Last week’s election here in Iowa has ignited quite the firestorm. All of the typical races (governor, senators, congressmen) took a backseat to the judicial retention vote. For those of you living under a rock (spoiler alert) all three of the Iowa supreme court justices lost their seats. The retention vote came as quite a shock to most people, even the people who voted no on retention. It’s stirred intense conversation across the state, even the nation. I’ve had a couple of conversations with friends and coworkers, and wanted to take some time to write out why I voted no.
To start out, I voted no on all the judges up for retention. This includes the three supreme court justices down to the lower court justices. That’s the what, now here is the why. Judicial arrogance. Those in favor of retaining the justices have said that it’s wrong to not retain judges based on just one issue. Not only is this presumptuous, it’s short-sighted. The reason I voted no on retention is because I don’t believe that the end justifies the means. How you arrive at a conclusion is just as important as the conclusion itself. Even if I agreed that their ruling on DOMA (Defense of Marriage Act) was right (which I don’t, and we’ll get to that later) you can’t circumvent the whole legislative branch by using justices to make laws.
Now this is where it gets tricky. Those in favor of the justices striking down DOMA argue that the justices were just doing their jobs by ruling that DOMA was unconstitutional. They say that DOMA took away the right of gay and lesbian couples to marry. That’s simply not true. DOMA didn’t take away rights at all. Those rights (the right for two people of the same gender to marry) have never existed before. It wasn’t as if Iowa and the rest of the United States were in the throes of gay marriage and DOMA came along and took that away. DOMA was a bi-partisan bill that sought to clarify that marriage is between one man and one woman. People understood what was coming our way, and DOMA was put in place to say, “Hey, just so we’re all clear, one man, one woman, that’s marriage”. People may not agree with DOMA, but the fact is that it didn’t take away pre-existing rights, and it was passed with bi-partisan support in the legislature.
Why is that important? Because what the justices did was not merely strike down an unconstitutional law, but the replaced it with a new law. It wasn’t like DOMA required the LGBT community to wear purple armbands in public, and the justices struck down that law. They struck down the ban on gay marriage and made gay marriage legal. They made a new law. If your going to make and enact a new law, that has to go through the legislative branch. Making new laws by declaring old ones “unconstitutional” is all the rage now. What started with Roe vs. Wade has snowballed, and now if you want to make laws you don’t sign up to be a congressman or senator, you become a judge. That is the judicial arrogance I’m talking about. It’s this attitude that they know better than the American people do, so they’ll make our decisions for us. The end doesn’t justify the means, and the fact that seven people can overturn a bill passed with bi-partisan support should concern you. The constitution was designed with a system of checks and balances, and even if you agree with overturning the ban on gay marriage, it’s clear that there aren’t enough checks & balances in place when justices can make new laws on a whim. What last week’s election had to say about this whole situation is not merely that a majority of iowans do not support gay marriage, but that they were willing to exercise the only check and balance they felt they had left at their disposal, their vote. You may not agree with with the outcome of last week’s election, but you have to respect the process. The three justices who lost their jobs didn’t, and that’s why they were handed an early retirement.
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