Democracy Defeats Liberty
November 4th was the day we elected Barack Obama.
It was also the darkest day in a while for gay marriage advocates, as California voters, fueled by Mormon money and fervor, passed Proposition 8, which amended the state Constitution to ban same-sex marriages. Prop 8 essentially overruled the state’s Supreme Court, which ruled in May of 2008 that barring same-sex marriage was unconstitutional. Florida and Arizona also passed Consitutitonal Amendments banning same-sex marriage that same day.
Democracy, it seemed, had defeated Liberty. But Truman defeated Dewey in the end, and liberty is far too strong to go down so easily.
On Friday, Iowa became the third state to legalize gay marriage.
In his wonderfully written opinion, Justice Cady, appointed by a conservative Republican, phrased the debate thusly:
The same-sex-marriage debate waged in this case is part of a strong national dialogue centered on a fundamental, deep-seated, traditional institution that has excluded, by state action, a particular class of Iowans. This class of people asks a simple and direct question: How can a state premised on the constitutional principle of equal protection justify exclusion of a class of Iowans from civil marriage?
The answer: it cannot:
A statute inconsistent with the Iowa Constitution must be declared void, even though it may be supported by strong and deep-seated traditional beliefs and popular opinion.
What strikes me most about this ruling is how directly the Court address religious opposition. I’m not an expert, but this seems quite unusual, and quite frank (p.64):
Whether expressly or impliedly, much of society rejects same-sex marriage due to sincere, deeply ingrained—even fundamental—religious belief.
Yet, such views are not the only religious views of marriage. As demonstrated by amicus groups, other equally sincere groups and people in Iowa and around the nation have strong religious views that yield the opposite conclusion.
…This mission to protect religious freedom is consistent with our task to prevent government from endorsing any religious view. State government can have no religious views, either directly or indirectly, expressed through its legislation…
As a result, civil 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.
Cady goes into more detail on civil liberties in the context of public opinion (p.15):
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. The framers of the Iowa Constitution knew, as did the drafters of the United States Constitution, that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” and as our constitution “endures, persons in every generation can invoke its principles in their own search for greater freedom” and equality.
And Cady puts this ruling in the context of other major cases (p.17):
In the first reported case of the Supreme Court of the Territory of Iowa, In re Ralph, we refused to treat a human being as property to enforce a contract for slavery and held our laws must extend equal protection to persons of all races and conditions. This decision was seventeen years before the United States Supreme Court infamously decided Dred Scott v. Sandford, which upheld the rights of a slave owner to treat a person as property. Similarly, in Clark v. Board of Directors, and Coger v. North West. Union Packet Co., we struck blows to the concept of segregation long before the United States Supreme Court’s decision in Brown v. Board of Education. Iowa was also the first state in the nation to admit a woman to the practice of law, doing so in 1869. Her admission occurred three years before the United States Supreme Court affirmed the State of Illinois decision to deny women admission to the practice of law, see Bradwell v. Illinois, and twenty five years before the United States Supreme Court affirmed the refusal of the Commonwealth of Virginia to admit women into the practice of law, see Ex parte Lockwood. In each of those instances, our state approached a fork in the road toward fulfillment of our constitution’s ideals and reaffirmed the absolute equality of all” persons before the law as “the very foundation principle of our government.”
The ruling is remarkable: it takes up each argument opposing same-sex marriage and dispatches it in regular language, with none of the sort of holier-than-thou attitude that courts are often accused of having.
If I walk down the street, I can see Iowa across the river. As Liz Lemon puts it, I want to go to there.
But wait, the battle is not over. The state could still pass an amendment to bar same-sex marriages, right? What about a referendum, like Prop 8?
