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April 29, 2009

Government Geldings

By Jan LaRue
Iowans may as well issue a formal declaration of surrender to the oligarchs on their supreme court if the governor and state legislature are allowed to forfeit their duties to uphold the state constitution. Why waste billions of dollars keeping them in office? Death to liberty needn't be so expensive.

After 152 years, the Iowa Supreme Court had a judicial epiphany. On April 3, the judges divined an "equal protection" right to "same-sex marriage" in the Iowa Constitution. The court declared in Varnum v. Brien,

"the language in Iowa Code section 595.2 limiting civil marriage to a man and a woman must be stricken from the statute, and the remaining statutory language must be interpreted and applied in a manner allowing gay and lesbian people full access to the institution of civil marriage."

The fact that the Iowa Legislature reaffirmed traditional marriage in a 1998 statute was of no moment to the court. You'd think that the only branch vested with legislative authority would react to the court's ruling by issuing a declaration reaffirming the statute's constitutionality and its refusal to pass a law permitting "same-sex marriage." Not yet.

Iowa Gov. Chet Culver issued a picayunish statement following the court's ruling:

As Governor, I must respect the authority of the Iowa Supreme Court, and have a duty to uphold the Constitution of the State of Iowa. I also fully respect the right of all Iowans to live under the full protection of Iowa's Constitution. ... Therefore, after careful consideration and a thorough reading of the Court's decision, I am reluctant to support amending the Iowa Constitution to add a provision that our Supreme Court has said is unlawful and discriminatory.

Where is Culver's respect for the Iowa Constitution and his duty to uphold it? Why is he allowing public officials to issue marriage licenses and perform same-sex ceremonies without the statutory authority to do so? Arnold Schwarzenegger and Mitt Romney shouldn't be his role models.

Here's a big hitch for Culver and the Iowa Legislature, pun intended. Article XII, §1 of the Iowa Constitution states:

"This constitution shall be the supreme law of the state, and any law inconsistent therewith, shall be void. The general assembly shall pass all laws necessary to carry this constitution into effect."

The court acknowledged the first sentence, but ignored the second. The second means that the legislature must enact an enabling statute if a constitutional provision is not self-executing.

There is no self-executing provision for marriage in the constitution, nor is there any provision that makes a supreme court opinion self-executing. Marriage is regulated by statutes, as it is in every state. Consequently, unless the Iowa Legislature passes a "same-sex marriage" bill, which the governor could veto, Iowa public officials are without any authority to issue marriage licenses to same-sex couples.

There are additional reasons to reject the court's ruling. For one, the court's ignorance of U.S. Supreme Court case law calls its competence or integrity into question.

Although the Iowa court didn't base its opinion on federal equal protection grounds, in footnote 6 of its opinion, the court erroneously states:

"The United States Supreme Court has not resolved the broad question of whether an absolute ban of marriages between persons of the same sex violates the Federal Equal Protection Clause."

The U.S. Supreme Court specifically rejected, among other claims, a federal equal protection challenge by a same-sex couple denied a marriage license in Minnesota. The Court dismissed the appeal in Baker v. Nelson, "for want of a substantial federal question." While such a dismissal isn't afforded the same status as precedent, it is a ruling on the merits nonetheless, and only the Supreme Court can reverse it.

Secondly, a statute that applies equally to heterosexuals and homosexuals doesn't violate equal protection. Equal protection "does not require things which are different in fact or opinion to be treated in law as though they were the same." Put simply, marriage policy based on the biological differences between an opposite-sex couple and a same-sex couple isn't invidious and irrational discrimination; it's 6,000 years of common sense preservation of the human race.

While there are "particular classes of Iowans" excluded from marriage, homosexuals aren't one of them. Iowa law prohibits bigamous and incestuous "classes" of marriage.

What if in subsequent opinions, based on its newest "understanding of equal protection," the court decides:

  • to reverse in part Varnum v. Brien to the extent that any "minister, priest, rabbi, or other person ordained or designated as a leader of the person's religious faith" who refuses to perform a same-sex "wedding," is violating the equal protection clause?
  • prospective polygamists are "a particular class of Iowans" that must be allowed to marry because they too are "sexually and romantically attracted" to each other?
  • blood relatives must be allowed to marry so that they, like polygamists and same-sex couples, can "demonstrate to one another and to society their mutual commitment"?
If Iowans think such rulings are unimaginable, they should heed the court's words:

Our responsibility, however, is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time.

Jan LaRue is Senior Legal Analyst with the American Civil Rights Union; former Chief Counsel at Concerned for Women; former Legal Studies Director at Family Research Council; and former Senior Counsel for the National Law Center for Children and Families.
on "Government Geldings"