I’m surprised this is occurring in Iowa. California, Massachusetts, and even Washington state. But Iowa? Apparently the Iowa constitution looks friendly to the pursuit of gay marriage via the courts.
DES MOINES — A gay rights group filed a lawsuit on behalf of six gay and lesbian couples Tuesday in Polk County District Court, asking for the right to marry for same-sex couples.
Lambda Legal, which has spearheaded the same-sex marriage drive across the country, said it wants full recognition of the civil rights of same-sex couples.
I’m all for gay marriage but I’m not comfortable with it being implemented via the courts. I would prefer that it happen legislatively or via a popular vote of the people. Particularly when it is indisputable that the original intent of the constitution or law being utilized was that marriage only be for men and women. The original intent may have been wrong but there is a procedure for changing it that should be utilized. Changing the meaning via the courts is just wrong. Freedom of the press could just as easily come to mean the government printing office has the freedom to print the news but private or corporate “press” is not. You think it couldn’t happen? Look at what has happened with the Second Amendment.
My earlier comment didn’t make it, so I’ll post a shorter version: where in the Constitution is the government given the right to pass whatever gun law comes into some politician’s head? Since we’re on a gun blog, I’ll assume I don’t have to justify the 14th amendment applying to state gun restrictions as well.
So where in the Constitution is the government given the right to pass whatever discriminatory law that gives to any straight married couple over 1100 benefits that it then chooses to deny to gay couples? Yes this is a mess and religious people’s feelings are hurt, but they wanted to establish their religious sacrament (marriage) within the laws of the state, and so they don’t have much room to complain that it then is subject to the same legal scrutiny as any other discriminatory state law.
Gay people’s rights shouldn’t be any more subject to legislative whim or popular vote than my gun rights or my right to self-defense. Just because judges fail their oath to the Constitution on gun issues doesn’t mean that gun or gay rights shouldn’t still be pursued in court. They are supposed to be where you go to get rid of unconstitutional laws, after all.
The government is strictly prohibited (“…shall not infringe…”) on something that was believed to be an inalienable right. Marriage between two people of the same sex wasn’t explicitly protected, wasn’t even believed to be an inalienable right, and in (most likely) fact sexual activity between people of the same sex was punished at the time of the writing of the Constitution. That is the difference.
Marriage licenses are issued by the state. The state can set the conditions by which those licenses are obtained. I’m all for a Constitutionally Amendment on marriage–one that says marriage is defined as any number greater than or equal to two of consenting adults of whatever gender who want to try and spend the rest of their lives together as a family.
Another option is to get the state out of marriage all together. Which would be fine with me too. You want to be married? Sign a contract with your spouse(s) or have your local religious leader perform some ceremony and write your names down in the back of a book.
Well, one issue I have with gun rights arguments is that I believe that your self-defense rights are really more of a 9th amendment issue than a second amendment issue. You could get rid of every gun control law in the country tomorrow, and you’d still have to deal with the highly over-lawyered area of the law of self-defense (duty to retreat, anyone?). I think the founders would have laughed anyone out of the country (or chased them out) if they’d have tried to argue that your right to protect yourself from an attacker was contingent on whether you had fled to the farthest corner of your house or said that you had to show the court where in the Constitution or Bill of Rights you were granted the right to defend yourself. But I don’t see how the second amendment protects you from that outcome.
Yes, marriage licenses are issued by the state. But whatever power they are granted to issue a license is subject to all of the scrutiny that any state action can face. If the state said that only women could get cosmetology licenses, that law would be discriminatory and (presumably) would be struck down (although in the 1800’s the opposite conclusion was reached in a Supreme Court decision where they rejected a claim by a woman with a law degree that she had the right to practice law). (That ruling and others like it are one of the reasons I don’t have the love affair with “original intent” that some others do.) If the state wants to provide special legal privileges to one group in issuing a license, then it has the responsibility to ensure that those privileges are not denied to some other groups on a discriminatory basis. Whether a discriminatory action arises from a law denying certain rights to a suspect group or a license that grants special privileges to the majority that it flat-out denies to a disfavored minority shouldn’t make a difference in recognizing a bad state act.
