Home > Judicial Activism, Same Sex Marriage > What people don’t know about Iowa

What people don’t know about Iowa

October 28th, 2010

I follow changes in the marriage debate across the country and around the world. I’m often surprised as I travel around that not everyone follows these things as closely as I do. So, one of my jobs is keeping ordinary people informed about strange goings-on in other parts of the country.

For instance, my audience in Kalamazoo Michigan last week was generally unaware that Iowa had same sex marriage. Yes, says I, same sex marriage in Iowa of all places. Judges did it in 2009 in a case called Varnum v Brien. I think it was a lousy decision.

So for the benefit of those new readers who joined the Ruth blog and the newsletter list in the last week or so, I am linking to a couple of articles I wrote about the Iowa same sex marriage decision when it was handed down. One of my articles was called “The Institution formerly Known as Marriage,” and was published by the Witherspoon Institute. The other was called, “How Marriage Lost in Iowa,” and was published in the National Catholic Register. If you have friends in Iowa, go ahead and forward these articles to them. Get their opinion of these articles and of the decision. I’d love to hear from some Hawkeyes about this!

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  1. Sean
    October 29th, 2010 at 06:11 | #1

    I wish people who disagree with the Varnum decision would explain their objection to it in terms of legal reasoning. I realize lots of people don’t like the decision because of the outcome it created, but to say it was a lousy decision lacks merit without some explanation of one’s belief that the legal reasoning was flawed. Varnum was a legal decision, based on Iowa’s constitution, not a social decision based on maintaining the status quo, or Straight Supremacy, or homophobia.

  2. Richard Munro
    October 29th, 2010 at 09:21 | #2

    creeping Judicial Activism and a complete disregard for popular sovereignty. Digusting. We need a Constitutional Amendment.

  3. Sean
    October 29th, 2010 at 15:11 | #3

    “For instance, my audience in Kalamazoo Michigan last week was generally unaware that Iowa had same sex marriage.”

    This is a great point: a bunch of people don’t even know that same-sex marriage is legal in some places! And that’s how unremarkable the issue of marriage equality is. If certain conservative and religious groups hadn’t turned marriage into a political wedge issue, states would have quietly legalized same-sex marriage and nobody would have cared.

  4. Leo
    October 29th, 2010 at 15:15 | #4

    Sean,

    See, for example,
    Baker v. Nelson
    Citizens for Equal Protection v. Bruning
    Wilson v. Ake
    Morrison v. Sandler
    Hernandez v. Robles

    for contrary opinions on essentially the same issues. The Iowa constitution does not seem to contain substantially different wording that other states or the federal government on this issue. These decisions are rightly called opinions. They have legal standing, but they represent individual opinions in grappling with legal issues. In less that a week, the citizens of Iowa will voice their opinions. Judges are not kings or princes. They aren’t even supposed to be legislators. In America government derives its just powers from the consent of the governed.

  5. Sean
    October 29th, 2010 at 16:45 | #5

    Leo, have you read the Iowa decision? What in it do you disagree with, specifically? I realize other courts have ruled that it’s ok to discriminate against gay couples but how does that make it right? I love that the Iowa Supreme Court ruled long before the Supreme Court did that people couldn’t own other people. Were they wrong when they ruled that way?

    With the horribly ill-advised jihad against three Iowa judges and their retention, I would love for someone to explain what about their UNANIMOUS decision is so off-base. If you advocate that someone ought to lose their job over something, you should know what it is they said before you make such a demand.

  6. Sean
    October 29th, 2010 at 18:28 | #6

    I love this common-sense advice from an 88-year-old:

    “I don’t care who anybody sleeps with. If a couple has been together all that time—and there are gay relationships that are more solid than some heterosexual ones—I think it’s fine if they want to get married. I don’t know how people can get so anti-something. Mind your own business, take care of your affairs, and don’t worry about other people so much.”

    Betty White, in Parade magazine

  7. Leo
    October 29th, 2010 at 21:30 | #7

    Sean, what I realize is that other courts have held that the traditional definition of marriage is NOT discrimination and that it is not OK to change the definition of the institution without the approval of the people. Different jurists have had different opinions.

    What matters is not my opinion, but the opinion of Iowans. If they like the decision, that is fine with me, if not, that is fine with me, too. If they vote the judges in or out, that is their right and is OK by me.

    What you can a jihad most Americans call an election. Since I don’t live in Iowa, I don’t vote in their elections. Their decision doesn’t affect me, but it does affect Iowans, and Iowans get to vote, whether you like it or not. If you live in Iowa, you can vote to retain the judges. Be my guest. If you are registered to vote in Iowa, it is your right to do so, but you only get one vote. If Betty White lives in Iowa, she gets to cast one vote there, too. One man, one vote, and we agree to abide by the results of the election. Some of the candidates I have voted for in the state where I live will win, some will lose. That is the way it goes in every election. Here the people are sovereign.

    I have great faith in Iowans. Iowa was never a slave state and never a Jim Crow state. Common sense people, rather like the people of Maine, I suspect. As Maine goes, so goes the nation, right?

  8. Sean
    October 30th, 2010 at 05:56 | #8

    “What matters is not my opinion, but the opinion of Iowans.”

    Actually, the people’s opinion may not be relevant, or the last word, if their opinion creates an unconstitutional law. Neither the legislature nor the people can create a law that violates the rights of a US citizen. One right that US citizens have is the right of equal protection, that is, to be treated on an equal basis by the laws.

    “If they like the decision, that is fine with me, if not, that is fine with me, too. If they vote the judges in or out, that is their right and is OK by me.”

    But it shouldn’t be ok with you. The role of judges isn’t to reach decisions that please the people but rather, make decisions that comport with the respective constitution (state or national) they are sworn to uphold. If they lose their jobs because they made a decision that didn’t please the majority, we’ve eviscerated our legal system: we now have a legal system based on the rule of men, instead of our current rule of law. Let’s not redefine our nation’s legal system, at least not without getting everyone’s permission!

    Conservatives generally, and NOM in particular, have done a huge disservice in spreading the false notion that judges who issue rulings we don’t like should be removed. Calling them “activist” judges is a smear and in my mind, borders on treason. If you want to overthrow our nation’s legal system, be honest about it. Otherwise, be glad you live in a country where there’s some group, judges, generally free from changing political winds.

    “Since I don’t live in Iowa, I don’t vote in their elections. Their decision doesn’t affect me, but it does affect Iowans, and Iowans get to vote, whether you like it or not.”

    I wish NOM would adopt your viewpoint! They are outsiders, too, and they’re pouring money into Iowa in an attempt to get three judges removed!

  9. Chairm
    October 30th, 2010 at 22:17 | #9

    SSMers generally do not understand the Iowa court’s pro-SSM opinion (i.e. its offered legal reasoning) and so any SSMer here who pretends to understand it ought to demonstrate that by plainly stating the pivotal point upon which the court’s opinion convinced the SSMer that this reasoning was correct.

    Note: although this pro-SSM opinion is lengthy, it discusses a predrawn conclusion rather than sound judicial reasoning in search of a reasonable result. Hence SSMers typically support any pro-SSM court opinion’s result rather than its reasoning. This will be illustrated by the SSMers who comment under the original blogpost at the top of this discussion.

  10. Leo
    October 30th, 2010 at 22:38 | #10

    As everyone who reads this blog is well aware, different distinguished jurists across the country have reached different opinions on the issues at hand, declaring that the traditional definition of marriage does not violate the rights of citizens. The U.S. Supreme Court is likely to be closely divided on the issue. And as Finley Peter Dunne said, “the Supreme Court follows the election returns.”

