Iowa

Today, the Iowa Supreme Court declared that the state's current ban on same-sex marriage is unconstitutional, opening the way for gay couples in that state to marry. I, for one, welcome the Court's decision, and being a temporary Iowan for a good long while, feel a special twinge of pride at what I would consider a courageous decision.

However, I'm troubled by quotes such as the following by Iowa state representative Steve King

This is an unconstitutional ruling and another example of activist judges molding the Constitution to achieve their personal political ends. Iowa law says that marriage is between one man and one woman. If judges believe the Iowa legislature should grant same sex marriage, they should resign from their positions and run for office, not legislate from the bench.

Now it is the Iowa legislature’s responsibility to pass the Marriage Amendment to the Iowa Constitution, clarifying that marriage is between one man and one woman, to give the power that the Supreme Court has arrogated to itself back to the people of Iowa. Along with a constitutional amendment, the legislature must also enact marriage license residency requirements so that Iowa does not become the gay marriage Mecca due to the Supreme Court’s latest experiment in social engineering.

In my capacity as a budding constitutional lawyer/confused student, I've picked up a couple of things. First of all, this term "activist" puzzles me. To label someone "activist" is merely to say that you disagree with what they are saying. It's a meaningless term, wielded with incredible simplicity by opposing politicians, who do the public a disservice via their disingenuous linguistics.

Now, the Iowa court was interpreting their state constitution, which is most likely based on the federal constitution. I had an interesting exchange a while ago, where a conservative individual I knew asked me whether I interpreted the Constitution the "right way" or the "activist way." Apparently, the "right way" involves applying the plain meaning of the document as the founders would have intended it. And originalism is (surprisingly) still a somewhat accepted view of interpretation.

However, the most important case in American constitutional history, McCulloch v. Maryland, decided by Chief Justice John Marshall, makes the point that a constitution does not have the detail and complexity of a legal code. It is a document that is inherently meant to be interpreted. It is a document that the founders knew would act as a blueprint for ages to come. Accordingly, it would be foolish to impose upon 21st century America the socio-political mores of late 18th century America.

Another interesting aspect of the above quote is that Mr. King claims that the Court is attempting to mold the constitution to meet their own political agenda. Of course, he neglects to mention that the concept of marriage appears nowhere in the Iowa Constitution. The ban is a statutory scheme, enacted by the Legislature. One of the functions of the judiciary is to act as a check upon the passions of the people, represented through the Legislature. That is why Supreme Court justices are appointed for life terms, as the security of their tenure supposedly makes them immune from present passions in order to interpret the law fairly. The present ruling is not "legislating from the bench." It's fairly interpreting the law, as the Court should do.

There's so much unintelligent muck being thrown about by opponents of same-sex marriage, claiming that same-sex marriage will lead to the degeneration of the traditional family, the destruction of societal mores, etc. Apparently, the constitution is meant to protect against such moral degradation. However, you never hear opponents of same-sex marriage mention the importance of protecting the minority against a potential tyranny of the majority.

Let's consider the facts. By all accounts, gay couples in this country constitute a minority. If my memory serves me right, the Court's opinion said there were some 5,800 gay couples in Iowa, which is a state of several million. Those several million are for the most part, free to marry as they wish. Those 5,800 are not. Instead, they are hampered by a law expounding a traditionalist worldview that has been receding ever since the 1960's. Opponents of same-sex marriage wouldn't dare to say that the Supreme Court was incorrect when it struck down bans on marriages between different races. I think that is fascinating. Miscegenation laws long held sway in the American South. Similar to bans on same-sex marriage, they excluded a certain class of people from marriage based on an arbitrary distinction that came from traditional (racist) views. As attitudes changed in this country, the judiciary chose to reflect that change on a constitutional level by eliminating miscegenation statutes. My question to those opponents is, why is the present issue of same-sex marriage any different? Someone please explain it to me.

Using the favourite term of conservative commentators, to me, the more appropriate use of "activist" would be to refer to those who insist upon defining marriage between a man and a woman. This obsession that same-sex marriage poses some sort of threat to the rest of the country is a tired tactic of fear. When confronted by something they don't understand, instead of attempting to understand, the Right in this country has reacted by appealing to base motivations and fearmongering. It is very easy to demonize gay couples as heathens when you refuse to engage with them. It's very easy to convince folks that all gay people spend their days dancing rumba in mesh shirts when you don't show the reality of couples in committed relationships.

Now, I'm not gay, but I'm proud of this ruling. Why? Because it is relational to the American experience of attempting to create a more perfect union for the whole of our citizens. We suffered a long and dark night of slavery and segregation, which was tossed aside (still working on the rest of it though). We've made great strides in gender equalization. In my view, this is merely the next step. And as a person who has a few gay friends, I'm happy that they will enjoy the same rights that I do.

At least in Iowa.