Friday, April 03, 2009

Help me out here...

Here's RNC National Chairman Michael Steele on the Iowa Supreme Court's decision to overturn its gay marriage ban:

The Iowa Supreme Court's decision today to reverse an 11 year old state law outlawing same-sex marriage is sadly another example of judicial activism currently threatening family values in America. While I respect an individual's right to live his or her life as they see fit, decisions like this are better left in the hands of legislators and governors.

I firmly believe that marriage should be between one man and one woman. A state's autonomous nature allows it to change its laws as the citizenry sees fit, but it should be done by the people, not through judicial decree.


There are so many things haywire in this brief couple of paragraphs that my head starts to spin a little bit.

--Why is "judicial activism" (and, to be clear, I don't think that's happening) any preferable to legislative or executive activism?

--Isn't it the job of Iowa's Supreme Court to interpret its Constitution? How is this ruling doing anything more or anything different from that?

And finally, this quote: "A state's autonomous nature allows it to change its laws as the citizenry sees fit."

Ick. He's saying that the majority of citizens can infringe on the rights of a minority of citizens if it "sees fit" to do so. If a state "saw fit" to go back a century and reinstate Jim Crow laws, thereby taking away a minority group's civil rights, it would be the Supreme Court's duty to strike down those laws. That's what happened in Iowa.

If Mr. Steele (or anyone else) wants to argue that marriage is not a civil right, or that it's okay for a state to confer the privileges of marriage unequally, I would listen (although I would be highly skeptical). But the series of nothing arguments in the above quote does absolutely nothing but make me cheer for Iowa's Supreme Court even harder.

3 comments:

Joe said...

As you know, I think it's blindingly obvious that the State's only interest in marriage is in enforcing contracts, and the idea that a boilerplate contract should be enforced differently when it's between a man and a woman than when it's between a man and a man (or, here's a thought, among a group of men and/or women) is offensive.

That said, you ask:

Why is "judicial activism" (and, to be clear, I don't think that's happening) any preferable to legislative or executive activism?

Well, the logic is that legislators are directly elected by the populace, so their activism _is_ our activism. Judges and bureaucrats are generally not elected, and therefore they can pursue agendas which are not what the people want. So the soundbite is that judicial activism is anti-democratic, while legislative activism is democratic. And Democracy Is Good.

The counter-argument is probably best posed by Plato, who said that the best government would be rulership by philosopher-kings. Why wouldn't you want government by educated experts? Strictly interpreted, of course, it is a pretty anti-democratic argument. It suggests that people with the education and training (i.e., people with the _access_ to education and training) deserve more say in government than those without it.

"Judicial Activism" - pity such a complex issue has been distilled to such a useless soundbite.

And of course, there's the basic fact check (which I haven't bothered to do myself) whether Iowa's Supreme Court is elected or appointed. I know I vote for Ohio Supreme Court justices, so in my state, this argument simply doesn't apply (at the Supreme Court level).

TeacherRefPoet said...

Joe--

Thanks for getting to the heart of the matter. We elect our state supreme court justices here in Washington too. In Iowa, Wikipedia tells me, justices are appointed by the governor but are subject to retention elections every year. So while they didn't vote them in, if they're mad, they can vote the guys out.

I think the problem I have with Steele's remarks is the same problem I have with voting for justices to begin with. The purpose of any Supreme Court is not to make law, but to determine its Constitutionality. They don't make the laws, they say whether they're kosher. (The Iowa court wouldn't have had the chance to throw the law out if Iowa passed the damn thing to begin with.)

I'm not even remotely qualified to determine whether a judge is interpreting the Constitution properly. I'm certainly confident that the constitutions of Iowa and the US don't allow for some adults to enter contracts and others not to (as you so nicely distilled the government's view of marriage). But I WANT our Constitutional experts NOT to be beholden to the people. And I don't want a majority of people to decide who has rights and who doesn't when the Constituation says we all have them.

So yes, I do want a "philosopher king," or at least a trained expert, in this role. We can bypass the vote for such a specialized position.

Joe said...

The purpose of any Supreme Court is not to make law, but to determine its Constitutionality.

It's interesting that, when you say this, you're agreeing (in principle) with Steele. He believes that these "philosopher kings" are wrong in this case. They're not seeing what the words on the page say, they're seeing what they wish the page said. They believe their privilege gives them the right to read between the lines of the law.

They're not doing their job, and that's another reason why "judicial activism" is worse than "legislative activism."

(It is interesting how often this is a sour grapes argument... then again, it's interesting how wise the judges are when they agree with you.)