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Preserve judicial review; oppose gay marriage bill

BY DI EDITORIAL BOARD | MARCH 02, 2011 7:20 AM

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For opponents of same-sex marriage, Iowa’s judicial branch has been very inconvenient.

The Iowa Supreme Court’s 2009 ruling in Varnum v. Brien stymied conservative attempts to ban same-sex marriage in the state by overturning a law declaring marriage to be between one man and one woman. But five legislators have figured out a way to avoid this problem: Take the Iowa Supreme Court out of the legislative process by introducing a bill that cannot be appealed.

The DI Editorial Board has expressed support for same-sex marriage numerous times in the past, so we obviously disagree with the views of the bill’s proponents. In this case, however, we particularly object to the representatives’ methods. Introducing a bill outlawing same-sex marriage in direct contradiction of last year’s landmark Iowa Supreme Court decision, and attempting to place the law above the court’s jurisdiction is irresponsible; invoking a rarely used Constitutional provision to exempt it from judicial review stands counter to a unique purpose of the courts: protection of minority rights from majority vote.

House File 330 was proposed in the House Judiciary Committee by Republican Reps. Dwayne Alons, Glen Massie, Kim Pearson, Tom Shaw, Royd Chambers, and Betty de Boef. The bill issues an order prohibiting county recorders from issuing marriage licenses to same-sex couples and includes a provision that prevents it from being appealed to the Iowa Supreme Court — a provision allowed for by the Iowa Constitution, which states in Article 5, Section 4 that the Legislature can impose restrictions on what laws the Supreme Court can review.

The federal government does the same thing, UI Associate Professor and Constitutional law scholar Tim Hagle told the Editorial Board Tuesday. Hagle explained that Congress can set the jurisdiction of the Supreme Court by law, and that Iowa legislators are attempting to do the same thing on the state level.

Whether or not the action is strictly constitutional, however, it would seriously undermine one of the eminent functions of the court: judicial review, which exists to ensure that legislation stays within the boundaries delineated by the Constitution. Subsequently, the establishment of the Constitution (bolstered by the process of judicial review) as an authority serves to defend minorities against majority and legislative tyranny.

The likelihood of the bill passing is low. While Republicans hold the majority in the House, Democrats have a slim advantage in the Iowa Senate, and they are preventing debate on a Constitutional amendment to ban same-sex marriage that was passed in the House earlier this year.

Even if the law did pass, however, it would not be untouchable. Although lower-court decisions on the law would not be appealed on the state level, the law could be reviewed by a federal court under the equal-protection clause of the 14th Amendment to the U. S. Constitution. If the decision continued to be appealed, it would reach the Supreme Court, where, Hagle said, the law would probably be overturned: “I would find it pretty unlikely that a federal court would allow this.”

He explained that this type of law is similar to issues in previous Supreme Court decisions, which the court determined to be unfairly targeting a class of individuals. “The swing vote on the issue would be Kennedy, and I think he would vote to strike the law down.”

We can only hope so. House File 330 represents a new low in the crusade against gay marriage. Passing bills with the stipulation that they cannot be reviewed by the state Supreme Court sets a dangerous precedent, particularly when it is done with regards to minority rights — while it may be Constitutional, exemption from review ought to be reserved for unique situations.

The anti-same-sex-marriage members of the Legislature have a right to advance their views through legislative proposal and debate; they do not have the right to chip away at the role of the judiciary over a ruling they do not find amenable to their interests. The judicial-recall elections in November 2010 have done enough damage; let’s not further undermine Iowa’s separation of powers.


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