Good
First gay couple married in IowaRoger Kuhle is half-right. It's not for a judge to decide what is acceptable for society as a whole, but it is a judge's job to rule about whether or not what voters say that they want is compatible with the state and national constitutions.
By HENRY C. JACKSON
August 31, 2007DES MOINES, Iowa (AP) - [T]he state's first legal same-sex marriage [was performed] Friday morning, less than 24 hours after a judge threw out Iowa's ban on gay marriage and about two hours before he put his own ruling on hold.
It was a narrow window of opportunity. Polk County Judge Robert Hanson temporarily cleared the way for same-sex couples across the state to apply for marriage licences in the county when he ruled Thursday that Iowa's 1998 Defense of Marriage Act, which allowed marriage only between a man and a woman, violated the constitutional rights of due process and equal protection of six gay couples who had sued. [Hanson ruled that the state law banning same-sex marriage must be nullified, severed and stricken from the books, and the marriage laws "must be read and applied in a gender neutral manner so as to permit same-sex couples to enter into a civil marriage."]
County attorney John Sarcone promised a quick appeal and asked Hanson to stay his ruling until that appeal was resolved.
A dozen gay and lesbian couples were waiting at the county recorder's office when it opened at 7:30 Friday morning.
"This might be our only chance," said Katy Farlow, who waited in a lawn chair with fellow Iowa State University student Larissa Boeck.
Just after 11 a.m., about 20 gay couples had finished applying for marriage licences when Recorder Julie Haggerty announced she could no longer accept applications. Hanson told The Associated Press about an hour and half later that he had formally stayed his ruling.
The stay meant the recorder's office was not permitted to accept any more marriage applications from gay couples until the Iowa Supreme Court rules on the county's appeal. [...]
Gay marriage is legal in Massachusetts, and nine other states have approved spousal rights in some form for same-sex couples. Nearly all states have defined marriage as being solely between a man and a woman, and 27 states have such wording in their constitutions, according the National Conference of State Legislatures. [...]
Roger Kuhle, an assistant Polk County attorney, argued that the issue was not for a judge to decide...
So basically, the Iowa Legislature should pass a law allowing for gay civil unions, but denying gays the right to "marriage". That hair-splitting will please few fully, but it will please most people enough that Iowan society and gov't can put this issue to bed.
Same-sex unions ought to be legal, but the gov't shouldn't be in the marriage business anyhow, so I have no problem with denying gay couples the official title of "married", as long as they can participate fully in the benefits and responsibilities of legal union.
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posted by Oroborous at 1:21 AM
22 Comments:
... the gov't shouldn't be in the marriage business anyhow
It does seem a difficult position.
Let'say Iowa passes an amendment to the constitution prohibiting gay marriage. After all, if you want to stop judges reaching unwelcome conclusions based upon what the constitution says, then best to make it so that won't happen.
Let's further suppose that a religious denomination performs a gay wedding ceremony.
Of course, the state could simply ignore it. But upon what basis? If religious, then the state is in the position of favoring one sect over another.
And if not religious, then why?
Marriage should be a religiously defined concept, varying upon the requirements of any sect.
Family law should lay out things like inheritance, medical decisions, et al contractually.
As with miscegenation, I suspect that in the fullness of time -- fifteen years, give or take -- people will wonder what all the fuss was about.
it is a judge's job to rule about whether or not what voters say that they want is compatible with the state and national constitutions.
I forget. What's the source of constitutional authority?
Wouldn't that be: We, the People.
David:
Then change the Constitution. There's a process for that.
Beyond that, do we want every legal case decided by a simple majority vote ?
There's a reason that societies, even before there were written records, have had judges.
Then change the Constitution. There's a process for that.
Apparently, for policies you approve, it's go find a county Judge in Iowa.
This idea that the Constitution derives its just power from the consent of the governed, but can then be used by the least democratic branch to cram down a policy disliked by a large majority of the people is crazy. The assumption that the majority would then have to change the Constitution, rather than find their own judges is, among many other things, responsible for the death of the liberal consensus in the US.
Jim Crow ended in the South in the same way that these gay folk are getting their marriage licenses. That wasn't widely supported by the voters either.
How is this process different ?
[F]or policies you approve, it's go find a county Judge in Iowa.
Also, that's a red herring.
Everyone knows that this will eventually be decided by the Iowa Supreme Court, but it can't start there.
Thus, the county judge.
1. In fact, your example proves exactly the opposite of what you intend. We fought a Civil War and passed three amendments, and still it wasn't enough to overcome the concerted efforts of Judges for a century to thwart the popular will. The history of civil rights after the Civil War is a story of judicial cowardice.
