An Iowa judge has decided that his opinion outweighs that of the people of the state by striking down the Defense of Marriage Act which was passed by Iowa voters in 1998.
In his ruling, Hanson said the state law allowing marriage only between a man and a woman violates the constitutional rights of due process and equal protection.
"Couples, such as plaintiffs, who are otherwise qualified to marry one another may not be denied licenses to marry or certificates of marriage or in any other way prevented from entering into a civil marriage... by reason of the fact that both person comprising such a couple are of the same sex," he said.
The judge said the state law banning same-sex marriage must be nullified, severed and stricken from the books and the marriage laws "must be read and applied in a gender neutral manner so as to permit same-sex couples to enter into a civil marriage..."
I've stated before that if people want gay marriage, then support it legislatively. Going through the court system is a way to allow one judge's opinion to supersede the will of the People. Now the Iowa legislature will have to create an amendment to the Iowa Constitution to do what the People want: define marriage the way it has always been done.
This is turning the legislative process on its head. It would be a bit like writing laws that define legal behavior as opposed to what is illegal. In short, the ones who should be having to go through the amendment process are those in favor of homosexual marriage. After all, they are the ones wanting a new definition of a centuries-old institution.
Jeff Goldberg has a nice post on the ruling.
If, as Judge Johnson notes, the state has elsewhere declared marriage a “fundamental right,” then he may have some footing to be upheld on appeal — though to follow that up with “and as such, the state can’t choose who people can or cannot marry” is ridiculous, unless of course the state is willing to grant marriage licenses to grade school sweethearts, or a man and his three paramours.
Still, even if marriage is seen as a fundamental right, there is nothing prohibiting homosexuals from marrying. They just can’t “marry” someone of the same sex, because that arrangement does not fit within the traditional and culturally-defined idea of “marriage.”
I have listened to the argument that by forcing monogamous gay couples to call their arrangements something other than marriage, opponents of same-sex marriage are trying to enforce a “separate but equal” paradigm akin to Jim Crow.
But nobody is arguing that gay couples shouldn’t be allowed to sit at the same luncheon counter as married couples, nor is there any desire to see them ride in the back of the bus.
Instead, the argument is that the kind of arrangement the same sex couple is engaging in is different from marriage as it is traditionally defined, and so it makes sense to call this new arrangement something other than marriage.
It is, of course, easy (and correct, I should add) to note that once we allow same-sex unions to be called marriage, we will have effectively changed the definition of marriage, making same-sex couplings “marriage” by dint of broadening the definition to accommodate the new arrangement. This is, after all, how traditions evolve and take on new components.
But when dealing with a tradition as sacrosanct to many as the marriage bond, the government and the judiciary should tread lightly. On many occasions I’ve said that I’d be happy to abide any state legislation voted on by the electorate that sanctified same-sex couplings as “marriage.” This is, I believe, the proper way to bring about such changes.
By circumventing that process and finding in marriage a “civil right,” the judiciary is greasing a slippery slope for other challenges to traditional views of marriage (and family) that I can’t envision withstanding legal scrutiny.
This is not an application of the law we’re witnessing. Instead, it is a form of moralizing from the bench — and it emboldens social engineers of all stripes to look at court precedents analogously to find in their pet projects legal ground for overturning traditions that they cannot convince the electorate to overturn through the legislative process.
The fact is, such dramatic alterations of long-standing institutions do not comport with traditional notions of the Constitution. The idea that all sorts of rights--from abortion to gay marriage--were "hidden" in the Constitution is nonsense. There's nothing short of imagination which explains the idea that the 14th Amendment supports the host of philosophies the Left wishes to include. If Americans want gay marriage as a Constitutional right, there's already a process in place to make it happen: the amendment process.
|