Notes From Babel

Iowa Joins in the Destruction of the Rule of Law

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Iowa’s Supreme Court today withdrew from its citizens their civic right to determine their state’s policy regarding marriage, holding that sexual orientation was not an “important respect” of that institution’s makeup. [PDF of the opinion.] Regardless of how you weigh in on the issue of gay marriage, the opinion is an affront to our nation’s tradition of justice. It is a superficial power grab designed merely to advance a moral conclusion through an abuse of legal process. (If you are new to the evaluation of judicial opinions, this is the very characterization we use now when talking about the Dred Scott decision, now haled as one of the worst, if not the worst, opinion in the Supreme Court’s history.)

How superficial is the Court’s reasoning? Iowa Code section 595.2(1) provides “[o]nly a marriage between a male and a female is valid.” According to the Court, “The legislature, in carrying out its constitutional role to make public policy decisions, enacted a law that effectively excludes gay and lesbian people from the institution of civil marriage.” (p. 13.) But don’t forget polygamists and kissing cousins. If we were truly using outcome-neutral legal reasoning, we have to recognize that these groups are also excluded. And there is a simple reason for this exclusion: people don’t like it. They think it’s icky. If and when they ever stop thinking it’s icky, and if there’s a critical mass of such folks clamoring for their “right to marry,” they’ll likely get it.

Many people still think gay marriage is icky. The tide is shifting in that area, but the scales haven’t tipped yet. But there is no “equal protection” violation in refusing to recognize a marriage between a couple of men any more than there is in refusing to recognize a marriage between a couple of siblings, a couple of 14-year-olds, or a quartet of what-have-you’s.

Let’s see where Iowa’s precedent would leads, by substituting the aforementioned groups in the following language from the opinion:

Thus, the right of a gay or lesbian person [or a polygamist, or committed cousins] under the marriage statute to enter into a civil marriage only with a person of the opposite sex [or just one other person, or just another unrelated person] is no right at all. Under such a law, gay or lesbian individuals [or a polygamist, or committed cousins] cannot simultaneously fulfill their deeply felt need for a committed personal relationship, as influenced by their sexual orientation, and gain the civil status and attendant benefits granted by the statute.

Of course, Iowa’s decision is not meant to be read as judicial precedent. It is simply a statement of law – more like a statute. Statutes are fine, when they are passed by a body of representatives duly elected by the people. But not when they are handed down by judges.

The Court concludes that the “plaintiffs are similarly situated in every important respect, but for their sexual orientation.” (p. 28.) Who decides which respects are “important”? Why, the folks in black robes. You can keep your ballots. Put them in a scrapbook to show your grandkids how our nation decided policy matters before judges decided they were better at it.

I would prefer very much that lawyers and anyone else purporting to make legal arguments to advance moral positions just stop it. This is not what legal argumentation is for. As someone who cares very much about the rule of law and the proper exercise of the democratic function in our republic, and markedly less about whether gay marriage is actually sanctioned, I dislike having to rant about the wrong-headedness of gay marriage advocates. I have several gay friends, and my wife and I enjoy visiting with them, particularly at Christmas parties and summer barbecues. I worry that someone would misinterpret my advocacy for the rule of law into a misguided basis of some accusation of “hate-mongering.”

The fact is, it is a moral issue. Moral issues are decided in our society at the ballot, not at the courthouse. Iowa’s high court handed down an abysmal decision. Not because its outcome is one that opponents of gay marriage don’t like, but because it is reached by a terrible subversion of the rule of law and legal argumentation. These things may seem stodgy and trivial to those who just want their “rights,” but without them, none of our rights have any meaning.

Please stop destroying the rule of law.

[Update: Some discussion on these points at Dispatches From The Culture Wars.]

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Written by Tim Kowal

April 4, 2009 at 4:17 am

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