    Most every tyranny has courts. The difference between a democracy and a tyranny is not the existence of courts, but the ability of the people to influence their courts. If the courts of Iowa are sufficiently out of synch with the people, and if the law allows a vote on judicial retention, which in Iowa it does, it is altogether fitting and proper for the people to make their opinions felt at the ballot box. This is not mob rule, as it would take at least two election cycles to reform a majority of the court, and the new justices would have to be appointed and confirmed in the constitutional manner by their elected officials. The result could be a new opinion on what is or is not constitutional, and it would be entirely within the constitutional framework the citizens of Iowa have agreed upon.

    Whether out of state money should be allowed in Iowa elections is an interesting question, but law and tradition allow it and allow advocacy equally on both sides of any election. It happens every election cycle. The U.S. Supreme Court in the Citizens United decision struck down laws that would inhibit free speech and associated contributions in the name of election laws. You may disagree with the court on that, and you have the right to try to get that decision changed by constitutional means. Liberals and conservatives when they don’t like a judicial ruling both try very hard to overturn it by constitutional means. That is how the law evolves.

    Democracy is not treason. A difference of opinion is not a smear. Thomas Jefferson wrote at length about the dangers of judicial tyranny. See http://www.amazon.com/Judicial-Tyranny-New-Kings-America/dp/0975345567
    for a modern discussion.

    I believe in popular sovereignty and self-determination of Iowa. If democracy is good for Iraq, it certainly is good for Iowa. I never thought advocating for democracy in Iowa would be called treason.

  11. Sean
    October 31st, 2010 at 11:12 | #11

    “SSMers generally do not understand the Iowa court’s pro-SSM opinion”

    Actually, it is the OSMers who don’t appear to understand the decision. It’s readily available online, and is only 69 pages long. Although other courts have written similarly reasoned opinions and dissents (and the Iowa court draws wording directly from the Connecticut Supreme Court’s majority opinion), this ruling is especially well-written and easy for the lay person to understand.

    “plainly stating the pivotal point upon which the court’s opinion convinced the SSMer that this reasoning was correct.”

    There was no single point for the decision. The court looked at the state’s reasons for wanting to continue to discriminate against same-sex couples, and found those reasons lacking social purpose or legal standing. If you actually read the decision, you might question your own position on this issue and we wouldn’t want that now, would we?

    I challenge the OSMers to actually read the decision and see what they think is wrong with it.

  12. Sean
    October 31st, 2010 at 11:29 | #12

    “different distinguished jurists across the country have reached different opinions on the issues at hand, declaring that the traditional definition of marriage does not violate the rights of citizens.”

    That’s not actually true. What some courts have said is that states have an interest in promoting procreation, and therefore there is a rational public purpose to limiting marriage to opposite-sex couples. In other words, courts admit that gays and lesbians are being denied something, but the public interest outweighs their harm.

    Now that courts are demanding that evidence for claims that prohibiting same-sex marriage furthers this state interest (Connecticut, Iowa, 9th Circuit), and there is no evidence, I wouldn’t rely on this claim much longer as a bulwark against legalized same-sex marriage.

    “The U.S. Supreme Court is likely to be closely divided on the issue.”

    A circumstance itself that should give us pause as to whether denying marriage to gays and lesbians is not just constitutionally impermissible but socially advisable. Interestingly, not one court has ruled unanimously that prohibiting same-sex marriage is constitutionally impermissible, and several have ruled unanimously that it isn’t constitutionally permissible.

    “The difference between a democracy and a tyranny is not the existence of courts, but the ability of the people to influence their courts”

    You dove off the cliff on this one! The opposite is true. Why do you think the statue of lady justice has a blindfold on? We are a nation of laws, not men. You are a striking example of the kind of damage groups like NOM do: convincing people that judges should be punished for interpreting the law in a way that a majority dislikes. This is un-American. Did you ever think about the fact that Iowa’s decision in “Varney” was unanimous?! All judges interpreted the state’s constitution as protecting the right of gay and lesbian Iowans to have equal marriage rights as straight Iowans. Unanimous decisions are uncommon and when one comes along, it is safe to say the law is clear on the issue.

    “If the courts of Iowa are sufficiently out of synch with the people…”

    Sweet Jesus. No, the courts aren’t supposed to be in “synch” with the people but rather with the law, specifically the constitution of the jurisdiction they are presiding over.

    “Whether out of state money should be allowed in Iowa elections is an interesting question, but law and tradition allow it and allow advocacy equally on both sides of any election.”

    But it’s rather hypocritical to want “the people” to rule, however misguided that notion is, and then pour in money from out of state so that the people of Iowa, whose constitution is being questioned, are subordinated to out-of-state interests!

    “Thomas Jefferson wrote at length about the dangers of judicial tyranny.”

    Jefferson worried about the judiciary usurping the power of the other branches of government. He may have worried about repeated offenses of some kind. He would never have advised the people to remove a judge for a decision they didn’t like.

  13. Chairm
    October 31st, 2010 at 19:16 | #13

    I think people on all sides of the discussion, including those who may be sitting on the fence more or less, to read the pro-SSM court opinions and contrast these with the court opinions that did not decide in favor of imposing SSM.

    The challenge remains on the table for those who agree with the Iowa pro-SSM opinion. If you cannot detect a pivotal point in the offered reasoning, then, you do not understand it. And if you cannot put your finger on such a point whereby you became convinced that this offering reasoning is correct, then, you cannot farily claim to agree with it anyway.

    The SSMer above illustrated what I mean.

    The onus is on the SSM side, under rational basis review, and not on the defenders of the marriage law. That the SSMer turned that upside down is just one example of how the abuse of judicial review has become indispensable to the SSM campaign.

  14. Chairm
    October 31st, 2010 at 19:25 | #14

    I agree with you, Leo, that the rule of law is at issue; the principles of self-governance support the popular vote system on the retention of judges. Just as the citizen must exercise restraint when participating in the democratic process, the citizen who serves as judge must exercise judicial restraint. There is no guarantee of perfection in either these cases. However, there are checks and balances. And the collective wisdom of diverse citzens-as-voters provides a good check and a good balance to redress the abuse of judicial review of this or that particular judge.

    A vote to not retain is not a vote that would eraise the abusive pro-SSM court opinion. However, there are other checks and balances that can lead to the restoration of marriage and the overturning of the unjust SSM merger.

    SSMers don’t understand that the judiciary is Government; but that the people have a government, not the other way around.

  15. Sean
    November 1st, 2010 at 05:43 | #15

    “If you cannot detect a pivotal point in the offered reasoning, then, you do not understand it.”

    I tend to be suspicious of these kinds of “if….then” statements. Like in the OJ trial where Johnny Cochran implored the jury, “if the glove doesn’t fit, you must acquit!” I’ve read the Iowa decision several times and it is well-reasoned and simply goes down the list of the state’s reasons for wanting to prohibit same-sex marriage and the court rather handily picks apart its reasons. It is possible that the state’s defense team didn’t really have its heart in it, but of course, NOM is going after the judges not the state defense team!

    The decision was unanimous, a fact that says to me that this is an open and shut case. Because Iowa is a moderate state, and the decision was unanimous, this case carries enormous weight. I think this decision will be more influential than Massachusetts in convincing other states to drop marriage discrimination laws.

    I realize OSMers aren’t happy with the decision but it is what it is. I would like to know what reasoning they think is faulty. What’s the faulty pivot point for you OSMers?

    “SSMers don’t understand that the judiciary is Government; but that the people have a government, not the other way around.”

