Monday, April 6, 2009
On Friday, the Supreme Court of Iowa became the latest state court to rule that preventing same-sex couples from marrying violates the constitution. Of course, there is much blathering about how the "activist court" has deliberately "run roughshod" over the will of the people, and how the court forced same-sex marriage down the throats of the people.
To all the hyperbole about "activist judges" who are not doing what the people want, I say "enough." It's time to replace the hypebole with actual legal discussion. To wit, a few legal points.
First, the creature known as an "activist judge" exists in the same realm as Santa Claus and the Tooth Fairy. In the imagination of those who disagree with their opinions, judges sit around looking for ways to mangle the law. In reality, judges swear to uphold and affirm the law. Judges care about the law uber alles. The women and men in the black robes do their utmost to uphold the letter and the spirit of the law, and our disagreement with them does not enable us to falsely accuse them of engineering results.
Second, the term "activist judges" is an easy way to dismiss the law itself. "Oh, it's not the law, it's those darned judges." Such claims might be entitled to weight if the legal reasoning is so flawed that the result appears tortured. But that is not the case here. The Iowa case rests on a solid foundation which should put any claims of "activism" to rest. It is no accident that the majority of the state courts that have heard same-sex marriage cases have ruled that denying marriage rights on the basis of sexual orienation violates the principles of equal protection and fundamental rights. The idea of equal protection is rooted in the federal consitituion, but states can always provide a higher level of protection. The law says that all Americans must be treated equally, and the Iowa opinion stands for that premise. So, in essence, the Iowa judges were upholding the law, rather than disparaing it.
Third, as we all know, laws are made to be interpreted - very few laws lend themselves to bright line application. That means that there are usually at least two ways of viewing a legal issue. But the bottom line is that the law is the main focus. Should the judges be attacked because reasonable people can differ on a legal point?
Finally, and most important, much has been made of the fact that the majority of Iowans may not support same sex marriage. The statistic is thrown out as proof that the judges are not doing what the people want. It is the job of the legislature to answer to the people, but it is the job of the courts to answer to the law. So, the same people who are accusing the courts of being activist criticize them because they don't make their decisions based on populist whims? The inconsistency in logic is patent. The court - as it should have - did what it felt the law called it to do.
In sum, courts are not perfect. Sometimes, an interpretation of the law can trigger useful debate. Sometimes, a legal opinion is clearly flawed. However, the debate should always center on the law itself, rather than disparaging those charged with interpreting it.
Update: Newt Gingrich calls the Iowa Court "seven lawyers" who displayed "judicial arrogance."