Comments on: Iowa Supreme Court on Homosexual Marriages

By: ChurchETHOS

ChurchETHOS — Fri, 10 Apr 2009 14:22:44 +0000

I heard the director of NOM talking about how one of the paragraphs even says that it is stereotypical to suggest that a child needs both a mom and a dad. Where is this country heading?

By: Foltz

Foltz — Tue, 07 Apr 2009 17:33:15 +0000

What are the implications for the smothered debate here in the Indiana Legislature? As I recall, we don’t need no stinking Amendment to the Indiana Constitution because we already have a law on the books that covers the situation?
The implications are such, some Republicans will use this to bang some political pots and pans and resubmit the amendment in some fashion,, some Democrats will offer support for the bill, then some Democrats will stall, big businesses will get involved if it restricts them from offering same-sex benefits, and the bill may or may not pass one year, but will fail in the second.
The endgame to that process will be that generation X and Y will eventually makeup more of the populace than the Boomers and Busters and legislation will pass allowing same-sex unions or the Equal Protection Clause will be expanded to include homosexuals as a “suspect class”.

By: Eric Seymour

Eric Seymour — Tue, 07 Apr 2009 13:38:30 +0000

Jerry,
I’m not convinced that judges feel constrained to respect widespread popular opinion when deciding major rulings even when their appointments are secure. The principle of stare decisis does constrain the court from rocking the boat too often, but I don’t know if that was a factor in Iowa or not. (Anyone know when the last time a challenge to the ban on gay marriage made its way to the Iowa SC?)

By: Anonymous

Anonymous — Tue, 07 Apr 2009 13:03:53 +0000

By: Jerry Doodle

Jerry Doodle — Mon, 06 Apr 2009 22:28:32 +0000

I should have written: “I suspect that the US Supremes feel similarly constrained when deciding big rulings like this too, in spite of having life tenure.”

By: Jerry Doodle

Jerry Doodle — Mon, 06 Apr 2009 22:26:12 +0000

Eric,
I don’t think any of the Iowa SC justices are worried about getting reseated in elections. That’s not what I meant about being “constrained by popular opinion.” I suspect that the US Supremes feel similarly constrained by big rulings like this too, in spite of having life tenure. Like it or not, state and US Supreme Courts probably consider their own institutional authority when it comes to deciding these kinds of huge, highly charged cases. We accept Brown v. Board of Education as a correct decision now, but would the SCOTUS have gone the way it did at the time if there wasn’t fairly widespread acceptance of desegregation outside of the Deep South? Additionally, I don’t believe that Supremes (state and/or US) have the power on their own to carry out their judgements. They have to rely on the exec branch to do that, and the execs ARE subject to the electorate.

By: Eric Seymour

Eric Seymour — Mon, 06 Apr 2009 21:12:40 +0000

Jerry,
Thank you for clarifying. It is theoretically possible that popular opinion might constrain the Iowa SC as you postulate, since its justices serve terms of 8 years (or as little as 1 year after their initial appointment), then must be retained in a general election. However, it is extremely difficult to mount a campaign to “un-retain” a justice. It would surely be easier and faster for opponents of same-sex marriage to amend the state constitution than to replace SC justices based on how they ruled on the issue.
Regarding Johnson’s argument against polygamy, I don’t believe it would hold up in an actual challenge against laws banning polygamy. If marriage is a fundamental right as same-sex marriage supporters argue, then surely the necessity of modifying laws to accommodate plural marriages would not be a compelling reason to deny polygamists their rights.

By: Jerry Doodle

Jerry Doodle — Mon, 06 Apr 2009 20:35:59 +0000

Here’s the actual back and forth on polygamy between the Court and the lawyer repping the gay couples, former Iowa Solicitor General Dennis Johnson, who

…fended off concerns about same-sex marriages leading to polygamy by saying that marriage is an “institution” that has traditionally been between two people only.

“Aren’t you doing the same boxing-in of the definition of marriage” as opponents of same-sex marriage, asked Justice Brent Appel. No, said Johnson, because the dispute is not over the definition of marriage; the dispute is over “who is allowed to participate” in marriage.

“If same-sex couples are allowed to marry, my marriage will not be affected at all,” said Johnson. “They will operate under the same-sex laws.”

“Why would three people being married affect your marriage?” asked Justice David Wiggins.

“It won’t,” said Johnson. “But they would have to have completely different rules” than two-person married couples. Married couples with three or more parties, he said, would have “unique problems that would require a new array of statutory and case law.” Laws regarding consent, inheritance, custody, and paternity, he said, could not be applied to multiple-party marriages the way the can be applied to two-person couples.

By: Jerry Doodle

Jerry Doodle — Mon, 06 Apr 2009 20:14:25 +0000

Eric,
I’m not remotely suggesting that the ISC came to the decision it did because it’s the what the majority of Iowans favor. I’m not even sure that the majority of Iowans even favor what the court decided.
I’m suggesting that I suspect that SC judges might sometimes be constrained by popular opinion when it comes to big opinions like these. That current attitudes in Iowa made it politically feasible for the Court to come to the correct decision that it did, despite slippery slope arguments from social conservatives.

By: Eric Seymour

Eric Seymour — Mon, 06 Apr 2009 18:43:56 +0000

I think the legislature can decide such things, but in the majority of instances I don’t think they should decide them.
I agree with that. I should have written that when there is a need for the government to be involved, it should be the legislature and not the courts. But far better for the government not to be involved at all.
Why are we offering benefits at all?
We’re mostly talking about health insurance here, and frankly it would be better if that weren’t linked to one’s job. It would be even better if we could switch from covering all medical care through insurance to covering most medical care through medical savings accounts, and perhaps only catastrophic medical expenses through insurance. Not only could that help control medical expenses, as we can see through this discussion it could make the issue of same-sex marriage somewhat less controversial.