April 29, 2009
Government GeldingsBy 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 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:
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:
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 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:
If Iowans think such rulings are unimaginable, they should heed the court's words:
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.