    OSMers don’t understand that the judiciary interprets laws as to their constitutionality. They are not, and should, be beholden to the will of the people. If they were, it might still be illegal for blacks and whites to marry. Courts can’t let a majority give itself a right, and deny that same right to a minority.

  16. Leo
    November 1st, 2010 at 12:28 | #16

    If we imagine any law or any executive order or any judicial pronouncement is irrevocable, we are kidding ourselves. Nothing we do is like the law of the Medes and the Persians which supposedly could never be altered.

    Roe v. Wade is settled law, but Baker v. Nelson is supposedly not?

    Test cases are advanced in precisely those jurisdictions where the judges are most likely to ignore precedent and the will of the legislature and the people. (Do you imagine the Lambda folks all live in Iowa and aren’t outsiders putting their resources into Iowa? ) But unless we make the judges sovereigns unto themselves, the people of Iowa ultimately have the power to define their own constitutions and determine which rights are inalienable and which rights are not. We can’t allow a minority of judges to invent new rights if the people don’t believe they have ceded that power to their new sovereign rulers and masters.

    If the Supreme Court upholds Baker v. Nelson, and everyone agrees there are four solid votes for that, I suspect Sean to work very hard to overturn that decision by any legal means rather than accept that decision as permanently binding. Every appeal from the Perry Case that has reached the Supreme Court was won by the defenders of Prop 8 on a 5-4 basis. Maybe the court is sending a message. Maybe the Iowa voters will send a message.

    Freedom, democracy, and self-determination for Iowa.

    Tomorrow we shall see if the citizens of Iowa agree that this is an open and shut case. If voted out, the justices are unlikely to declare the election unconstitutional. If new justices see the case differently, then maybe it wasn’t open and shut after all, just a case of closed minds on the bench. Not only are the judges on the ballot, but so are the governor and the members of the legislature. All three branches have to answer to the people.

  17. Sean
    November 1st, 2010 at 17:53 | #17

    “Do you imagine the Lambda folks all live in Iowa and aren’t outsiders putting their resources into Iowa?”

    But they aren’t trying to convince Iowans to vote to damage their legal system! NOM is an outside entity specifically interfering in Iowa politics to the detriment of Iowans. Persuading voters that judges are supposed to issue rulings that please the majority is heresy and, on some level, treasonous. It undermines our very foundation of government and separation of powers. I thought you conservatives were all about tradition??? What about the tradition of an independent judiciary?

    Just when I thought groups like NOM couldn’t do any more damage than they already do, they do. It’s shocking, really. And there are actually people who think they’re right!

    “the people of Iowa ultimately have the power to define their own constitution”

    Straw man alert! No one is saying Iowans can’t change their constitution! But in its current state, it contains an equal protection clause that guarantees ALL Iowans, even gay ones (!) the same rights! What is wrong with you people????

    “We can’t allow a minority of judges to invent new rights…”

    Oy vey. Iowa’s equal protection clause is nothing new. It was adopted some time ago, although I don’t know the exact date. The right to equal protection in Iowa is not a new right.

    “Tomorrow we shall see if the citizens of Iowa agree that this is an open and shut case.”

    Well obviously they don’t. They know their state’s constitution, or the role of the judiciary, evidently. That this retention vote on taken on a revenge role is a sad day for an otherwise pleasant state.

    “If new justices see the case differently, then maybe it wasn’t open and shut after all”

    What are you talking about? New justices can’t change the ruling on same-sex marriage. It’s a done deal, unless and until Iowans change their constitution.

    “All three branches have to answer to the people.”

    Oh, nevermind.

  18. Chairm
    November 1st, 2010 at 18:50 | #18

    Predictably, no SSMer has the courage to state the pivotal point that convinced him, or her, that the pro-SSM opinion (its legal reasoning) was correct.

    By the opinion’s own rules of attack on marriage, there is no rational purpose for SSM. The reasoning, such as it is, self-implodes upon contact with the principles of judicial review.

    It also contradicts other pro-SSM court opinions on key points. That is okay with SSMers who are much happier with end-gaming via identity politics, even by judges, rather than sound legal reasoning.

  19. Mark
    November 1st, 2010 at 20:23 | #19

    Chairm: “By the opinion’s own rules of attack on marriage, there is no rational purpose for SSM.”

    Chairm, open your eyes, and your heart. The purpose of SSM is the same as OSM: two people who wish to form a relationship together, to blend their lives and future, to possibly raise children or not, to strive to be more together than either can be separately. That is the reason for marriage, be it SSM or OSM.

  20. Leo
    November 1st, 2010 at 22:00 | #20

    No court ruling that the gay lobby doesn’t like is ever considered a done deal. They just keep bringing up new cases until a new court decides the old decision was “decided improperly.” Stare decisis is only invoked after a decision they like.

    No election the gay lobby doesn’t like is ever considered a done deal. They wait for the next election or get a judge to overrun the vote of the people.

    Tomorrow the citizens of Iowa, not Sean, get to determine if they wish what exactly works to the detriment of Iowans and whether traditional marriage constitutes an unconstitutional inequality or not, whether it violates equal protection or not.

    The Iowa constitution gives Iowans the right to retain their judges in office or not. The citizens of Iowa should vote their conscience on the matter. The judiciary will still be considerably isolated from a single vote, as only a portion of the court is up the retention and new judges would have to be appointed through the usual constitutional means. It will take years to assemble a new, more conservative court.

    But the legislature and governor are also up for election, and we will see if the new legislature takes up the issue of a constitution amendment, which is potentially a faster way to restore traditional marriage than the evolution of the court in a more conservative direction. It is the right of the people to determine their own government and to determine what is in their own best interests after weighing the arguments on both sides. One wonders why Sean trusts the good people of Iowa so little, and why he has so little faith in self-government. Some of the candidates I voted for and contributed to will likely lose tomorrow. I will not be happy about that, but I believe in democracy.

  21. Sean
    November 2nd, 2010 at 04:30 | #21

    “No court ruling that the gay lobby doesn’t like is ever considered a done deal. They just keep bringing up new cases until a new court decides the old decision was “decided improperly.” Stare decisis is only invoked after a decision they like.”

    I hear ya! I don’t know what is up with gay people demanding to be treated as equals in society! Sure, they pay the same amount of taxes as straight people, and have to follow all the same rules, even though they don’t get the same rights and are disproportionately victimized by housing and employment discrimination, and violence.

    Why can’t gay Americans understand their place in society?? Oh, and black people are uppity and demanding, too.

    Leo, you continue to hold a fantastic view of the role of the judiciary in our legal system. It is not to rubberstamp the prejudices of the majority. When you find yourself in the minority, with your own fundamental rights in jeopardy, you will find it unsatisfying to know that judges will rule to take away your rights in order to please the majority.

    The damage that organizations like NOM have done to American families and to our judiciary is simply beyond the pale. I consider them in the same league as the KKK, possibly more damaging, because of their flair for tapping into peoples’ prejudices and making their sick and twisted viewpoints seem rational and all-American, when in fact, they are the opposite. George Orwell would be please at how NOM has turned logic on its head and falsely portrayed our legal system. When the history of this issue is written, I think Maggie Gallagher and Brian Brown are not exactly going to be seen as great American patriots!

  22. Sean
    November 2nd, 2010 at 04:32 | #22

    “It is the right of the people to determine their own government and to determine what is in their own best interests after weighing the arguments on both sides.”