A lot of important rights get vindicated through lawsuits when the legislatures are too cowardly or wrong-headed to act appropriately. The overarching point I hope to make is that what has happened to gun rights in the courts is a result of the same jurisprudence that lets states get away with making their heterosexual couples “more equal” than couples that aren’t in the majority.
Ryan, while you have some good points I don’t understand how we can avoid the slippery slope of letting judges rewrite the law in their own image. Sure the legislature is too cowardly or wrong-headed at times. But aren’t judges subject to the same weaknesses?
Yes, original intent can perpetuate some bad law but there is a mechanism in place to correct it. It may be very difficult but it does exist and has been successfully utilized. Having judges defy the clear intent of the law may provide some temporary relief for some people but the long term result is disrespect for the law and the system as well as providing a slippery slope for a loss of essential rights.
I gotta tell you, trying to make intelligent and thoughtful comments always brings home how much effort it takes to do a blog right. And I get to pick what I want to respond to and write about, so it’s a bit easier for me…
I guess my response is two-pronged. If your concern that judges rewrite the law on this issue in their own image relates to the issue of the specific nature of the discrimination (that is, against gay people), then I think that the 14th Amendment (or the Iowa Constitution) itself is the response. Anyone naturalized or born in the US is a citizen, to whom the states are required to provide equal protection under the law, and whose privileges and immunities cannot be denied without due process. The 14th amendment doesn’t exempt any citizen from these rights, nor does it provide any special rights to gay people–but it does guarantee that they, like each US citizen, will be treated equally under the law as their neighbor. Interracial marriage got a similar analysis, I believe, and statutes prohibiting it were struck down by courts after lawsuits just like the ones filed by the gay couples in Iowa. I assume that you don’t have any objection to the courts retaining the institution of same-race marriage but allowing mixed-race couples to marry, as well, even though that is the same sort of rewriting in their own image that concerns you. (And that’s not a veiled “racist” accusation, I just mean that the outcome sought by the gay couples in Iowa is the same outcome that the Supreme Court provided for interracial couples a few decades ago–retention of a formerly discriminatory institution in a manner that removes the discrimination and expands the rights provided by the institution to the class of citizens that were formerly discriminated against. I’ll deal with this particular point later below.) The Iowa constitution is arguably even more explicit about equal protection than the 14th Amendment.
*OR*, the judge could say, “Even though the Iowa Constitution says that ‘the general assembly 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,’ it doesn’t really mean what it says, and the state is allowed to grant the privilege of marriage in an unequal manner because, well, that’s just a ‘reasonable restriction,’ and I will let the state pass a law that goes against the constitution until such time as the minority that is discriminated against can persuade the majority to stop violating the Iowa Constitution.”
Doesn’t the second option sound a lot more like the anti-gunners? “The second amendment says ‘shall not infringe,’ but it doesn’t really mean that because restricting machine gun sales/prohibiting sawed-off shotguns/outlawing any new machine guns/banning 14 specific scary-looking guns is a ‘reasonable restriction’ and ‘shall not infringe’ really means ‘unless the infringement is reasonable to me.'”
I hope this clarifies why I think the anti-gay-marriage crowd has a lot more in common with Sarah Brady than with the Founding Fathers.
A more detailed description of the second prong is as follows. (I wrote this section before the third paragraph, and I moved it up because I think it clarifies my argument, but I think the following is still useful to flesh it out. Also, I am glossing over a lot of jurisprudential issues of statutory interpretation and review for the sake of brevity, although I think that boat has already sailed as far as this comment goes..) I think that we can boil the problem down to “how do you get rid of bad laws?”
