When Liberty Kisses Justice: Equality

The Iowa Supreme Court set the cat amongst the pigeons with their ruling on whether or not the state can ban gay marriage, based on the state’s constitution. Their decision, I believe, is the correct one. Iowa’s state constitution has an equal protection clause. One of the principles of American justice, a principle that religion-besotted conservatives have intentionally swept under the rug, is that legislation is not the supreme law of the land. Above legislation are the constitutions of the various states. It ought to be that way at the federal level as well, but too often isn’t, hence runaway big government.

The god-botherers out there scream when a court rules as this one did. They exhibit their own ignorance by bleating that the justices are legislating from the bench. But what these justices are required to do is judge whether or not legislative law is consistent with, or in violation of, constitutional law. That is their job! They are not usurping powers but judiciously engaging in their primary job.

Members of God’s Own Party (GOP) in Iowa pushed through legislation that explicitly banned gays from having the same marriage rights as straights. The Iowa constitution promises equality of rights before the law. There are exceptions to the concept of equality of rights (more than I think acceptable). With the legislation saying one thing, and the constitution promising another, the Supreme Court is then brought in to resolve the conflict. This means they have to decide, based on the evidence presented to them, whether denying gay couples equal protection qualifies as a legitimate exception or not.

What the Iowa court did, in this case, was issue a very conservative ruling. They upheld constitutional law, and some of the best constitutional law, that Americans have. The radicals in the courtroom were the plethora of religiously-inspired special interest groups demanding that constitutional principles be ignored because they imagine that some supernatural being has demanded that one class of people be treated badly. The Justices were respecting the law, not making law. They said:

The Iowa Constitution is the cornerstone of governing in Iowa. Like the United States Constitution, the Iowa Constitution creates a remarkable blueprint for government. It establishes three separate, but equal, branches of government and delineates the limited roles and powers of each branch. See Iowa Const. art. III, § 1 (“The powers of the government of Iowa shall be divided into three separate departments—the legislative, the executive, and the judicial: and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any function appertaining to either of the others, except in cases hereinafter expressly directed or permitted.”). Among other basic principles essential to our form of government, the constitution defines certain individual rights upon which the government may not infringe. See Iowa Const. art. I (“Bill of Rights”). Equal protection of the law is one of the guaranteed rights. See Iowa Const. art. I, § 6. All these rights and principles are declared and undeniably accepted as the supreme law of this state, against which no contrary law can stand. See Iowa Const. art. XII, § 1 (“This constitution shall be the supreme law of the state, and any law inconsistent therewith, shall be void.”).

The ruling noted that: “This court, consistent with its role to interpret the law and resolve disputes, now has the responsibility to determine if the law enacted by the legislative branch and enforced by the executive branch violates Iowa's Constitution.” Conservatives, who are wailing in distress over the court’s action, ought to remember that the prime cause of over-reaching government today is the result of Courts not checking legislators and executives when their actions violate Constitutional guarantees.

The justices also noted that public opinion matters not one bit. “A statute inconsistent with the Iowa Constitution must be declared void, even though it may be supported by strong and deep-seated traditional beliefs and popular opinion.” Jefferson addressed this when he said: “What is true of every member of the society, individually, is true of them all collectively; since the rights of the whole can be no more than the sum of the rights of the individuals.” Popular prejudice, even if widespread, in itself, is not sufficient cause for making a minority less than equal. The Iowa justices wrote that “the very purpose of limiting the power of the elected branches of government by constitutional provisions like the Equal Protection Clause is [according to Justice Robert Jackson] ‘to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.’”

The idea that law should reflect popular viewpoints, which is implicit in the conservative view, and explicit in many cases, is not even a conservative viewpoint. What today’s conservatives are promoting is a Left-populist view held by some of the more Left-wing justices of the past. During the Progressive Era, the political Left was stymied when they wished to push through legislation that inhibited property rights, freedom of trade, freedom of contract, and such similar “economic” issues. Such laws, while popular with the public, violated various constitutional provisions as they had been historically interpreted. This became most apparent in the early days of the New Deal, where Roosevelt’s anger with the Court overturning popular legislation reached a crescendo with FDR threatening to push through a change on the number of justices on the bench so he could pack the court with fellow “progressives.”

Oliver Wendell Holmes, one of the Left-leaning justices pushed a new theory of Constitutional interpretation. He said that Constitutional provisions should be interpreted in light of “the felt necessities of the times, the prevalent moral and political theories, intuitions of public policy, avowed and unconscious, even the prejudices which judges share with their fellow men.” He said, “What proximate test of excellence can be found except correspondence with the actual equilibrium of force in the community—that is, conformity to the wishes of the dominant power? Of course, such conformity may lead to destruction, and it is desirable that the dominant power should be wise. But wise or not, the proximate test of a good government is that the dominant power has its way.”