    Exactly! And the people chose a representative form of government, with a system of checks and balances, including a judicial system that determines whether the legislature has created laws that are constitutional or not. I resent redefining our nation’s judicial branch as a system that rubber-stamps the will of the people, even if that will violates the civil rights of a minority.

    I love how marriage “traditionalists” complain about the redefinition of marriage, while being perfectly happy to redefine the nation’s judiciary! Hypocrites!!!

  23. Mark
    November 2nd, 2010 at 07:37 | #23

    Leo: So, after saying how terrible it is for the “gay lobby” to not let any court decision nor election stop them from getting their equal rights, you cheer that people can vote to change things. Isn’t that the same thing as saying: “No court ruling that the [anti - gay] lobby doesn’t like is ever considered a done deal. They just keep bringing up new cases until a new court decides the old decision was “decided improperly.”

    “Some of the candidates I voted for and contributed to will likely lose tomorrow. I will not be happy about that, but I believe in democracy.”

    But, my guess would be that if some of your basic rights were removed by a majority (even a slim one) that you would be fighting to get those rights back. I doubt you would be happy to sit back and just “believe in democracy”. But that is an easy thing to say if your rights are not threatened.

  24. Leo
    November 3rd, 2010 at 06:09 | #24

    Genderless marriage is NOT a fundamental, basic, or inalienable right. It is simply not a right at all. The traditional definition of marriage was everywhere accepted in America in 1776, and every time the issue has been put to the people since, they have declared for the traditional definition. Popular sovereignty IS a fundamental, basic, and inalienable right.

    When a judge legislates from the bench, he violates the RIGHTS of the legislature. When a judge or public official imperiously disregards both precedent and the will of the people, even going so far as to neuter the votes of millions (as in California), he violates the reasonable expectations and sovereign RIGHTS of the people. It is basic right to be able to vote and to have your vote counted. Rights are inalienable when they are self-evident to the people.

    The citizens of Iowa have spoken clearly, not only on judicial retention, but at all levels of their state government. Gradually, the will of the people will assert itself, even in Iowa. A hundred years ago the progressive movement stood for popular government against the power of the few. The progressive movement and the Democratic Party need to return to their democratic roots. Here the people rule. That is their right.

  25. Sean
    November 3rd, 2010 at 08:59 | #25

    “Genderless marriage is NOT a fundamental, basic, or inalienable right.”

    Not but marriage is a fundamental right, according to the Supreme Court and equal protection is a constitutional right, courtesy of the 14th Amendment. If a same-sex couple can possibly marry (and we know that they can, thanks to Massachusetts, Connecticut, Iowa, New Hampshire, Vermont and the District of Columbia), how can marriage be a fundamental right and not extended to gay couples, given the constitutional requirement that all citizens be treated equally?

    “When a judge legislates from the bench, he violates the RIGHTS of the legislature. When a judge or public official imperiously disregards both precedent and the will of the people, even going so far as to neuter the votes of millions (as in California), he violates the reasonable expectations and sovereign RIGHTS of the people. It is basic right to be able to vote and to have your vote counted. Rights are inalienable when they are self-evident to the people.”

    Boy, has NOM done a number on you! The role of the judicial branch in our country is to independently determine whether laws are constitutional or not. This role in fact separates the judiciary from popular pressures, and is what defines our legal system. The only time a popular vote matters in judicial matters is in the courtroom, and that requires a unanimous vote of 12 jurors.

    The judges of Iowa ignored no precedent: there were no previous cases demanding equal rights for gay Iowans. The judges there did their job: they determined if a law was constitutional or not. Amazingly, the answer was so obviously “No” that ALL SEVEN JUDGES ruled for the law to be struck down. Unanimous rulings are rare and common sense suggests that the question was an open and shut one. But the infamy of seeking revenge against these judges will live on, just one more piece in the NOM reign of terror on the American constitution and judicial system. And for what: to keep gay couples from getting married and protecting their relationships and families. Despicable.

    “It is basic right to be able to vote and to have your vote counted.”

    Straw man alert! Who is trying to stop your vote from being counted? Who?! Vote all you want but your vote can’t result in a law that violates the constitutional rights of your fellow citizens, whether you like them or not.

    If you don’t like America’s system of government, work to change it or move somewhere else. America’s judicial system is probably its best feature. Undermine it at your peril!

  26. Chairm
    November 3rd, 2010 at 23:16 | #26

    Revenge? The judges were up for a vote to retain. The electorate voted. Open and shut.

  27. Mark
    November 4th, 2010 at 06:15 | #27

    But Leo, I can also say this (to paraphrase you): “The RACIAL definition (i.e. the idea of keeping marriage racially pure) of marriage was everywhere accepted in America in 1776, and every time the issue HAD been put to the people since, they have declared for the RACIAL definition.”

    Of course interracial marriage wasn’t, over time, prohibited in all states, but as the research shows, more and more people are accepting of same sex marriage. If the supporters of Prop 8 had not used lies and fear in their campaign (not to mention the hidden campaign financing), same sex marriage would probably have passed in California.

  28. November 4th, 2010 at 09:19 | #28

    Sean :
    “Do you imagine the Lambda folks all live in Iowa and aren’t outsiders putting their resources into Iowa?”
    But they aren’t trying to convince Iowans to vote to damage their legal system[1]! NOM is an outside entity specifically interfering in Iowa politics to the detriment of Iowans[2]. Persuading voters that judges are supposed to issue rulings that please the majority is heresy and, on some level, treasonous[3]. It undermines our very foundation of government and separation of powers[4]. I thought you conservatives were all about tradition[5]??? What about the tradition of an independent judiciary[6]?

    1) That is a matter of opinion. You can’t say that either side voted the way they did thinking they would damage their system of government, both felt they were protecting it. And one side was in the majority in what they wanted to preserve. And your opinion wasn’t persuasive enough at the ballot box.

    2) NOM came in to assist Iowa organizations who lead the movement. Claiming outside help won the election is like complaining about all the money raised to support Prop 8 — when the other side raised even more money and disproportionately more from outside sources. Its just sour grapes. Money doesn’t win elections, ideas do. And the ideas that people most wanted preserved in their government won the day, just like in every public election.

    3) First and foremost, any government gets its ability to govern directly from the people. Majorities are not treasonous, unless you happen to be a selfish tyrant. That is the only type of elitism I can think of that wants to rule against the majority rather than convince them of what is right and wrong. To say that what is right in cases of equal rights and government — especially to a court that established that equal rights are determined by each generation — is better known by the elite few is to simply admit they fear they are really wrong but want to do it anyway.

    Besides, if the people are wrong, they are the ones that need to learn their lesson by making bad choices. That is the fundamental of our system of self-government.

    4) Our government is built on seperation of powers so that no single branch can over-rule the source of their legitimacy — the people. Ultimately all power rests with the people, the constitution could not start with any other three words than “We the people”!

    5) The independant Judiciary in the USA is completely contrary to how it was set up, and how it exists now.

    6) The independant judiciary, is by its very nature, contrary to the seperation of powers and checks and balances that Sean discussed in point 4. Sean contradicts himself often.

    Just when I thought groups like NOM couldn’t do any more damage than they already do, they do. It’s shocking, really. And there are actually people who think they’re right!

    Funny that you call asserting their right of self-rule to be “damaging”. Scary, but also funny.

    Its funny to think that it is constitutional to vote, but somehow unconstitutional for them to vote “no” in retaining these judges. Reminds me of the elections held in the old USSR, and Sean is mourning that didn’t happen in the good ol’ US of A.