2. And yet people are getting married, in what is pretty obviously emotional blackmail aimed at curtailing the choices available to the state supreme court.
Jim Crow ended in the South in the same way
We knew Thurgood Marshall, Oro. Thurgood Marshall was a friend of ours. You're no Thurgood Marshall.
Oro:
There's a reason that societies, even before there were written records, have had judges.
Kings, too. And your point is?
Strange to see you pump for rule by unaccountable appointees-for-life from one profession. Me, I prefer the medieval barons. They held cool tournaments and the banquets were to die for.
I share David and Peter's distaste for legislating from the bench; the older I have gotten, the more of a strict constructionist I have become.
The problem at least some judges face in this regard (although, from reading about it in Volokh, possibly not in this case), is that state constitutions often put judges in an impossible bind.
One cannot have an textual insistence upon, say, due process on the one hand, and the absence of an "except for" clause on the other without forcing a strict constructionist into what might well be an unwelcome conclusion.
The best response, IMHO, is to do precisely what strict constructionists demand: if the constitution is wrong, or incomplete, then change it.
When these constitutions were written, scarcely anyone, for all manner of reasons, even entertained the notion that gays might want to get married.
That was then, this is now.
Clearly, some 80% of the electorate is opposed to my position on this topic.
Fine; but to avoid judicial legislating, then that 80% needs to amend their constitutions to say what the 80% mean.
David:
I don't quite get what you're saying. From the beginning of our nation, the Northern states were against slavery, and the Southern states were for it.
What was the thwarting of the popular will that judges were doing, up until the Civil War ?
Slavery stayed illegal in the North, and legal in the South, and none of the judicial decisions that attempted to paper over the difference was enough...
joe:
LOL
Peter:
Kings, too. And your point is?
Are you implying that, just as we've largely disposed with Kings, we should get rid of the position of judge, as well ?
Strange to see you pump for rule by unaccountable appointees-for-life from one profession.
I don't think that's what I'm doing. Skipper's explanation is close to how I see the situation.
Oro, I am all for kings, but not too fussy about the divine right of them.
O: I think that you're misreading what I wrote. The history of the hundred years after the Civil War is a story of judicial cowardice, thwarting the popular will as embodied in the three Civil War amendments and in the Civil War itself. As for popular opinion before the war, it didn't count the 5 million slaves, which would have tilted the balance a bit. The slaveholders' response? The same as yours.
You're saying the following. There is this policy you favor. A majority of the country thinks that it's an abomination. You could try to convince them otherwise or you could simply wait, since you say that your victory is inevitable. Instead, you praise judges for grasping a hold of a strained interpretation of some plain vanilla phrases in the constitution that you know was not intended by either the drafters or the ratifiers and would, in fact, have horrified them. This interpretation you present as a fait accompli that reverses all the preceding assumptions and forces the majority to change the constitution to thwart the minority.
First of all, this is plainly a dictatorship of the elite.
Second, it is stupid politics. It is exactly what the proponents of abortion did and, 35 years later, the issue is still tearing at the country. Along the way, it sank the liberal consensus that led the left to think that abortion wouldn't be that big a deal. After all, in 15 years (that is, by 1988, when abortion won conservative Republicans their third presidential term), people would wonder what the big deal was.
David:
While I agree with you most of the way, I think you go astry in a couple places:
you praise judges for grasping a hold of a strained interpretation of some plain vanilla phrases in the constitution ...
This is where strict constructionism risks running into a wall of its own making. The plain vanilla phrases, in order to be applicable at all, must have some conveyable meaning dependent upon word choice, syntax and grammar. In many cases that textual meaning runs directly counter to prohibitions on gay marriage.
In those cases, judges are put in an impossible bind. Either ignore the plain meaning of the words in the light of a new situation (which is to make constructionism very interpretive), or defer to deciding such an interpretation
... was not intended by either the drafters or the ratifiers and would, in fact, have horrified them.
Which runs into its own set of problems. In situ, such a thing would very likely have horrified the drafters and ratifiers.
But the present is not a constitution's in situ. It risks presumption to insist that the framers and ratifiers would find such a thing horrifying had they (accept for the sake of argument) known homosexuality is not a moral choice.
Maybe they still would; maybe not. Point is, we simply can't know.
Consequently, where the words of a constitution make gay marriage restrictions problematic, IMHO electorates need to resolve the problem by amending the contract between government and the governed , and, thereby, remove judges from a predicament not (at least in some cases) of their own making.
Second, it is stupid politics.
I tend to agree, in that the timing is certainly stupid; however, for mortals, sometimes the short term can trump the long term.
