I remember the day Chuck Hurley, president of the Iowa Family Policy Center (precursor to the Iowa FAMiLY Leader), visited me to talk about the need to pass a constitutional amendment banning gay marriage.
First, I remember it because while speaker of the House at the time and because of renovations in the Capitol I was temporarily in Chief Justice Lavarato’s office. He had moved over to the newly opened Supreme Court building. The irony was not lost on either of us that day.
Second, I was then engaged in a constitutional battle. Governor Vilsack had item-vetoed legislation in a manner that I believed exceeded his constitutional authority. Rants v. Vilsack was headed to the Iowa Supreme Court.
Hurley was in my office to convince me that Iowa’s Defense of Marriage Act needed to be put in the state Constitution. Being in state code wasn’t good enough. Based on rulings in other states it was likely to be overturned. The only way to protect one-man-and-one-woman marriage was to put it in the Constitution.
He convinced me and we began the process of trying to pass a constitutional amendment – that failed because Republicans in the Iowa Senate couldn’t muster the votes.
Flash forward to today. The FAMiLY Leader, out on their bus tour, would have us believe that our Supreme Court hijacked the Constitution, usurping the roles of chief executive and Legislature. Justice Wiggins must go or the republic will fail.
That is not true. That is why I will vote YES to retain Justice Wiggins.
I didn’t like the decision, but I wasn’t surprised by it. Nor do I think the judges hatched some nefarious plot of judicial activism. Remember, most of the judges were appointees from Gov. Branstad’s first four terms.
I share this story because those who want to toss Justice Wiggins are the same ones who came to me knowing the law wouldn’t stand up to constitutional scrutiny. Why else put it in the Constitution? Every lawyer I talked to in advance of the ruling who read the briefs submitted to the court told me the law was going to be tossed.
In short, the court did what we expected. Today’s outrage rings hollow.
I don’t support gay marriage. My record in the Legislature and the hate email I’ve gotten from gay rights activists across the country bares that out. But I don’t blame Justice Wiggins and neither should you.
The blame lies with us. We didn’t put it in the Constitution despite ample opportunity. By “we” I mean all of us. There have been three elections since our first attempt and Iowans apparently have chosen to not elect a Legislature to do that.
Two years earlier Iowa’s flag desecration law was struck down as violating the due process clause of the U.S. Constitution. No one screamed “judicial activism.” There were no bus tours. The law was flawed. We knew it. So the Legislature wrote a new law to pass constitutional muster and still protect the flag. The system worked. The Legislature chose not to respond to the court ruling on gay marriage in a similar way. Who is to blame for that? We are. Not Justice Wiggins.
Courts and judges make for easy political foils. They rarely engage in the political shouting match, so they remain defenseless. They don’t buy radio ads explaining their decision, and 99.9 percent of the public doesn’t read them. Their opponents can say anything no matter how outrageous and they will be impassive. They have no Super PACs. While the notion of unelected positions for life and making decisions in secret rub us wrong, our founders set them up that way to protect us.
That is right. While there are bullies out to score political points attacking them, and make money doing so, the courts are there to protect us from such bullies.
The Legislature can and does make bad laws. Laws that infringe upon our rights of speech, religious freedom, self-protection, fair trials, economic freedom. We count on courts to defend us from those overreaching laws. We want those laws struck down.
The last thing we want in Iowa is a court that is engaged in political campaigns, raising money from PACs, and worried about their poll numbers. We especially do not want them responding to threats from bullies.
Justice Wiggins was part of the court that sided with me in Rants v. Vilsack and overturned the governor’s veto as unconstitutional, and limits executive authority in the future. Was that overstepping the court’s bounds, or do we like that ruling only because we like the outcome?
Next week: Al Sturgeon
A Sioux City resident, Christopher Rants is a former Republican state representative. He works for Rauschenberger Partners, a Chicago government relations firm, and recently started his own public affairs business. He and his wife have two daughters.