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"Tyrants" in the heartland

Iowa's gay marriage earthquake

The news Friday from the heartland - that the Iowa Supreme Court, citing the state constitution, had ruled favorably on gay marriage - triggered predictable paroxyms of rage among the usual suspects.

It's understandable that the religious right and the Republican party would be so upset. The court decision is a very big deal, a veritable earthquake. It was handed down not in a coastal liberal hotbed, but in the belly of middle America. It happened in a state where there is zero chance that the ruling will be quickly erased via voter refefendum - because Iowa decrees that, even if the state lawmakers and the citizenry want to trump the ruling by writing a gay marriage ban into the state constitution, such a procedure will take a minimum of three years...which means that gays will be free to marry in Iowa until at least 2012. The ruling can't be appealed to the federal courts, because it deals solely with state issues. Moreover, Iowa has no residency requirement for marriage licenses, so gays from other states will soon look upon Des Moines as their new favorite city.

Cue the fuming:

The Family Research Council, a mainstay religious right group, assailed the "seven unelected judges" from the "radical courts" for their decision to commit "a stunning act of judicial tyranny." Meanwhile, over at the Christian Coalition, the Iowa "judicial tyrants" were attacked for "issuing legislation from the bench" and for "legislating their personal viewpoints from the bench."

And, from the Republican National Committee, we received this missive from chairman Michael Steele: "The Iowa Supreme Court's sadly another example of judicial activism currently threatening family values in America...(D)ecisions like this are better left in the hands of legislators and governors (and) should be done by the people, not through judicial decree."

I wonder whether any of the critics took the time to actually read the 69-page decision, or familiarize themselves with the basic tenets of constitutional government, or even to check out the basics of the Iowa Supreme Court.

It's worth noting, for instance, that the ruling in favor of gay marriage was unanimous (unlike the 4-3 decisions in California, Massachusetts, and Connecticut); that the Iowa ruling was written by a Republican appointee; that the chief justice of the high court, who concurred with the ruling, is also a Republican appointee; and that it's not even accurate to refer to these seven judges as "unelected." The Iowa governor initially appoints them, but they subsequently are required to face the voters in retention elections. The two Republican appointees have already done that, successfully.

The judges' reasoning can be easily summarized: They looked at the 1998 state law which bars gays from getting civil marriage licenses, they compared the language in that law to the equal-rights language in the state constitution, and they came to the obvious conclusion that the former did not square with the latter. And since the state constitution is the ultimate arbiter ("the cornerstone of governing in Iowa"), out went the law.

When GOP chairman Steele suggests that "decisions like this" should not be done via "judicial decree," he shows how little he knows about the proper workings of the judiciary. The Iowa judges explain those workings with a minimum of frills: They start by citing the state constitution's Bill of Rights ("Equal protection of the law is one of the guaranteed rights"), noting that those rights "are declared and undeniably accepted as the supreme law of this state, against which no contrary law can stand," and they underscore the preeminence of the state document by quoting the exact words of the document. (From Article XII: "This constitution shall be the supreme law of the state, and any law inconsistent therewith, shall be void.")

You know how conservative critics of the courts always say that judges should be "strict constructionists" who accept the constitutional language precisely as it is written? Well, that's what the Iowa judges did.

They looked at the literal language of Section 6 of the state constitution, which says: "All laws of a general nature shall have a uniform operation (and) 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." Apparently the judges couldn't find anything in there about denying equal protection to gay people.

It's true that 19th-century Iowans did manage to exclude women and blacks from equal protection of the laws, despite the lack of any specified exclusions in Section 6. But past members of the Iowa Supreme Court, citing the state constitution, remedied that situation long ago, by throwing out laws that discriminated against women and blacks. (Laws, by the way, that were considered popular at the time; judges by definition are not supposed to echo prevailing public opinion.) And, last Friday, the current high court judges pointedly referred to these "landmark cases of the past." In other words, they signaled their respect for legal precedent. That's what "strict constructionist" judges are supposed to do.

Then they examined the arguments put forth by the gay marriage opponents in the case. The opponents contended, for instance, that gays should be excluded from the equal-rights language, and therefore barred from marrying, for the sake of the children. The opponents argued in favor of "child rearing by a father and a mother in a marital relationship, which social scientists say with confidence is the optimal milieu for child rearing."

But the judges were more convinced by the brunt of the evidence on the other side. They wrote: "The American Academy of Pediatrics, the American Psychiatric Association, the American Psychological Association, the National Association of Social Workers, and the Child Welfare League of America, weighed the available research and supported the conclusion that gay and lesbian parents are as effective as heterosexual parents in raising children." And they quoted from the official policy of the American Psychological Association; in that group's words, "There is no scientific evidence that parenting effectiveness is related to parental sexual orientation: Lesbian and gay parents are as likely as heterosexual parents to provide supportive and healthy environments for children."

Just as importantly, the judges did another "strict constructionist" test; they looked at the actual Iowa civil marriage law...and discovered that there was no language barring heterosexuals with bad parenting histories. As the judges put it, Iowa law "does not exclude from marriage other groups of parents — such as child abusers, sexual predators, parents neglecting to provide child support, and violent felons — that are undeniably less than optimal parents." Ergo, on what rational basis should gays be denied less constitutional protection than those characters?

In the final pages of the ruling, meanwhile, these "judicial tyrants" tried to speak directly to the faith-based gay marriage critics:
"(C)ivil marriage must be judged under our constitutional standards of equal protection and not under religious doctrines or the religious views of individuals. This approach does not disrespect or denigrate the religious views of many Iowans who may strongly believe in marriage as a dual-gender union, but considers, as we must, only the constitutional rights of all people, as expressed by the promise of equal protection for all. We are not permitted to do less and would damage our constitution immeasurably by trying to do more."

Not surprisingly, there is no evidence that the judges have pried open any closed minds.

I won't hazard a guess on how this ruling might play out in the broader political community over the next few years - beyond noting the obvious, which is that conservative politicians are bound to ratchet up their campaigns against allegedly rogue judges. All that's certain, for the foreseeable future, is that this ruling (and its reasoning) will add momentum to the gay marriage movement, and that gays in the heartland who are seeking to tie the knot may well feel inspired to borrow a few lines from that old baseball movie, Field of Dreams:

"Is this heaven?"

"No. It's Iowa."


Today I'm hosting a lunch-hour program with Newsweek national political correspondent Howard Fineman. Anyone who hasn't gotten their fill of Fineman by reading his stuff, or watching his guest gigs on Hardball, can watch the event live - from roughly 12:30 to 1:30 p.m. - by linking here.