Iowa Supreme Court Keeps Judicial Activism Alive and How it Affects You
By: Jim Byrd
This past week, the Iowa Supreme Court ruled with such activism that it rivals the, more often than not, overturned 9th Circuit Court of Appeals. The Iowa Supreme Court ruled the 10 year old Iowa statute that established the gender and age parameters of Iowa marriage laws is unconstitutional, and thus legalized same sex marriage. Iowa code 1999: Section 595.2, Subsection 1 was the malignant statute that stated: Only a marriage between a male and a female is valid. This ruling, by this court, is unadulterated and plenary judicial activism.
Generally, when a court renders a conclusive, activist decision, they take great measure to disguise their nonjudicial rationale; but not so with the Iowa Supreme Court in this particular case. Justice Mark Cady’s opinion gives a glimpse of the mindset of a maniacal jurist when deviating from the law, “We are firmly convinced that the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective. The legislature has excluded a historically disfavored class of persons from a supremely important civil institution without a constitutionally sufficient justification.”
The Iowa Supreme Court’s constitutional justification for its verdict, as with most rulings that deviate from original intent and original meaning, is the result of squeezing a meaning out of text that does not exist; and in this case, qualifying a newly defined class of citizens, then creating an equal protection clause out of the Iowa Constitution to protect their privileges; and then anemically affiliating this fabricated clause with the United States Constitution’s Equal Protection Clause of the 14th Amendment.
The particular clause in the Iowa Constitution that produced for these justices the equal protection language, was secretly embedded in Article 1-Bill of Rights: Laws Uniform, Sec 6: All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.
All laws of a general nature shall have a uniform operation… is a clause that can be found in most states’ constitutions. It is the actual meaning and intent of this clause that would invalidate justification for adopting it as an equal protection clause, and then trying to assume it had the same meaning as the Equal Protection Clause of the 14th Amendment….the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens. This section’s original intent was to prevent the legislature from granting exclusive privilege to a certain class. Example: This intent would establish and protect the criteria established by a state for carrying a concealed weapon as long as the terms and conditions of the privilege for a permit remain uniform; and would preclude certain individuals with criminal backgrounds, mental health issues, etc, from having access to firearms, and not form a disenfranchised class of citizens who cannot get firearms, and then sue under the Equal Protection Clause. The Iowa marriage law is not an exclusionary law and cannot be construed as class legislation. The privilege of marriage between a man and a woman in Iowa is not an exclusive privilege that has been granted to any particular class of citizens.
The bizarre comparison of the prevaricated Equal Protection Clause of the Iowa Constitution’s Section 6 also has a time line defect: The Iowa Constitution was ratified in 1857, a full 11 years before the ratification of the 14th Amendment of the U.S. Constitution. And to further distance the 14th Amendment from the Iowa Constitution, the meaning of the Equal Protection Clause of the 14th Amendment was to prevent a state from not providing equal protection of the laws of the land. The Iowa Constitution merely prevented the legislature from granting exclusive privileges to a certain class and not another. There is a distinct difference between the protection granted by the Iowa Constitution and the 14th Amendment, and that difference being the law does not give the exclusive privilege of marriage to opposite sex couples as a class. Considering that the institution of marriage between a man and a woman predates the U.S. Constitution by many thousands of years, and to postulate from the bench that the original intent and meaning of the Iowa Constitution, and its authors, would condone the redefining of marriage, is indeed unadulterated activism.
What possible effect could this type of judicial activism have on citizens as remote as another state, sans a religious or morality ramification? Potentially devastating consequences to the foundation of these United States. Contrary to what most citizens assume about the founding of this country, this country was not founded as a Democracy; Democracy was never mentioned in the Constitution nor the Declaration of Independence; this country was founded as a Republic governed by representation. The founders were well versed in the experiences of Greece and Rome and the tribulations unleashed on their societies when a Republic morphed into a Democracy, which in turn evolved into mob rule. Thomas Jefferson summed up pure Democracy with these words: “A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine.” The stark difference between a Republic and Democracy being a Republic is governed by laws (Constitution), and not by who may have the most votes on any particular day. And as seen at the state and federal level, including the Supreme Court, these activist rulings that equate to legislating from the bench, are systematically chipping away at the very foundation that separates this country from mob rule, as Jefferson so prophetically stated, and the potential anarchy of mob rule. And the only fortification separating this country from mob rule, is the adherence of the written laws of the federal Constitution, and the states’ Constitutions, and to break that covenant, would be to equivalent of destroying the barrier that separates this country from anarchy.
The more predominate issue is not the immorality of allowing gay marriage in Iowa, but the means of how it was achieved. This Iowa Supreme Court, by judicial fiat, has commandeered the exclusive right to create a counterfeit class of citizens to appease its arbitrary whims of fringe activism. Now, with this decision, there are no limits as to what would qualify as a disenfranchised “class” of citizens, which has opened the door to allow lawsuits for inclusion. Ironically, it could take up to two years for the citizens of Iowa to amend their Constitution to make same sex illegal, and the Iowa Supreme Court amended it in one afternoon.
Jim Byrd's website is A Skewed View.