  29. November 4th, 2010 at 10:24 | #29

    @Sean

    The question is who gets to interpret the constitution. The people, in the ballot box, have just as much right to interpret the constitution as the judges. And that is the point :)

  30. Sean
    November 4th, 2010 at 18:27 | #30

    No, not at all, not hardly. You have been brainwashed, or are acting purposely ignorant. We have judges to interpret the constitutionality of laws. The people are not lawyers, mostly, have not even read their state’s constitution and are completely unqualified to determine what is constitutional or not. We can play observers, and offer our opinions, just like for medical issues, or current affairs. But we are not qualified, nor have we been asked, to interpret a constitution, or laws bound by it.

    Oh, just in case you think otherwise, we don’t let “the people” perform surgery, either. You must possess a medical license for that. So don’t let just anybody offer to remove your leg or anything!

  31. Sean
    November 4th, 2010 at 18:32 | #31

    “And the ideas that people most wanted preserved in their government won the day, just like in every public election.”

    False. You are highly ignorant of the law and our nation’s legal system. The Iowa constitution guarantees all citizens equal rights. If the people of Iowa want to change that, they must amend their constitution first. Period. End of story. NOM’s fear-mongering preyed on the knowledge that most Iowans have never even read their own constitution. Hard to know what’s constitutional or not if you haven’t read it, eh? Most Iowans have never read the Varnum decision. It is so readable and explicit that whether you like the decision or not, you can see the Iowa court didn’t reach it irrationally.

    Making legal decisions based on dislike of a group, or out of fear, or for religious reasons, is not a good idea. Look at all the divisiveness because some people don’t want gay couples to be able to marry and protect their families. It’s bizarre!

  32. Sean
    November 4th, 2010 at 18:38 | #32

    “Its funny to think that it is constitutional to vote, but somehow unconstitutional for them to vote “no” in retaining these judges. Reminds me of the elections held in the old USSR, and Sean is mourning that didn’t happen in the good ol’ US of A.”

    I appreciate your ignorance and the attendant opportunity to point out your ignorance. No one said it is unconstitutional for Iowans to vote not to retain these judges. You earn today’s Straw man Alert! The issue is, WHY “the people” voted not to retain these judges. Some folks in Iowa appear to think that they know Iowa’s constitution even better than professional judges. Many people who are second-guessing the judges’ UNANIMOUS decision have not even read Iowa’s constitution, nor have they read the judges’ decision in Varnum.

    It seems odd to me, then, for “the people” to vote out these judges without”:

    1. Reading and understanding the Iowa constitution and any related legal cases for equal protection in the state, and
    2. Reading the Varnum decision.

    Something is very amiss in this situation, wouldn’t you say? Could it be that some people are just listening to others who are telling them that if you don’t like the decision, that’s a good reason to fire them, when in fact, the judges are supposed to rule according to the law, not the people’s wishes?

  33. November 5th, 2010 at 09:26 | #33

    Sean :
    No, not at all, not hardly. You have been brainwashed, or are acting purposely ignorant[1]. We have judges to interpret the constitutionality of laws[2]. The people are not lawyers, mostly, have not even read their state’s constitution and are completely unqualified to determine what is constitutional or not[3]. We can play observers, and offer our opinions, just like for medical issues, or current affairs. But we are not qualified, nor have we been asked, to interpret a constitution, or laws bound by it[4].

    Sean has read the opinions of many judges on what is consitutional and not, and the majority of them he disagrees with (and/or ignores) on the matter of equality and marriage. Yet when he does agree with them, all of a sudden those judges are unassailable robed masters, whose intellect and degree are beyond the reaches of the unwashed masses. The arbitrary nature of these judges decisions holds pause alone, but for Sean to complain about our own ability to interpret the constitution while he selectively bows to only the judges he agrees with is a direct contradiction of his own elitist ideals.

    As a conservative political commentator said, “I’m elitist too, I just disagree on who the elites should be”.

    1) I’m brainwashed because I value the opinions of people like Alexander Hamilton, James Madison, Thomas Jefferson and Abraham Lincoln above high-school civics teachers?

    2) True, but everyone in their execution of government obligation interprets the constitution, from the executive branch, to the legislative branch, to the people themselves in how they vote.

    3) That is why we teach the constitution in schools, and it is a publically referenced document, because we the people need to know what it says and help enforce it from people like Sean who wish to set up an elite few to rule over everyone else.

    4) Again, that is false. We are not ruled by a constitution, we agree on a constitution between us and all work together in interpreting it for the best good of the state — democratically directly and through representation.

    Oh, just in case you think otherwise, we don’t let “the people” perform surgery, either. You must possess a medical license for that. So don’t let just anybody offer to remove your leg or anything!

    I think it is funny that Sean thinks the constitution to be of the same complexity as the human body.

  34. Sean
    November 5th, 2010 at 17:52 | #34

    OnLawn, people like you are a danger to this country, and you and your type are far too common. You’re actually proud of your ignorance, as if to say “I’ll show those fancy city types, with their college educations!” If Americans decide that they can band together in ignorance as a path to power, rather than the more worthy pursuit of truth, then this country will be in very bad shape.

    The role of the judicial branch is to determine, among other things, whether a law is constitutional or not. It is NOT to determine if a law is to the liking of a majority. If Iowans had any sense, they would be grateful for the fact that their supreme court makes decisions based on the laws of the state, not the desires of the people. But a majority of people in Iowa, with the help of hate-based groups like NOM, have decided a new role for their judiciary. They’ve redefined the judicial branch’s role. It is now to rubberstamp the will of the people.

    But this is clearly in violation of the US Constitution’s 14th Amendment, which insists that all citizens be treated equally, not “be treated according to the desires of the majority.” There’s a big difference I believe.

    “The arbitrary nature of these judges decisions holds pause alone”

    Now OnLawn, obviously you didn’t like the Varnum decision, not because it was poorly reasoned but because it has an impact you don’t like. But gosh, all seven judges in Iowa got it wrong? They all so misread the state’s constitution, they all decided to “legislate from the bench,” or be “activist” judges, or whatever? Does this really pass the reality check? Oh, and they affirmed a lower court judge’s ruling, so there were EIGHT judges who determined that even gay Iowans deserve equal treatment under the law.

    So if you went to eight separate doctors, and each one told you that you had cancer, but you really didn’t want to believe it, you would ignore getting treatment? Would you get those doctors fired, as the good people of Iowa did to their own judges?

    “We are not ruled by a constitution, we agree on a constitution between us and all work together in interpreting it for the best good of the state — democratically directly and through representation.”

    Now I think your childish side has taken over and you just want to be argumentative for sport. We are a nation of laws not men. In fact, we ARE ruled by a constitution, other the state in which we live and the US Constitution. It’s time to put away childish things and be a grown up, even when the outcomes aren’t what you want.

  35. November 5th, 2010 at 21:52 | #35

    @Sean

    I am college educated, and I advise everyone to do so.

    But even more than that, I hope everyone learns to find out truth for themselves. No skill remains out of reach to those that work to apply and practice it on their own. No concept is out of reach of anyone who seeks the perspectives it takes to fully see it in every dimension. There are no “elites” who can do things that you can’t when you put your mind to education and application of that education.

    All in all, I think people do. I trust the people with their hands squarely in the soil, gathering the consequences of the actions they sow. I trust the lessons they learn and appreciate their pitching in their experiences with everyone else, equally in the ballot box.

  36. Mark
    November 6th, 2010 at 06:49 | #36

    On Lawn: “The people, in the ballot box, have just as much right to interpret the constitution as the judges. And that is the point”

    Actually, that is a frightening statement. Basically, that’s like saying a person has just as much right to practice medicine, or repair cars, or design buildings, all without the proper training. So, do people in the ballot box have just as much right to enforce the law as do the police?