Holmes explicitly stated that constitutional principles of the Founders should be ignored. He claimed: “Everyone instinctively recognizes that in these days the justification of a law for us cannot be found in the fact that our fathers always have followed it. It must be found in some help which the law brings toward reaching a social end which the governing power of the community has made up its mind that it wants.” Conservatives have adopted this left-wing view rather explicitly, at least when it comes to the equality of rights of homosexuals. Mention the gay issue and conservatives, who cling to constitutional principles on property and economics, suddenly become raving Progressives demanding that the rights of the one be subjected to the approval of the majority.

But what of the claim that the Founders did not explicitly mention the legal equality of homosexuals when they designed our Constitutional principles? Clearly that is true. After all it was a bit over two centuries ago. What the Founders intended to do was set out some basic principles; principles which they knew were not being applied consistently, across the board. For instance, while some Founders were quite opposed to the issue of slavery, they did not write a Constitution explicitly forbidding it. Such a Constitution could not be ratified, given the prejudices of the Southern states on the matter.

The Founders were aware that the expansion of liberty, and equality before the law, was a long-term project, perhaps an unending one. Future generations would each fight their own battles for the extension of these libertarian principles. At no point did the Founders attempt to enumerate all the rights held by the individual. As James Wilson said, at the time, “Who would be bold enough to undertake to enumerate all the rights of the people?” The Ninth Amendment quite explicitly acknowledges that such an enumeration is not possible and that the failure to list specific rights in the Bill of Rights does not mean the right does not exist. What the Founders gave us was a list of precise, enumerated powers of government and broad, unspecified concepts of individual rights.

Each generation faces new questions about rights not faced by previous generations. The Founders did not believe that their list of rights was exhaustive. So they did not try to enumerate such rights. They said they were offering future generations the broad principles with which they should work when facing new controversies about individual liberty. Jefferson’s said that the “most sacred” duty of government is “to do equal and impartial justice to all its citizens.” That principle was enshrined in the Iowa Constitution, as it was in most state constitutions. Jefferson said our principles of government “secure to all… citizens a perfect equality of rights.”

But today, conservatives are leading a stampede to undermine the concept of equality of rights before the law. They are arguing that their religious sentiments and imaginations require the law to explicitly embrace an inequality of rights. This is precisely what Prop 8 did in California and what many other such “constitutional amendments” have been intended to do. They have radically rewritten a basic constitutional principle, that of equality of rights, and substituted for it one that demands inequality of rights. Such a revolutionary change to a founding principle is hardly conservative in any sense of the word. It is a shockingly revolutionary attempt to overturn the founding principles of the Republic.

The classical liberal views of the Founders were not static. Liberalism itself is not static, but dynamic. It is not that the foundational principles change, but that they are applied to new situations in new times. Even the Founders were captives of their own time and culture, as far-seeing as many of them were. The application of constitutional liberal principles to African-Americans was simply not something that the political culture of their day could accept. But those principles were eventually accepted, albeit it after much hardship, debate and public outrage, somewhat similar to the sort of reaction we see today as these principles are slowly being applied to gay people as well.

Hayek said that true liberalism “wants to go elsewhere, not to stand still.” By this, he meant that liberals accept change when that change is consistent with foundational principles. He warned, “one of the fundamental traits of the conservative attitude is fear of change, a timid distrust of the new, as such, while the liberal position is based on courage and confidence of the preparedness to let change run its course even if we cannot predict where it will lead.” Hayek said that conservatives are not afraid of state power at all and thus is unconcerned “with the problems of how the powers of government should be limited” but are worried about “who wields them.” He warned that the conservative “like the socialist” “regards himself as entitled to force the value he holds on other people.”

Lord Samuel Brittan once argued that: “Many of the classical ideas of nineteenth-century liberalism [i.e. classical liberalism] did not come on the statute books until the 1960s. The battle is still far from won, as can be seen from the sentences still passed on ‘obscene publications’ or the hysterical and vindictive attitude adopted by so many authority figures towards the problem of drugs.”

The classical liberalism of the Founders is always going to move us into new territory. And when it does, there will always be conservative forces, fearful of change, finding excuses to cling to previously held, but erroneous, conclusions. The Iowa court said that their responsibility “is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time.” They wrote:

The framers of the Iowa Constitution knew, as did the drafters of the United States Constitution, that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” and as our constitution “endures, persons in every generation can invoke its principles in their own search for greater freedom” and equality

One of the great things about liberalism, properly understood, is that it doesn’t ask us to cling to the conclusions of the past, just the principles. Those principles embrace a free society, based on individual rights and one that respects the equality of rights before the law. The justices in Iowa did not overturn those principles at all. They unanimously embraced them. And for that they should be applauded.

[Note: this post only covers basic principles as I see them in regards to this case. I urge people to read the entire decision for themselves. Much of the decision discusses why the justices rejected claims that homosexuals, as a class, ought to be denied marriage rights.]