscience; and 3) arguments that respond to people's reason is the ONLY weapon a secular Constitution has to protect our nation against collapse into the total insanity of institutionalized hate.— Simone
- JGD84, I spoke of suffrage and segregation, not of slavery. "Who gets the last say" becomes circular, doesn't it, in that THE PEOPLE voted for the judges who made the decision. In doing so, did they not understand these judges would then decide on issues coming before the bench? Who decides which issues go directly to the people instead of before these representatives elected by the people?— WJones
- How very "Christian" of all you Rushpublicans and other cancervatives to spew your venom against a group of people who are only asking to be treated with the same level of dignity as every other citizen of this country. As I recall, that's the same hatred that was spewed towards those of mixed races who wanted to marry before the US Supreme Court had to step in and make things right. All you alleged Christians need to ask yourself "who would Jesus hate?" And then when you have the answer, go out and live your lives as true Christians, or as heretical hypocrites.— The Dogfather
- jwad, if you think the religious conservative wing of Republicans want gays (I am not sure where you get blacks from in my comment when I was referring to a black man joining the Klan) to exist, you are delusional. Do they want to see them killed? For the most part, no. But, how many think that being gay is something that can be "cured"? Or, is a choice? Not allowing gay people to wed is akin to not allowing a woman to have control over her body -- at their very core, both stances seek to control someone else -- right, wrong or indifferent, bottom line that is what they seek to do. Our political system, when it works correctly, allows the minority to have a voice and not be controlled unjustly by the majority. And, that is what the Iowa justices have done. Again, I ask you, if you are against gay marriage, why? How does it effect you? And, please leave religion out of it. You can have the values, and stances; but, no one else should have to follow your religion -- that is what the Taliban is doing in Pakistan right now, n'est pas? Just tell me why it is of any matter to you who marries whom.— Master Dreamz
- It's the same old story. When the courts rule against conservatives, the judges are judicial activists. When the courts act as judicial activists in support of a conservative position, they are just following the constitution. Such hypocrits. BTW, great blog by Polman today. You won't find this story as well researched and explained in many, if any, other places. Most will confine the story to the "rightes say," "the lefties say" ... Be glad Polman does your work for you.— Djoko Pritza
- If homosexuals want all the rights and responsibilities of marriage, I say let them be as miserable as the rest of us:) Who am I to say no? Though, they could just call it a civil union, with all the rights of marriage, and probably be done with this fight already. Yet again, the fanatics on each side fail to reach a compromise:( And when they want to end their marriage, let them go to court and split the assets just like the rest of us! That will teach them:)— NEPhilly
- WJones, 'circular' in a very distant sense. You could argue that the German people in a 'circular way' approved of what Hitler did. However, how many German's really 'approved' of slaughtering millions of people? Not too many, I would bet! In my opinion, this topic is about the gay community trying to force people to view their choice as the same as traditional marriage. This isn't about legal protections... which can be accomplished in different ways. This is the 'tyranny of the minorities' at its worst.— JGD84
- Master Dreamz you can read my previous comments it does not matter to me at all. I believe I misread your comment before.— jwad56
- NEPhilly, I don't mean to bust your b8alls :-) but if marriage is such a miserable thing, why does the right (not you) battle so hard to preseve it for only one man and one woman? Why not beg their foes to take it up? I think most who oppose gay marriage do so out of fear -- of the unknown; of their own identity; of the realization that much of what they've been taught, and based their lives upon, is false. And they can't even legitimately find relief in scripture, as that fig leap is easily blown away. They need help.— Djoko Pritza
- el zorro, please read the 5th amendment and check out the history of eminent domain throughout the ages before bringing up the topic.— liberal
- The easiest way for the religious right to get its way on gay marriage would be to eliminate the legal privileges and benefits given by the states and federal government to married people. Then-and only then--the issue would be irrelevant.— liberal
Cited by the Columbia Journalism Review as one of the nation's top political reporters, and lauded by the ABC News political website as "one of the finest political journalists of his generation," Dick Polman is a national political columnist at the Philadelphia Inquirer. He is on the full-time faculty at the University of Pennsylvania, as "writer in residence." Dick has been a frequent guest on C-Span, MSNBC, CNN, NPR and the BBC. He covered the 1992, 1996, 2000, and 2004 presidential campaigns.
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