By forcing the contradiction now, gay marriage advocates run the risk -- in some locales, the certainty -- of entrenching in state constitutions prohibitions against what they seek.
Given various trends, it seems very likely that waiting 10 - 20 years would have yielded much less opposition.
The stupidity of imposing abortion choice on the entire country is mirrored by the federal governments perpetual abuses of states rights.
There is no reason for the DOMA, or an amendment to the federal constitution on this issue. Unfortunately, pleny of people who didn't learn a thing from Roe v. Wade are perfectly willing to do so.
Skipper: If it weren't a strained interpretation, then the opinion of the drafters and ratifiers would be much less significant. Of course, mostly if an interpretation is not strained, then we expect that the drafters and ratifiers intended that interpretation. It is, from the point of view of democracy, their intention that matters. How do we know their intention? From the language they used.
We can differ on whether this interpretation is strained, but I really don't see that allowing single-sex marriage over the objections of a large majority of the people, is compelled by the language of the Constitution. In fact, we're now in the odd position where more or less identical language in state and federal constitutions don't mean the same things, according to the highest court of at least one state. That just makes having a written constitution look like a bad joke.
David:
If it weren't a strained interpretation, then the opinion of the drafters and ratifiers would be much less significant.
The Iowa court's particular interpretation (I'm taking Volokh's discussion as authoritative) may well be strained with respect to what the Constitution's words say, but not all similar rulings suffer that defect.
The second part of your statement is presumptuous: what opinion of the drafter's (or the voters who consented to the constitution)? I strongly suspect no such opinion existed, because the question was never asked contemporaneously. What's more you take it upon yourself to speak for the drafters about what their opinion would be if they were to be asked that question in the here and now.
I strongly suspect that most state constitutions cannot uphold a ban on same-sex marriage, because the question was never raised at the time, and doing so now that the question is raised requires making stuff up out of whole cloth based upon the obvious lack of popularity for the notion among the electorate.
That is fine, but it guts the admirable notion of strict construction. Best not to gut it by making the prohibition explicit, rather than relying upon judges to ignore what the constitution says in deference to what they know most people prefer.
You and I disagree about the advisability of same-sex marriage; I willingly concede that regardless of its ultimate merits, as a practical fact it is a non-starter.
You and I agree that strict construction is the way to go. So why not go that way?
(IMHO, within the next 15 years, most people will look upon opposition to same-sex marriage with the same fondness as that against miscegenation.)
Skipper: Like O, you've turned the presumptions entirely on their head. The way it works is that the state legislatures have control over, for example, the definition of marriage, unless the constitution limits their power. The clear language doesn't limit their power in this way, and thus they should be able to limit marriage to a man and a woman regardless of whether doing so is a good idea.
David:
You have misapprehended my argument, although I may have helped that outcome.
It isn't the precise mechanism, whether law or constitutional amendment that is the issue; rather, it is the absence of a definition that, in combination with existing constitutional language, put judges in the position of ignoring that language in order to satisfy the clear desires of the majority of the electorate.
Near as I can tell, that subverts strict construction.
Consequently, since I have come around -- from a far different place, BTW -- that strict construction is a very good idea, then it is incumbent on legislatures to define marriage either by law, or amendment.
Since I happen to think same-sex marriage will affect society no more than miscegenation, the drive by same-sex marriage advocates to gain their way by judicial decision is fundamentally misguided.
If they wait another fifteen years, they will be pushing against an open door.
Skipper: As the Massachusetts Supreme Judicial Court said, the word "marriage" is unambiguous. It means the union of a man and a woman. By using the word "marriage" the legislature was clearly limiting the institution to men and women. The failure of strict construction is in overturning the clear mandate of the legislature without a clear constitutional basis.
As the Massachusetts Supreme Judicial Court said, the word "marriage" is unambiguous. It means the union of a man and a woman.
Was that in the dissent ?
'Cause last time I checked, Massachusetts allows gay marriage.
No, it's from the opinion. The plaintiffs (pro-ssm) argued that "marriage" was ambiguous and thus the statute could be read as allowing ssm. The court rejected that argument and said that marriage was unambiguous. There was no question but that, by using the word marriage, the legislature had meant to limit the benefits of marriage to male-female couples.
The Court then asked whether such a law could survive constitutional scrutiny and decided that it could not. My point is that this last conclusion was not compelled by the plain language of the Massachusetts constitution (because only the Massachusetts constitution was at issue) and thus was wrong regardless of whether ssm is a good idea because the courts should defer to the legislature as the expression of the peoples' will unless compelled to do otherwise by the constitution, which is a superseding expression of the peoples' will.
As Jefferson said, no government is just except to the extent that it derives its powers from the consent of the governed.
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