  37. Chairm
    November 8th, 2010 at 06:34 | #37

    “We the People of the United States [...] do ordain and establish this Constitution for the United States of America.”

    That opening statement provides the context for all constitutional law.

    It is not a frightening statement if you believe in the republican form of government that is rooted in a written constitution and which is based on the principles of self-governance: government of the people, for the people, by the people.

    Judges are not demi-gods sitting above society. They are citizens who perform a judicial role for the people. They are interpretors of the will of the people; as are all citizens of the republic. The People have a government, not the other way around.

    The rebuke of the abuse of judicial review is not itself an abuse of the consent of the governed.

  38. Chairm
    November 8th, 2010 at 19:40 | #38

    And still no SSMer has mustered the courage to cite the hinge upon which the Varnum decision turned, much less the point at which the SSMer had become convinced that the offered reasoning was correct.

    The SSM campaign uses argumentation that revels in endgaming rather than reasoning from A to B. The result reached by Varnum was not reached through the rational basis of review, for instance, despite the handwaving of the justices and the SSMers here.

  39. Sean
    November 9th, 2010 at 09:05 | #39

    “And still no SSMer has mustered the courage to cite the hinge upon which the Varnum decision turned, much less the point at which the SSMer had become convinced that the offered reasoning was correct.”

    For me it was the equal protection argument. That was my hinge and what has apparently caused the Straight Supremacy crowd to become unhinged: that gay people should be treated equally as straight people.

    “The SSM campaign uses argumentation that revels in endgaming rather than reasoning from A to B.”

    Well my reasoning is that all citizens should have equal access to social institutions unless there’s a rational public interest in doing otherwise. We don’t deny gay people driver’s licenses, or fishing licenses or medical licenses, so why deny them marriage licenses? Especially when you figure in the requirements of various state and national constitutions, the welfare of children raised by same-sex couples and the clear need to turn down the homophobia in this country, what else is there to consider?

  40. Mark
    November 9th, 2010 at 10:19 | #40

    Chairm: “Judges are not demi-gods sitting above society. They are citizens who perform a judicial role for the people. They are interpretors (sic) of the will of the people; as are all citizens of the republic.”

    Wrong as always. Try taking a basic HS government class. The judiciary’s job is to interpret laws, not the will of the people. If a law is poorly written, the judiciary should not look away but insist it be written correctly.

  41. November 9th, 2010 at 12:26 | #41

    Mark :
    Chairm: “Judges are not demi-gods sitting above society. They are citizens who perform a judicial role for the people. They are interpretors (sic) of the will of the people; as are all citizens of the republic.”
    Wrong as always. Try taking a basic HS government class. The judiciary’s job is to interpret laws, not the will of the people. If a law is poorly written, the judiciary should not look away but insist it be written correctly.

    I’m not sure what HS class Mark went to, but in my elementary school we learned that laws reflect the will of the people, and that all governments only govern by the concent of the governed. That is what is meant when we say that we are a democratic republic.

    It also means everyone can interpret the constitution, not just judges, in how they execute their government obligations (for the people it is voting).

    So while judges can interpret the law, the will of the people is the basis of our self-rule as a nation unimpeded or shackled by aristocracy.

  42. Mark
    November 9th, 2010 at 14:24 | #42

    On Lawn: “but in my elementary school we learned that laws reflect the will of the people,”

    Well, yes, On Lawn. But then one grows up and goes to big kid school and we learn that laws need someone to interpret them.

    “It also means everyone can interpret the constitution, not just judges, in how they execute their government obligations (for the people it is voting).”

    Well, actually, you are wrong again On Lawn. If someone assumes that, according to their interpretation of the Constitution (and it should be capitalized), free speech means they can yell “fire” in a crowded theater, they will be informed that they are mistaken. It’s called law and order. This is why we have judges who interpret the laws. Otherwise, people could do whatever they wanted and say that that was how they interpreted the law.

    “the will of the people is the basis of our self-rule as a nation unimpeded or shackled by aristocracy.”

    And when two laws expressing “the will of the people” contradict, who is to decide? Oh, that’s right, judges. So, when a law gets passed that conflicts with the Constitution (such as denying someone’s basic rights), a judge will review the case and make a judgment (i.e. interpret the law).

  43. November 9th, 2010 at 19:51 | #43

    Chairm: >>>> “Judges are not demi-gods sitting above society. They are citizens who perform a judicial role for the people. They are interpretors (sic) of the will of the people; as are all citizens of the republic.”

    Mark: >>> [... According to] a basic HS government class. The judiciary’s job is to interpret laws, not the will of the people. If a law is poorly written, the judiciary should not look away but insist it be written correctly.

    Me: >> I’m not sure what HS class Mark went to, but in my elementary school we learned that laws reflect the will of the people, and that all governments only govern by the concent of the governed. That is what is meant when we say that we are a democratic republic.

    Mark: > Well, yes, On Lawn. But then one grows up and goes to big kid school and we learn that laws need someone to interpret them.

    As if to have already anticipated Mark’s remark…

    Me: >> It also means everyone can interpret the constitution, not just judges, in how they execute their government obligations (for the people it is voting).

    I post those in order to display the circle the conversation went in.

    Mark : > If someone assumes that, according to their interpretation of the Constitution [...], free speech means they can yell “fire” in a crowded theater

    Someone missed the part where I said “execute their government obligations”, or perhaps he thinks a citizen yelling “fire” in a crowded theater is executing government obligations?

    Either way, Mark, you can try again. I’m happy to hear your counter arguments to the points that were raised, this time pay more attention.

  44. Mark
    November 9th, 2010 at 21:26 | #44

    On Lawn: “Someone missed the part where I said “execute their government obligations”, or perhaps he thinks a citizen yelling “fire” in a crowded theater is executing government obligations?”

    Didn’t miss it at all, On Lawn. The way you wrote it, it could easily be interpreted the way I responded.

    “I’m happy to hear your counter arguments to the points that were raised, this time pay more attention.”

    LOL, “pay more attention.” This from On Lawn.

    How about you respond to my question:
    And when two laws expressing “the will of the people” contradict, who is to decide?

  45. November 10th, 2010 at 07:33 | #45

    Mark :
    On Lawn: “Someone missed the part where I said “execute their government obligations”, or perhaps he thinks a citizen yelling “fire” in a crowded theater is executing government obligations?”
    Didn’t miss it at all, On Lawn. The way you wrote it, it could easily be interpreted the way I responded.

    For the record, and convenience of the reader, the way I wrote it was… “It also means everyone can interpret the constitution, not just judges, in how they execute their government obligations (for the people it is voting).”

    Note that I even gave a specific application of what it means “for the people”, to aid in correctly interpreting that remark.

    “I’m happy to hear your counter arguments to the points that were raised, this time pay more attention.”
    LOL, “pay more attention.” This from On Lawn.
    How about you respond to my question:
    And when two laws expressing “the will of the people” contradict, who is to decide?

    Decide what?

  46. Mark
    November 10th, 2010 at 13:06 | #46

    On Lawn: “Decide what?” Ah, that reading comprehension issue again.

    Well, when two laws contradict each other (assert the opposite of each other), it’s kind of hard to enforce both. So someone has to judge which law to enforce. In the SSM case, there was a law (Prop 8) that contradicted the US Constitution. To enforce prop 8 goes against the Constitution, to enforce the Constitution (which I think we all can agree is the more important thing) would go against Prop 8. Someone had to decide (judge) which law to enforce.

