Bob CollinsThe Associated Press today is carrying a fascinating story about Gov. Tim Pawlenty’s latest trip to Iowa, during which he explained his view of the role of judges in the same-sex marriage debate.
Granted, Pawlenty repeated many of the same stump-style phrases we’ve heard before. But he said it in Iowa, where the Supreme Court last year ruled a definition of marriage as between one man and one woman was unconstitutional. And he said it on a day when a San Francisco federal court judge said same-sex marriages could resume in California in about a week.
“I think the law should support that, and to the extent you have judges inserting their personal views to change that, I don’t like it,” Pawlenty said of traditional marriage.
Pawlenty’s comments, however, reduce legal rulings in Iowa and San Francisco to mere personal opinions, when, in fact, both cited case law in building the foundation for their ruling.
There may well be case law that Pawlenty has in mind to counter the the rulings, but he doesn’t provide it. He provides his opinion that marriage should be between a man and a woman.
In Iowa’s Supreme Court ruling, the justices seemed to anticipate Pawlenty’s — and others’, of course — reaction, reminding them that people wrote the constitution of the state with the idea that judges would uphold it, rather than bending to popular opinion:
When individuals invoke the Iowa Constitution’s guarantees of freedom and equality, courts are bound to interpret those guarantees. In carrying out this fundamental and vital role, “we must never forget that it is a constitution we are expounding.” M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407, 4 L. Ed. 579, 602 (1819). It speaks with principle, as we, in turn, must also. See State v. Wheeler, 34 P.3d 799, 807 (Wash. 2001) (Sanders,
J., dissenting).
Finally, it should be recognized that the constitution belongs to the people, not the government or even the judicial branch of government. See Iowa Const. art. I, § 2 (“All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people, and they have the right, at all times, to alter or reform the same, whenever the public good may require it.”). While the constitution is the supreme law and cannot be altered by the enactment of an ordinary statute, the power of the constitution flows from the people, and the people of Iowa retain the ultimate power to shape it over time. See Iowa Const. art. X (“Amendments to the Constitution”).
The same is true in the California case. The judge there provided 81 citations of law that he said prove — under the Constitution — that people of the same sex have access to civil marriage. He also anticipated the reaction
“An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters’ determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives.”
So what are the justices saying? That when it comes to interpreting a constitution, your personal opinions don’t matter, either.
It’s also important to note that in both cases, the judges are ruling, not on a moral question, nor even on a traditional question, but on a constitutional question that demands that those who disagree provide constitutional reasons in response.
There are two possible solutions for those who disagree with the rulings. One is to change the constitution. The other is to change the judges and hope they read the constitution differently.
In Iowa, Pawlenty is supporting the latter. A movement there is seeking to replace the three justices who ruled — unanimously — in the Iowa case.
If you’ve never quite understood why Minnesota did not allow judges running for election to give their views on issues, this is why.
