Peder D4

Discussion of politics and other odious things

Saturday, April 04, 2009

Gay Marriage in Iowa

Via Reason's Hit & Run, here's an article about the recent gay marriage ruling in Iowa from Jacob Sullum. He and I both favor gay marriage but aren't happy with the judicial approach to getting there. He's put this better than I have:

I like the policy outcome here, and I sympathize with the argument that the principle of equal protection should compel the government to treat gay and straight couples in an evenhanded manner. But this decision, like the California Supreme Court's similar ruling last year, seems to be another example of result-oriented jurisprudence that ultimately undermines a constitution's ability to constrain government action and protect individual liberty. If you read the court's analysis as it goes through the arguments for a gay marriage ban and (correctly, in my view) finds each of them wanting, it's hard to see how this process differs from what legislators do.

It's clear that the Iowa constitution's equal protection clause, at the time it was adopted, was not understood to prohibit a law limiting marriage to a man and a woman (assuming the issue would even have been intelligible). So the basis for saying that such a law is inconsistent with that clause today has to be an evolving understanding of what equal protection entails, especially regarding what it means to be similarly situated. But barring a constitutional amendment, judges can implement this new understanding only by reinterpreting the clause to mean something it did not mean at the time it was written. That sort of license can lead to all sorts of mischief, as the evolving understanding of the U.S. Constitution's Commerce Clause (to pick one especially pernicious example) illustrates.

That's a problem and one that I wish more gay marriage supporters would address. We shouldn't want courts looking for ways to 'get to the right place'. It can only lead to major distortions in the system. Some of them will work in your direction but over time you're going to get screwed as well.

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5 Comments:

Blogger James Colby said...

I figure we are getting screwed from time to time by judges so why not take the good with the bad?

I also think the rights of minorities should not be decided by a majority that is unaffected by such legislation. In those cases it can be good to have professionals making the decisions. Of course that is not who we always have on the bench.

Do we really want Christians to decide by popular vote where Budhists can practice their faith?

Do we want Yankees fans to tell Mariners fans they have to build a dome because Mariners aren't good enough for outdoor baseball?

This is about individual liberties and you seem like a libertarian, most of them don't want their rights put to a vote.

3:03 AM  
Blogger -Peder said...

James, all of the things you mention have to do with very well understood rights (right to worship, property rights etc.). The right to marriage isn't nearly as well worked out. I'm skeptical that we should put this question solely on the judiciary.
In a society where judges decide all of the important questions, what role do the people play? Obviously the masses can make mistakes (and I think a gay marriage opposing majority is doing so) but they have to fit in somewhere, don't they?

5:02 AM  
Blogger James Colby said...

Maybe I misunderstood you. Reading your last comment, perhaps your okay with Judges deciding this in some states as long as the people get to decide it in other states? If not, I'm getting mixed messages from you.

But yes, the examples I gave of well established rights was done on purpose, because we should be looking at this as rediculous that someone else can take our rights away without giving up anything themselves. You and I both know this isn't about criminals, we are talking about American citizens. So we know it shouldn't be a question of should we or shouldn't we give them the same rights as anyone else, but rather unless we have a damn good reason to take that right away...it's their right and I want judges to be there to uphold our rights as American citizens.

10:35 AM  
Blogger -Peder said...

Ok, let me be more clear. I don't think gay marriage is a settled issue as far as rights go. I think that it has some way to go before it's widely recognized enough to be imposed by the judiciary. I prefer that large issues of policy be decided by messy democracy rather than through the possible wisdom of a small select group.

7:30 AM  
Blogger James Colby said...

Fair enough, we can disagree on that. I think democracy is great, most of our laws are made by representative democracy however and our judiciary has it's place too. We just disagree on when they come in to play.

On this issue, I believe I am more libertarian than you. As long as the law doesn't prohibit it, the right should be there for all of us rather than just most of us.

The good news, in my state, they past everything but marriage. First by state legislation, also by ballot vote. We don't have marriage yet, but we are going in the right direction.

Also if you do some sifting through the polls in other states regarding gay marriage, it's beginning to come down to old vs young. The really old voters are against usually around 90% and they vote reliably. The young voters are for it close to the same percentages, but they aren't as reliable voters. As we age, we will be in massive agreement. Maybe we need to start tying these initiative to something old people want.

9:04 AM  

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