    Now, if both laws express “the will of the people”, then who decides which law to enforce?

  47. Mark
    November 10th, 2010 at 15:36 | #47

    OOPS! That should have read “Prop 8″, not “Prop sun glass face.

  48. November 10th, 2010 at 15:44 | #48

    I

    Mark :
    On Lawn: “Decide what?” [... antics removed...]
    Well, when two laws contradict each other (assert the opposite of each other), it’s kind of hard to enforce both. So someone has to judge which law to enforce. In the SSM case, there was a law (Prop [1] that contradicted the US Constitution. To enforce prop 8 goes against the Constitution[2], to enforce the Constitution (which I think we all can agree is the more important thing) would go against Prop 8. Someone had to decide (judge) which law to enforce.

    1) I’m definately for Prop 8)

    2) False. When given a situation like that what you need to do is reconcile those options. They were perfectly reconciled under the California constitution which has a much more strict equal protection clause, by the California Supreme Court. It was also reconciled by Baker V Nelson, Lewis v Harris, etc…

    Now, if both laws express “the will of the people”, then who decides which law to enforce?

    Enforcement is up to the executive branch, IIRC, in our constitution. A good example of this question comes up in the Prop 8 trial where Imperial County wishes to interpret the constitution in a way that reconciles the federal constitution and Prop 8, but San Fransisco does not, they want to create a conflict between them to have Prop 8 repealed.

    But for now the 9th has decided to let Prop 8 stand, pending appeal so they both follow Prop 8.

    Another good example was before Prop 8 came to be, a number of state legislators tried to enact legislation to neuter marriage. Arnold did not sign it, instead of taking it to the courts, because he interpreted the laws that way. It needn’t go any further. But when a court did strike down Prop 22 (as the legislators tried to do) Arnold agreed, but the citizens did not. And they instead made a consitutional ammendment, and the Judges who had struck it out finally figured out there was a reconciliation after all. But only after the will of the people was made more clear that marriage was not in violation of the constitution, it deserved to be in the constitution.

  49. Mark
    November 11th, 2010 at 07:01 | #49

    On Lawn: “Enforcement is up to the executive branch, IIRC, in our constitution.”

    That is true. However, in order to enforce a law, especially when it contradicts with another law, a ruling must be made. A decision of where either law is legal and which law takes precedence over another.

    “But only after the will of the people was made more clear that marriage was not in violation of the constitution, it deserved to be in the constitution.”

    So On Lawn proposes that as long as the people vote for it, it’s law. So, if people voted to drive when a traffic light is green and they also voted to drive when a traffic light is red, both would be legal. It just does not make rational sense. We have a federal Constitution to preserve the rights of all citizens. A simple majority (52%) cannot simply vote away the rights of some of their fellow citizens.

  50. Chairm
    November 11th, 2010 at 18:13 | #50

    The SSMer said that his understanding of the Varnum opinion is that it included the following hinge: “that gay people should be treated equally as straight people”.

    That same SSMer has conceded that there is no gay criterion nor a straight criterion in the marriage law; yet he has continued to read into the law what is not there — it is a leap of faith rather than a step on the firm ground of reason.

    Hence, when Varnum makes the same leap, the SSMer becomes convinced that Varnum is correct. Yet, the SSMer was convinced of nothing. He was looking for a predrawn conclusion rather than the reasoning from A to B.

  51. Chairm
    November 11th, 2010 at 18:20 | #51

    Mark, did you really just say that I was wrong when I said that judges are not demi-gods? Or did that come out wrong in your comment?

    * * *

    Mark: “The judiciary’s job is to interpret laws, not the will of the people. If a law is poorly written, the judiciary should not look away but insist it be written correctly.”

    Interpreting laws is very often interpreting the intent of the laws; and since the laws expressed the will of the governed (as per my previous remark about the context of constitutional discussions), judges are merely citizens like the rest of us. They have a judicial role, as you know from that class you may have taken, but to abuse that role is unconstitutional.

    Judicial review is not in dispute here. Surely, you would not be pleased if SSM depended on the abuse of the very role you learned about. Right? You’d rather the judges performed their job of interpretation according to the constitutional limitations.

  52. Sean
    November 13th, 2010 at 16:44 | #52

    “Judicial review is not in dispute here.”

    Um, that seems very much to be the issue here. If the court had proceeded exactly as it did, but merely reached a decision more appealing to marriage traditionalists, these judges would have been retained.

    Not agreeing with their decision doesn’t mean they didn’t do their jobs properly. If these judges were in cahoots to advance some social purpose, rather than analyze the constitutionality of a law, they could have orchestrated an opinion that insulated the judges up for retention: a 4-3 vote striking down marriage discrimination, with the three dissenters the ones up for retention.

    Conspiracies are hard to pull off. A conspiracy of seven judges is well-nigh impossible. It really is time for NOM to apologize for what it did in Iowa.

  53. Mark
    November 14th, 2010 at 05:58 | #53

    Chairm: “Mark, did you really just say that I was wrong when I said that judges are not demi-gods?”

    Yes, you are wrong. Judges are not demigods.

    “Interpreting laws is very often interpreting the intent of the laws;”

    Which is what happened in California. The only intent in Prop 8 was to deny gays and lesbians the right to marry. There was no other intent shown nor proven. Another example, in Ohio a constitutional law was passed to define marriage as one man-one woman. In defining marriage so narrowly, it became apparent that laws describing domestic abuse no longer applied to unmarried opposite-sex couples. I believe the courts eventually ruled that that was not the intent of the voters and stated that the domestic violence charge still stands for unmarried couples. The domestic violence charge also covers same-sex couples as well, which is an interesting discrepancy.

    “You’d rather the judges performed their job of interpretation according to the constitutional limitations.”

    I do, and they did. I am sorry it was not the result you wanted. But it was the correct interpretation.

  54. Chairm
    November 25th, 2010 at 19:49 | #54

    Mark is said that judges are not demi-gods.

    You thought to correct me by agreeing with me: “Judges are not demigods.”

  55. Chairm
    November 25th, 2010 at 19:53 | #55

    Mark said: “The judiciary’s job is to interpret laws, not the will of the people.”

    I replied: “Interpreting laws is very often interpreting the intent of the laws; and [...] the laws expressed the will of the governed [...]”

    Mark added: “Which is what happened in California.”

    So, Mark, you agree that the judiciary’s job is to interpret the laws and very often means interpreting the intent of the laws (i.e. the will of the People).

    Why did you initially react with disagreement?

  56. Chairm
    November 25th, 2010 at 20:02 | #56

    Mark,

    The affirmation of the man-woman criterion of marriage law is merely the affirmation that marriage unites the sexes and provides for responsible procreation.

    This criterion has a much longer life than the relatively recent notion of gay identity or ‘gay marriage’. It is also very well justified. Society discriminates between marriage and nonmarriage.

    So the man-woman criterion of marriage law was not, and is not, founded on either of the two things that the pro-SSM court opinions depended on.

    Furthermore, to get to a supposed constitutional right to marry someone of the same sex, one must first recast marriage as something other than marriage. Your own remarks, Mark, are as circular as that of pro-SSM court opinions whereby you assume the conclusion and then work backwards to attempt to excuse the predrawn result.

    Proposition 8, for example, reaffirmed the man-woman criterion of marriage that has always existed in California. The error of the pro-SSM court was corrected; and if the court had simply waited for the outcome of the election, which was on this specific question, it would not have erred so absurdly but would have been guided by the will of the People which has remain constant long before Proposition 8 was even on the ballot. Instead the pro-SSM court attempted to read into the state constitution what clearly was not there and so were corrected by an elecotrate that is among the most gay-friendly in the country.

