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Monday, April 6, 2009

Judicial Tyranny in Iowa

When the Constitution was created, the Founding Father's biggest fear was that the judicial branch would have little power. After all, the Judiciary can't enforce any of their policies. Their fears materialized Worcester Vs. Georgia when the Supreme Court made a decision that then President Andrew Jackson disagreed with and Jackson proclaimed.

John Marshall has made his decision; now let him enforce it

Such open defiance of the Supreme Court is long a thing of the past and now if there is a fear regarding the Supreme Court it is that it wields too much power.

It's also, however, true that the term "judicial activism" is often used by those that disagree with any Supreme Court decision. So, the line between interpreting a law in a way that some disagree with and merely making law itself is often a fine one that is usually in the eye of the beholder. Opponents of the decision of Roe V. Wade often cite that case as a prime example of Justices legislating from the bench while supporters often cite that same case as an example of judicial courage.

It's likely that the decision last week by the Iowa Supreme Court will have similar debate by both opponents and supporters alike. The ruling once again displays the debate over the court.

The Iowa Supreme Court on Friday unanimously upheld gays' rights to marry, saying the state's same-sex marriage ban violates constitutional rights.

"The Iowa statute limiting civil marriage to a union between a man and a woman violates the equal protection clause of the Iowa Constitution," the court wrote in a summary of their decision.

The decision makes Iowa the third state where gay marriage is legal, behind Massachusetts and Connecticut.

Of course, there is a lot of interpretation to this ruling. Some may in fact call this courageous. I will not be one of them. By saying that the banning of gay marriage violates the equal protection clause, they have in fact created a whole new interpretation for equal protection. That's because the ruling only legalized gay marriage. It didn't legalize polygamy, bigamy, and swingers to marry. As such, by only legalizing gay marriage, the justices are deciding for themselves which relations are in fact equal to the traditional ones in which we can continue to discriminate against and deem outside the protection of the equal protection's clause.

What this ruling said was that the gay relationship is equal to the traditional relationship, but all other relationships are still not equal. Yet, it also said that only allowing traditional marriage violates equal protection under the law. As such, the justices are perfectly happy to give gay relationships equal protection but not polygamist relationships. The logic is oozing with irony and confusion.

To me, this is boiler plate judicial activism and judges legislating from the bench. The judges think that gay marriage should be legal and they have used this case to make social policy. That's not what the Supreme Court is there for. The Supreme Court is there to interpret law for its Constitutionality. If marriage is an issue of "equal protection", then everybody must be protected equally: gays, swingers, polygamists, bigamists, etc. That's not what they did. Instead, they extended equal protection to gays and gays only. The justices made law under the guise of interpreting the Constitution.

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