1) Strike them down in their entirety
2) Strike down only the portions that are unconstitutional
3) Reinterpret the law in a manner that comports with the constitution
Fish or Man, for instance, was lucky that the court in his appeal went with option 1. This is probably because of the preemption issue, meaning that if the legislature said that their law was the final word on it, you simply couldn’t enact any other laws. If the state hadn’t indicated that it’s law was preempting any law that was in conflict, then I suspect that the judge could have simply interpreted the local ordinance to be okay and ignored the parts that overreached. (Note the court’s comment that he would probably have been convicted if he had been charged under the state law.)
With gay marriage, going with option 1 means that marriage laws that discriminate against gays are invalid. That means any marriage statute that provides rights or privileges for some citizens while discriminating against others are invalid and void–and thus altogether dead (nobody can get civilly married, gay or straight). I think this is the most appropriate response, since allowing courts to interpret out the bad parts of statutes only encourages politicians to game the system (“I’ll pass the most egregious law I can think of, and then maybe the court will leave more of it in place than is appropriate, thus chipping away at the Constitution.”)
I think that option 2 and 3 really end up being the same thing, and I believe that they are the options that the courts will try to abide by. The Iowa couples are asking a court for mandamus for them to be issued marriage licenses by the state, even though the state specifically defines marriage as having an opposite-sex couple. I don’t know how you can have judicial review as an institution without having judges decide questions like, “does this statute’s restriction of the privilege of a marriage license to male-female couples deny other couples the equal protection of the law?” If the court finds that it does, then the judge has options 1, 2, or 3 available. He can allow the licenses to persist, but strike down just the portion of the code that provides for the unconstitutional restriction. That means that everyone in Iowa is still married, but now gay couples are no longer restricted either. He could reinterpret the statutory language to comport with the constitution, but given the very specific language of the
Iowa code I don’t know that this option (3) is available. Or he could decide that the Iowa Code providing for marriage licenses is unconstitutional and void because it provides rights for some citizens that it doesn’t provide for other citizens (option 1) (nobody can get married in Iowa until the legislature passes a law that isn’t discriminatory because there is no valid marriage statute).
Hope I didn’t break the comments with this one.
No you didn’t break the comments. I’m not sure you can. But if you take too long (a couple of minutes I think) you will have to reenter the code that prevents comment spam.
Thank you for taking so much time to explain this to me. I spouted off without even looking at the Iowa Constitution, statues, or case law. And I still haven’t taken a look at it. Since this isn’t really one of my focuses in life I will attempt to gracefully withdraw from the discussion without reducing my ignorance. I’ll offer some things for you to skewer and since we both are in agreement on the desired end result and only differ in the means of how we get there I think I can let you have the last word without getting too frustrated.
One argument I have heard before is that gays have the same privileges (if you have to get a license then it is a privilege not a right) to marry as heterosexuals–they have the privilege to marry someone of the opposite sex. The law doesn’t discriminate against any individual. The Constitution is written to protect individuals not couples. So since the law isn’t discriminating against individuals doesn’t it stand as is?
Thanks for listening. I keep toying with the idea of doing a blog, but the time involved to make one with decent content is pretty intimidating, so for now I am happy to be able to make comments on other peoples’ sites. I’m happy to spend the time, though, because it forces me to focus my response in a way that I usually don’t get to do when debating it over beer and a game of Halo.
No offense, since I understand that you aren’t proposing it yourself, but the argument you mention just sounds downright Clintonian in its attempt to find some tiny semantic loophole to avoid the clear letter and spirit of the language. Mixed race couples had the right to marry someone of their own race, too, but the Supreme Court still struck down interracial marriage prohibitions–obviously, since the right to marry someone you don’t care about is a pretty crappy compensation for not being able to marry the person you love–stating that “marriage is one of the basic civil rights of man”. To its credit, I don’t think that Virginia ever tried to make that argument in its Supreme Court appeal over its interracial marriage laws.
It’s been a pleasure.