    All of this serves to illustrate the abuse of judicial review upon which your support for the result, rather than the reasoning, utterly relies.

  57. Sean
    November 26th, 2010 at 07:15 | #57

    “if the court had simply waited for the outcome of the election, which was on this specific question, it would not have erred so absurdly but would have been guided by the will of the People which has remain constant long before Proposition 8 was even on the ballot.”

    My feeling is that I trust the courts more to understand the law than the people, just as I would trust a medical diagnosis to a physician, not my next door neighbor. The courts are composed of people who are generally trained in the law, have access to and read relevant case law on an issue, and (until Iowa) have been insulated from the prejudices of the people. They are better placed than “the people” to determine if a law is constitutional or not. Plus it’s the job they were appointed or elected to do. Oh, and their rulings are not based on popular opinion.

    If some good comes from the Iowa judicial collapse, it’s that Americans might become reacquainted with the role of the judicial branch of government, and the concept of judicial review. I could see retired Justice Sandra Day O’Connor spearheading a national campaign to teach Americans what the judicial branch does. Evidently, a lot of Americans didn’t learn that in high school!

  58. Chairm
    November 27th, 2010 at 10:59 | #58

    Judicial review is not in dispute here; the abuse of the judicial role certainly is at issue here. When that abuse becomes entrenched, as it was in the pro-SSM error of the Iowa high court, it must be uprooted and the legitimate basis for judicial review reaffirmed.

  59. Sean
    November 28th, 2010 at 07:24 | #59

    “Judicial review is not in dispute here; the abuse of the judicial role certainly is at issue here. When that abuse becomes entrenched, as it was in the pro-SSM error of the Iowa high court, it must be uprooted and the legitimate basis for judicial review reaffirmed.”

    The notion, then, that the people have a better sense of what a state’s constitution says, as well as state case law regarding equal protection, than the judges, is ludicrous in the extreme. It defies any kind of grounded reality to say that all eight judges in Iowa misread their state’s constitution, misunderstood the limitations of their judicial role, or had an “agenda” to further gay rights. And to argue that other state courts have found it constitutional to discriminate against gays and lesbians demonstrates further ignorance of the law: other states have other laws and cases on equal protection. And what about all the other states that AGREE with the Iowa Supreme Court?!

    If the judiciary is charged with judicial review, exactly how is it an abuse when they exercise that power? They reviewed a law for its constitutionality. The people of Iowa have witnessed this kind of exercise since 1839 and never objected to it or tried to change it.

    Perhaps the state put on a weak defense. Why are the attorneys representing Polk County under no pressure to resign? Like the Prop 8 defense, they presented no evidence to substantiate their claims.

    The OSM/Straight Supremacy Campaign is leaving a wake of destruction in its war on gay people. Casualties now include three fine judges who did their jobs. Perhaps the remaining judges will lose their jobs in future elections. It is quite unfortunate that hate groups, like NOM, are willing to do whatever it takes, regardless of the consequences, to stop same-sex marriage. Convincing people that judges are bad and can be fired if you don’t like their rulings, is a treasonous assault on our judicial system.

  60. Chairm
    December 1st, 2010 at 21:49 | #60

    The abuse of judicial review is at issue here no matter how desperate the SSMer may be to change the topic to something else.

    When the judiciary is empowered to review, it is not empowered to abuse review. SSMers depend on empowering judges to do something other than the job of the judiciary. That makes the abuse of judicial review the issue here.

    The Iowa court depended on nonrequirements: same-sex sexual attraction, same-sex romance, gay identity. These are not criteria for ineliglbity to marry under the marriage statute of Iowa. These are not criteria for eligilbity to SSM under the court’s imposition of SSM in that state.

    The SSMer cannot escape this hypocrisy embedded in the abuse of judicial review displayed in that court’s offered reasoning. So the SSMer attempts to make a virtue out of the judges being in error — unanimously even.

    That court opinion, like the SSMer, fails to offer a rational basis for the special status of marriage precisely because that opinion began with a predrawn conclusion that favored gay identity politics over the law, the state constitution, and the social institution of marriage. The special status is oky with the SSM, but not the special reason(s) for that special status; the SSMer, like that court opinion, would sever marriage from its core meaning and sever societal regard from what marriage actually is. Thus the SSMer demands special status for SSM without providing even a rational basis much less a basis that would pass intermediate scutiny. Afterall, gayness is not a legitimate basis for lawmaking, according to the SSMer and according to the pro-SSM court opinion, yet that is precisely what the SSM idea kis all about.

    * * *

    And, according to the SSMer’s own criteria for ‘hate’, his SSM argumentation is hateful and bigoted and unjustified. But his double-standards grant immunity for his SSM idea and his ways and means of promoting it, while condemning those with whom he disagrees and while condemning the marriage idea.

    When the SSMer plays those games, he warns society of the threatened harm that the SSM campaign seeks to do to all of society.

  61. Sean
    December 3rd, 2010 at 05:36 | #61

    It would help if the OSMer could offer evidence of abuse of the power of judicial review, if such is the claim in the Iowa “Varnum” decision. The OSMer shrugs, and claims, “you don’t need any evidence at this point!” How convenient.

    If the Iowa judges did something wrong, at least they’re consistent: all seven Supreme Court judges, as well as the lower court judge whose ruling they affirmed, exceeded their authority in determining if Iowa’s marriage statute is wrong? That fails a sanity check in itself.

    “SSMers depend on empowering judges to do something other than the job of the judiciary.”

    In what way? What’s an example of where and how supporters of marriage equality encouraged (perhaps dictated) judges to do something other than their jobs?

    “The Iowa court depended on nonrequirements: same-sex sexual attraction, same-sex romance, gay identity. These are not criteria for ineliglbity to marry under the marriage statute of Iowa. These are not criteria for eligilbity to SSM under the court’s imposition of SSM in that state.”

    The court used these facts to determine if same-sex couples were similarly situated as opposite-sex couples, not to determine if the marriage statute was constitutional or not.

    “So the SSMer attempts to make a virtue out of the judges being in error — unanimously even.”

    Since the judges made no error, there’s no need to create virtue.

    “That court opinion, like the SSMer, fails to offer a rational basis for the special status of marriage”

    Obviously you haven’t read the opinion. The court very much did state the special status of marriage, and noted that that status is in no way impaired when same-sex couples marry. The special status of marriage does not depend on gay people NOT marrying.

    Curiously, there’s little criticism of the weak defense of the Polk County attorneys, who defended the discriminatory marriage statute. The judges seem to bear all the wrath of the angered homophobes/Straight Supremacists/Religionists. Odd. The judges only had the facts presented to them by the state. The judges are not tasked with creating and presenting the legislature’s reasons for its laws; that would be legislating from the bench, and doing the job of the legislature and/or the executive. The judicial branch has a specific role, with boundaries it may not exceed. That’s the way our system works.

    “The special status is oky with the SSM, but not the special reason(s) for that special status”

    But neither the status nor the reason for it can be unconstitutional. Iowa has an equal protection clause in its constitution, and that requires that all citizens be treated equally, lacking a rational public purpose to do otherwise. What’s the rational public purpose in denying same-sex couples the right to marry?

    “he warns society of the threatened harm that the SSM campaign seeks to do to all of society.”

    Sigh. Another Straight Supremacist predicting calamity when gay people are treated equally with straight people. Go ahead, clutch your pearls. Maybe you’ll feel better.

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