Iowa Marriage Decision Must Read: “When Liberty Kisses Justice”
When liberty kisses justice: equality of rights is an excellent post by Classically Liberal on the Iowa Supreme Court’s recent decision to provide marriage equality. Click here for the full post, but here are a few excerpts to whet your appetite:
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The god-botherers out there scream when a court rules as this one did. They exhibit their own ignorance by bleating that the justices are legislating from the bench. But what these justices are required to do is judge whether or not legislative law is consistent with, or in violation of, constitutional law. That is their job! They are not usurping powers but judiciously engaging in their primary job.
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What the Iowa court did, in this case, was make issue a very conservative ruling. They upheld constitutional law, and some of the best constitutional law, that Americans have. The radicals in the court room were the plethora of religiously-inspired special interest groups demanding that constitutional principles be ignored because they imagine that some supernatural being has demanded that one class of people be treated badly. The Justices were respecting the law, not making law…
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The justices also noted that public opinion matters not one bit. “A statute inconsistent with the Iowa Constitution must be declared void, even though it may be supported by strong and deep-seated traditional beliefs and popular opinion.” Jefferson addressed this when he said: “What is true of every member of the society, individually, is true of them all collectively; since the rights of the whole can be no more than the sum of the rights of the individuals.” Popular prejudice, even if widespread, in itself, is not sufficient cause for making a minority less than equal. The Iowa justices wrote that “the very purpose of limiting the power of the elected branches of government by constitutional provisions like the Equal Protection Clause is [according to Justice Robert Jackson] ‘to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.’”
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Each generation faces new questions about rights not faced by previous generations. The Founders did not believe that their list of rights was exhaustive. So they did not try to enumerate such rights. They said they were offering future generations the broad principles with which they should work when facing new controversies about individual liberty. Jefferson’s said that the “most sacred” duty of government is “to do equal and impartial justice to all its citizens.” That principle was enshrined in the Iowa Constitution, as it was in most state constitutions. Jefferson said our principles of government “secure to all… citizens a perfect equality of rights.”But today, conservatives are leading a stampede to undermine the concept of equality of rights before the law. They are arguing that their religious sentiments and imaginations require the law to explicitly embrace an inequality of rights. This is precisely what Prop 8 did in California and what many other such “constitutional amendments” have been intended to do. They have radically rewritten a basic constitutional principle, that of equality of rights, and substituted for it one that demands inequality of rights. Such a revolutionary change to a founding principle is hardly conservative in any sense of the word. It is a shockingly revolutionary attempt to overturn the founding principles of the Republic.
…..One of the great things about liberalism, properly understood, is that it doesn’t ask us to cling to the conclusions of the past, just the principles. Those principles still embrace a free society, based on individual rights and one that respects the equality of those rights before the law. The Justices in Iowa did not overturn those principles at all. They unanimously embraced them. And for that they should be applauded.
