Tuesday, October 30, 2012

To all voters in the Carroll area:

On Nov. 6, the back of your ballot is just as important as the front.  That is because, as I am sure you are aware, the back of your ballots will determine whether Justice David Wiggins is retained or ousted. And, on Nov. 6, voting “yes” to retain Justice Wiggins is just as important as voting for any political office.  That is because preserving the independence of our courts is essential, regardless of your political views.

Justice Wiggins’ retention is in jeopardy because he was a member of the Iowa Supreme Court in 2009 that unanimously struck down Iowa’s marriage law, which recognized only opposite-sex marriages.

The law stated, “Marriage is a civil contract,” but “only a marriage between a male and a female is valid.”  The court held that the statutory restriction recognizing only marriages between a man and a woman violated the equal-protection clause of the Iowa Constitution.  

I recently graduated from law school and passed the Iowa Bar exam, but I do not claim to be a constitutional law expert. Thankfully, no constitutional law expertise is necessary to recognize that the court’s decision was the only reasonable decision. The language of the Iowa Constitution is clear, as is the language of the law the court struck down. The law granted to same-sex couples the privilege of the “civil contract” of marriage, while denying it to same-sex couples. The Iowa Constitution clearly states that “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.” The conclusion reached by the Iowa Supreme Court was unavoidable. The General Assembly acted inconsistent with the Iowa Constitution. As it has done numerous times in the past, the Iowa Supreme Court carried out its constitutional duty and struck down an unconstitutional law.

My legal training has taught me enough to conclude that the court’s decision is impenetrable from a legal perspective. The problem, however, is that many of those who advocate the removal of Justice Wiggins based on this decision do not recognize that the Court’s decision was based on the law and the Iowa Constitution — and not at all on religion.

Let me put it this way:  even if you believe homosexuality is the sin of all sins, voting “yes” to retain Justice Wiggins is still the appropriate decision.

I will explain why. The law that the court overturned in its decision governed, in its own words, the civil contract of marriage recognized by the State of Iowa. The court’s decision does not and will not affect the religious institution of marriage.  

The court clearly stated as much in its decision: “Religious doctrine and views contrary to this principle of law are unaffected, and people can continue to associate with the religion that best reflects their views. A religious denomination can still define marriage as a union between a man and a woman. … The only difference is civil marriage will now take on a new meaning that reflects a more complete understanding of equal protection of the law. This result is what our constitution requires.”  

The court’s decision, therefore, has no effect on religious marriage. That is significant, because it means the belief that homosexuality is wrong and the belief that the court made the right decision based on the Iowa Constitution are not in conflict.

Additionally, voting “no” could have a substantial negative impact on the independence of our judiciary.  As I explained, the court based its decision on the equal-protection clause of the Iowa Constitution. In making its decision, the court was aware of the public backlash it might face, but it didn’t matter — the court had a duty to uphold our state’s constitution, and that’s what the court did.

Voting “no,” however, will send a message to judges that looks something like this: You better start ruling based on public opinion, campaign contributions, and political influence, or you will be voted out.” Is that really how we want our state’s highest judges to rule? Is this really how we want the Iowa judicial system to be perceived — justice for sale?

As the Des Moines Register explained in its editorial on Oct. 25, “Protecting the rights of unpopular minorities from the tyranny of the majority is the foundation of our nation’s Bill of Rights. Some things must be off-limits from a majority vote, chief among them protections for religious, racial and other minorities.”  

The Iowa Supreme Court is sworn to uphold the Iowa Constitution and the U.S. Constitution, and is ultimately responsible for determining whether Iowa laws conform to the Iowa Constitution. It is ultimately their responsibility to ensure that the rights of the unpopular minorities are protected.

Plus, voting “no” will not change the court’s decision. Only a constitutional amendment can change the court’s decision, and that is a discussion for another day.  Voting “no” and ousting Justice Wiggins will only inject politics into our courts.  

Some have suggested that the court “legislated from the bench” or “made new law.” Those accusations are simply not accurate. The court did not create any law; it interpreted an existing law and determined that it was in conflict with the Iowa Constitution — which is precisely the job of our judicial branch. Further, no “new” rights were created. Yes, same-sex couples now have the right to have their marriages recognized by the state (a right they were denied before), but the court concluded that based on our state constitution, they should have had this right all along.  

To argue, as some have, that the court created rights that the Founding Fathers could never have envisioned ignores more than a century and a half of Iowa Supreme Court history recognizing such rights — from recognizing the right to be free from slavery to the right to practice law as a woman.  Those who drafted Iowa’s Constitution, like those who drafted the U.S. Constitution, were smart enough to realize they didn’t know everything, and could not predict everything, and created a foundation that would allow freedom to flourish as this great country and this great state advanced and blossomed.

Finally, no rights or liberties were infringed by the court’s ruling.  If you are an opposite-sex couple, for example, absolutely nothing changes; your marriage is entirely unaffected by the fact that a same-sex couple can now legally get married. If you believed before the court’s decision that marriage is a sacred bond between a man and a woman, you still have the right to believe that, and no one can take that right away from you. Your church is free to continue to recognize only “traditional” marriages.

The simplest way to put it is this: voting “yes” is not about religion or political affiliation or even same-sex marriage, but it has everything to do with preserving the impartiality and credibility of our courts.

On Nov. 6, please turn over your ballot and vote “yes.”