LAST week, the Vermont legislature overrode the governor to legalize gay marriage. The week before, the Iowa Supreme Court achieved the same result by overriding the state legislature, declaring a 1998 ban on same-sex marriage unconstitutional.
For those who agree (as I do) that the benefits of civil marriage should be available to all couples regardless of sexual orientation, does it matter how we get to that destination? I think it does: The Iowa approach ultimately undermines a constitution's ability to constrain government action and protect individual freedom.
The seven-member Iowa Supreme Court unanimously ruled that limiting marriage to heterosexual couples violates the state constitution's guarantee of equal protection, which it said "is essentially a direction that all persons similarly situated should be treated alike."
It seems safe to say that neither the constitutional-convention delegates nor the voters who approved this provision in 1857 would've agreed that two people of the same sex and two people of opposite sexes were "similarly situated" and "should be treated alike" under civil-marriage laws. In fact, that re mains a minority opinion in Iowa. Last month, a University of Iowa survey found that only 26 percent of Iowans supported gay marriage.
The court overrode the majority's view by reinterpreting the equal-protection clause to mean something it didn't mean when it was adopted. "Our responsibility," the justices explained, "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."
Here we are not talking about applying a constitutional provision in a way consistent with the original public understanding of it (for example, by extending the First Amendment to television). We are talking about applying a provision in a way the people who ratified it would have rejected. How can a right that was "unimagined" in this sense be a constitutional right?
According to the court, "equal protection can only be defined by the standards of each generation." But if the justices had defined equal protection by the standards of this generation (in Iowa, at least), they'd have let the gay-marriage ban stand.
"The point in time when the standard of equal protection finally takes a new form," the court said, "is a product of the conviction of one, or many, individuals that a particular grouping results in inequality and the ability of the judicial system to perform its constitutional role free from the influences that tend to make society's understanding of equal protection resistant to change."
Let's be frank: Under this approach, it doesn't take "one, or many, individuals" to change the meaning of the constitution. It takes exactly four.
Legislatures draw distinctions between groups all the time. They establish criminal penalties, impose age restrictions and set conditions for government benefits. If such judgments violate equal protection whenever four justices disagree with the reasoning behind them, the line between what judges do and what legislatures do begins to disappear.
Changing conditions are said to require reinterpretation, and since no constitution is perfect, you or I may occasionally like the results. But over the long term, we can't count on an evolving constitution to protect our rights.
By JACOB SULLUM
Posted: 1:56 am
April 16, 2009
April 16, 2009
Subscribe to:
Post Comments (Atom)
Posts
1 comments:
Mr. Sullum is ultimately on the right side of equality, i'm personally very glad that he sides with the LGBT community. This post, however, ignores very basic civics lessons and undermines our system of government. A constitution does nothing to "Constrain government" or "protect individual freedom" if the courts have no say in enforcing constitutional provisions. Mr.Sullum's argument is that constitutions do not protect same-sex marriage because the authors of those constitutions obviously would not have endorsed the institution. He ignores the fact that the constitutions are never all inclusive. The foundations of our laws come from constitutions. Equal protection under the law is enshrined in the Iowa constitution. The founders wanted all people to be treated equally. The political right wing and those who believe in conservative jurisprudence slam judges for being "activist" by ignoring the wills of the people and by creating law where there was none before. That argument is contrary to our form of government. It is the very role of our judiciary to interpret the constitution. The justices of the Iowa bench do not need same-sex marriage spelled out to find that laws banning it violate that provision. Mr. Sullum, it is the nature of our non-political Judiciary to interpret law- period. As you mentioned, legislatures are very often bigoted and prejudiced. It took the courts to strike down segregation and bans on sodomy and inter-racial marriage because the legislatures do not answer the pleas of oppressed minorities. Our constitutions protect us Mr. Sullum and our courts see to it that the rules of justice, equal treatment, and due process are evenly applied. I thank you Mr. Sullum for being on the side of justice with regards to marriage but you are wrong in this article. It is your political argument that is dangerous, Mr. Sullum, not the opinion of Iowa's high court who simply upheld the constitution's guarantee of liberty and freedom for all citizens of Iowa.
Post a Comment