Iowa Supreme Court Same-Sex Marriage Decision

Alone among the family of nations, the United States’ founding document, declares we, as individuals, are “…created equal, that they are endowed by [our] Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…” Each of us is sovereign. We pool our sovereignty to form governments which serve us – not to rule over us. “We the People,” rule: not lawyers, bureaucrats, judges, or politicians. We the People. This declaration ascribes a universal morality to these beliefs.

Legitimate government flows from the people’s consent. Anything else is unjust. For the Founders of our Republic, wherever moral legitimacy is present, authority resides. The Constitution of the United States, and that of States like Iowa, is, then, something more than a rule book or organizational table, it represents the people’s collected wisdom and traditions, and creates a framework of those powers that the People have loaned to the Government. Thus, all who hold public office bind themselves by solemn oath to the Constitution as our representatives; surrogates whom we entrust to uphold our interests, not theirs.

The consent of the governed is not a blank check to pencil in any desire of the officials of one generation. Constitutions embody consent to the form of government; consent to the scope of government; and consent to the methods and effects of individual laws.

The Founders recognized explicitly that though the official power of government provides a means to obtain justice, it also provides the ambitious with a means to abuse power.

They further recognized that citizens should be burdened by government imposition as little as possible. Government-imposed burdens upon citizens are legitimate only under the following circumstances: the burden is necessary to achieve a just end; and the cost of the burden is outweighed by the benefits it provides. Government should have “…a decent respect to the opinions of mankind…;” in other words, to be responsive to its citizens and not enact laws and policies that are repugnant to them or their values.

Opinions, attitudes, and tastes change, and laws change to reflect them. If one reads the Federalist Papers, one learns that the agent of change, under the Constitution, and those of the states was to be the legislature. The judiciary was meant to be the most conserving branch, resistant to change, and enforcing the laws and Constitution as written. The executive, too, was to have energy and act with dispatch. Courts were to be deliberative and derive all power from the framing documents as they did not have the added legitimacy of being elected for a set time.
The Iowa Court’s same-sex marriage ruling destroys all of these carefully arranged constitutional protections. The Court’s unanimous ruling that the institution of marriage, known to the founders, the Civil War generation, and all civilized nations before now, violated the Iowa Constitution created at the state’s founding. In a stroke, the judiciary has changed the meaning, nature and substance of marriage in a manner resisted by the people of Iowa at all times and even to the present day. Recent laws passed by Iowa have been destroyed upon no authority but the asserted greater wisdom of these seven solons on the Court.

Whatever one’s views on the creation of a same-sex marriage right, the arrogance of judicial fiat should worry all Iowans. Space does not permit a recitation of all the consequences of this ruling but what is to prevent a Court to determine marriage of any kind is unconstitutional? After all, if all people are equal why should the state privilege one institution joining only two of them?

If not reined in, the Judiciary will now have no stopping point in dictating the forms of Government to the people of Iowa. Only a special session of the state legislature can reclaim for We the People our rightful ability to govern ourselves. The Judiciary, and their abettors in the media and academia believe they can seize this power in a stroke of a pen from its rightful owners, the citizens of Iowa.

Same-sex marriage advocates in the legislature should not think that this issue will go away. They ought not to be allowed to collude with this judicial usurpation by pointing to the Iowa Court’s decision and stating their hands are tied. Who commands the Iowa Constitution, the citizens of Iowa or the seven judges and their abettors? Are we citizens or subjects? Unless this is dealt with swiftly and democratically in the legislature now, every race in 2010 will have the gay marriage issue in the forefront. There is no economic issue that overrides whether we are allowed to make laws in this state, even if smug elites do not like them.

Almost immediately after the 2010 election, the 2012 Republican and Democratic presidential nominations will begin. Every Republican candidate seeking to become their party’s presidential nominee will crisscross the state using this issue to appeal to the GOP’s conservative core, which means that it will also be an issue in the 2012 state legislative races. Similarly, President Obama, an opponent of same-sex marriage, will once again have to straddle between the will of the people and the radical Jacobinism of his most rabid supporters. His position here will only highlight his indecisiveness, already becoming apparent in foreign affairs.

Passions on both sides of the gay marriage issue are enflamed. On the one side are those who in Woody Allen’s words “want what they want” and on the other those who wish to have a say in their own state’s laws. In order to avoid a destructive scorched earth battle lasting years, a special session is in order as soon as possible to determine the issue and lend it a patina of democratic legitimacy.