Not gonna happen, at least not anytime soon. In Iowa, changes to the state’s Constitution take a long time. The same amendment has to pass two different sessions, and then is put to the people for a vote. So even if the Iowa legislature amends the Constitution in 2009 or 2010, it would then have to pass it again in 2011 or 2012, after which it would go on the ballot. The Democratic Majority leader in the statehouse flat out refuses to take up the issue, and neither will Governor Chet Culver, who was silent for some days and then came out with a spineless equivocating statement about opposing gay marriage but not wanting to amend the Constitution.
Furthermore, Iowa does not require residency for marriage licenses, so gay couples from other states can come to Iowa to be married. Recognizing this, the DC Council voted unanimously yesterday to recognize gay marriages performed elsewhere, and is considering its own gay marriage legislation. Given “Home Rule,” Congress has a role here, and who knows how that will go.
Still, the tide of liberty is on the rise.
So how did the Republicans respond? With that old nugget of “judicial activism” of course.
It’s the height of judicial arrogance. You have seven lawyers who have decided, on their own, to fundamentally change Iowa.
Right, just seven completely random lawyers.
Michael Steele threads the needle a bit differently, and takes the federalist position:
The Iowa Supreme Court’s decision today to reverse an 11 year old state law outlawing same-sex marriage is sadly another example of judicial activism currently threatening family values in America. While I respect an individual’s right to live his or her life as they see fit, decisions like this are better left in the hands of legislators and governors.
I firmly believe that marriage should be between one man and one woman. A state’s autonomous nature allows it to change its laws as the citizenry sees fit, but it should be done by the people, not through judicial decree.
But that was before Vermont did the unthinkable. In a milestone that may ultimately be far more important than Iowa’s ruling, Vermont became the first state to pass a law specifically legalizing same-sex marriages. Not only does this victory affirm freedom and liberty, it does so with the power of democracy behind it.
I wonder, what will Michael Steele say now?
I wonder, too, how impactful Vermont’s law will actually be in the larger struggle. It just fits too easily in the pattern of them crazy elitist northeasterners. New England is particularly suspect: Massachussets, Connecticut, New Hampshire, and Maine all recognize gay marriage, civil unions, or gay domestic partnerships in some way shape or form. The only other states with some form of legal partnership are New Jersey, Washington, and Hawaii, joined by Washington, DC. There are limited rights in other states, but usually these take the shape of something like benefits for same-sex partners of state employees.
But then again, Vermont was the first state to legalize civil-unions, back in 2000, so maybe civil-unions are the gateway drug after all.
And the reality is, despite all this wonderful news, the picture is still pretty grim. In all, 29 states have constitutional bans on gay marriage, and 43 states ban it via statute or other means.
In the map below, pulled from Wikipedia, you can see the national picture. (The NPR flash-based map is handy, too). Purple indicates recognition of gay marriage, green and blue have civil unions, light blue recognize foreign same-sex marriages. Yellow and orange indicate banning of same-sex marriage by statute or Constitutional amendment, respectively, while red shows Constitutional bans on civil-unions as well.
In all that red, yellow, and orange, look at Iowa, an island of liberty in an ocean of small-minded fear.
Iowa is the heartland. It isn’t on the liberal coasts. It isn’t buried in the deep South. Iowa is the midwest. It’s where corn is from, where the state fair is still a big deal. Des Moines is but 300 miles northeast of the geographic center of the contiguous United States (near Lebanon, KS) and 300 miles northwest of the population center (near Edgar Springs, MO).
Iowa isn’t a blue state or a red state (if a bit bluer shade these days). Iowa has one Democratic Senator and one Republican, and has three Democratic Congressmen and two Republicans. The current Governor is a Democrat, as are 30 of 50 in the State Senate, and 54 of 100 State Representatives.
Iowa represents the reasonable middle ground of American politics. And this is why I think it is more of a watershed moment than Vermont.
Or as Richard Socarides put it:
I think it’s significant, because Iowa is considered a Midwest state in the mainstream of American thought. Unlike states on the coasts, there’s nothing more American than Iowa. As they say during the presidential caucuses, ‘As Iowa goes, so goes the nation.’
We can only hope so.
