Strengthening Constitutional Self-Government

No Left Turns

Judicial Arrogance in Iowa and the Tearing Down of Equality

Jennifer Roback Morse posts an informative discussion of the methods employed by advocates of same sex marriage (advocates from within and from without the courts, I’d add) to get Iowa’s laws about marriage overturned. One especially disturbing thing (which, I confess, I had naively not considered prior to reading this) is the behemoth sized financial and legal firepower same-sex advocates (especially Lambda Legal with a budget that vastly over-shadows that of the entire court system in Polk County, Iowa) brought to bear on this case. More telling, however, was the way in which the courts in Iowa (beginning with the trial court) simply refused to listen to the evidence provided by marriage defenders and, instead, declared the presentation of relevant facts as dictated by same-sex advocates to be "undisputed." When cries of objection were raised as the case proceeded to the Supreme Court, the Court simply remarked that the relevant facts would be reviewed by them and so the oversight in the lower court did not amount to a real concern. Yet, the "review" of the evidence in the Supreme Court (evidence that has been found to be persuasive in other states, including New York) amounted to its dismissal as consisting of nothing more than "stereotypes"--all of this without citation or supporting evidence, of course.

Roback Morse is insightful in noting: "The debate over marriage hinges in large part on what people think is the subject: Advocates of genderless marriage believe it is about fairness and equality. Advocates of conjugal marriage believe it is about the role of marriage. By dismissing testimony so obviously germane to the functions of marriage in society, the Iowa courts prejudged the case and tacitly declared equality to be the only issue." It seems to me that this is exactly what has happened in the Iowa case and, while it highlights exactly why same-sex and traditional marriage advocates seem to be talking past each other, this shift in the focus of the argument is an especially bad development. It is bad not only because it means that marriage is likely to be undermined in a growing number of states, but also because it means that we are getting ever more distant from an ability to think clearly about the meaning and importance of equality.

If equality before the law boils down to a demand that the law be required to accord equal respect and privileges to the innate desires of every human being and not simply that the law (because of our natural human dignity) should be applied with equality to all regardless of each person’s peculiar idiosyncrasies--then we are turning the foundation of our regime and the legal system born of its principles on its head. We are saying that differences justify the granting of additional privileges to some citizens. In other words, we are trying to argue that inequality is equality. Some citizens may chose a male or a female spouse as they prefer. It is neither here nor there that the "privilege" or "right" of same sex marriage must now be open to all citizens in theory, because the foundation of the thing comes from an argument about equality that is rooted in our differences rather than in our common nature. Intellectually, it opens the door to any number of arguments that could gradually chip away at the cornerstone of American civilization.

It really is not my intention to come across as an alarmist on this front. Personally, I do not harbor any ill will or anxiety about my homosexual friends and neighbors. I think they should live and be well--and enjoy the same rights and privileges as every other American. I wish them the best of luck and happiness in all of their endeavors and I am even open to legal arrangements that ensure their protection in most domestic arrangements--including, in some cases, adoption. But words mean things. Marriage, for example, means the coming together of opposites for a common and civilizing purpose. It’s how we come to accommodate (and, one hopes, appreciate) our important sexual differences. This can be tough work and, obviously, not everyone is cut out for it. It’s failure rate is a testament to that (and perhaps not unrelated to the push to change its terms). But equal treatment before the law does not mean that each individual can come before the law (or before the court of logic) and tweak it in order best to suit his own preferences--however hard-wired those preferences may be. If that is the case, then marriage means nothing because it can change with your preferences. Moreover, equality does not mean inequality. And the foundation for the respect of equality in the American regime is not to be found in what makes us different but, rather, it is to be found in what we all as human beings share in our common human nature. Human dignity requires equal treatment before the law, certainly. But human dignity cannot be respected if we shift our focus to individual differences rather than common nature.

Discussions - 4 Comments

Having been a rather High Church Anglican once (before such creatures were declared irrelevant if not perverse) I'm constantly surprised that the "Church and State" argument re the 2nd amendment seems to never touch on the meaning of "establish" in the context of the 18th century ex-British subjects who penned it.

That said, on a note more pertinent to the current issue, I'm equally surprised that there isn't more discussion of whether marriage, as a sacrament, is in fact an appropriate subject for a State without an Established Church to dabble in. Might we consider simply declaring all State-sanctioned marriages to date valid, then henceforth limit the State's role to issuing Writs of Civil Union to any two persons of adequate years and sufficient mental competency. Perhaps we could leave decisions about Holy Matrimony to the tender mercies of Bishops, Synods and Presbyters? Not that they're likely to do a better job than Judges, but at least we don't get taxed to pay their keep.

Just a thought.

To all gays: Mrs. Ponzi has no intention to come across as alarmist on this front, but your wanting equal rights chips away at the cornerstone of american civilization.

equal rights means that two straight men can't marry and neither can two gay men, period.

I've always thought that the bank president and the bank robber should have equal rights to the institution. Finally--a court verdict I agree with!

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