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August 13th, 2010

Is the Battle Over?

By Nathan Tucker

In the wake of Wednesday’s decision by U.S. District Court Judge Vaughn Walker that California’s Defense of Marriage Amendment (Proposition Eight) violated the U.S. Constitution, many here in Iowa have wondered why we should mount the effort to pass a similar constitutional amendment in this state if a federal judge is only going to strike it down.

Some commentators have announced that the battle over gay marriage is over and that anyone who donates money towards an Iowa marriage amendment is throwing their money away.  Strangely, however, we didn’t hear this message of doom and gloom when an Arizona trial judge temporarily held that that state’s immigration law violated the federal constitution.  Despite that ruling, these same commentators didn’t throw up their hands and argue that Iowa should not pass an illegal immigration enforcement law similar to Arizona’s.

Nor is it likely that we would hear such “sky is falling” rhetoric if the lawsuits challenging ObamaCare experience the occasional litigation setback.  Though these lawsuits will almost certainly experience the intermittent bump in the road, these same commentators will doubtless continue to urge Iowa’s Attorney General to join the other Attorneys General in their suit against the federal government.

Judge Walker’s decision should come as no surprise to anyone.  Though he is the first judge to find a federal constitutional right to gay marriage, both opponents and supporters of gay marriage had no doubt that some day, some where a federal judge would take this extraordinary step.  Yet despite knowing that there would be legal challenges, thirty states passed constitutional defense of marriage amendments defining marriage as that between one man and one woman.

Nor is there any reason why Iowa should not join their ranks despite Judge Walker’s decision.  The ruling itself is limited only to California’s defense of marriage amendment and does not affect the laws or constitutions of any other state.  Even if the 9th Circuit upholds the trial court, its decision will only invalidate the constitutional marriage amendments in California and seven of the other eight states in its circuit.  It has no authority here in Iowa or the other remaining forty-one states.

It is also important to understand what this ruling does not hold.  The court only held that California’s marriage amendment violated the federal Constitution; it specifically did not hold that this new right to gay marriage could not be overturned by We the People through a federal constitutional amendment.

No court, at either the state or the federal level, has ever held that a later amendment could not reject any right that a court may read into the Constitution.  The California Supreme Court addressed this issue last year when it held that its earlier ruling legalizing same-sex marriage was not exempt from “the people’s right to ‘alter or reform’ the Constitution.”

Proponents of gay marriage love to quote Supreme Court Justice Robert Jackson when he said “fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.”   But the entire quote, taken from West Virginia State Board of Education v. Barnette (1943), does not address the right of We the People to amend the Constitution as we see fit.  Rather, it only explains that the Bill of Rights was added to the Constitution to “place them beyond the reach of majorities and officials.”

There is, then, no legal authority that prevents Iowans from passing a marriage amendment, and it would be irresponsible to do nothing out of fear that “the sky is falling.”  It would be a dereliction of duty to hold off on passing a marriage amendment until the U.S. Supreme Court ultimately determines its fate, a fate which could as easily be favorable as unfavorable.

And if, thousands of Iowa sodomy marriages later, the Court rules that there is no right to gay marriage, those commentators who now urge us to give up hope will appear foolish and reactionary.  The battle is not over, and Iowans must continue to pursue a state constitutional marriage amendment and, if the day comes when the final court battle goes ill, pursue a federal constitutional marriage amendment.

Finally, it is important to keep in mind that such an amendment is not the only one Iowans need to consider, and voting “yes” for a constitutional convention in November will provide a cost effective approach to not only address marriage but also judicial reform, tax and budget amendments, gun rights, and other issues at the same time.  We the People have a choice this November to act on a range of issues, and we should not be immobilized by fear of what may, or may not, happen in the future.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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