Written by William C. Brown
An Attorney with BrownWinick in Des Moines
The April, 2009 decision of the Iowa Supreme Court in Varnum v. Brien has resulted in loud cries from many Iowans for an amendment to the Iowa Constitution outlawing gay marriage. Leadership in the Democratic legislature, however, has turned a deaf ear to these pleas in order to shield Democratic legislators from taking a difficult vote that could either haunt them in upcoming reelection fights or offend their liberal constituencies. In light of the likelihood that there will be no approval of a gay marriage prohibition in this session of the legislature, what should opponents of gay marriage and an activist judiciary do?
There are two ways provided for amendment of the Iowa Constitution. The first, and more familiar mechanism, is provided in Article X, Section 1. This method requires both chambers of the legislature to approve the proposed amendment in two successive legislative sessions (note – legislative sessions last two years, and we are currently in the second year of this legislative session), and then further requires approval by a majority of voters in such manner and at such time as the legislature shall provide. Since it is evident that this session of the legislature will not approve an amendment, the first time that such an amendment could conceivably be voted upon by the people would be in mid 2013 (after passage by the 2011-2012 legislature and passage by the first annual meeting of the 2013-2014 legislative session). It is likely that both chambers of the legislature would need to be controlled by Republicans in both the 2011-2012 and the 2013-2014 legislative sessions in order for this to happen since Democratic leadership of a Democratic controlled House or Senate is not likely to let the matter be brought up for debate for the same reasons Democratic leadership this year will not allow debate on the issue.
The other manner for amending the Constitution is by calling for a constitutional convention pursuant to Article X, section 3 of the Constitution. This provision requires that every tenth year (including in the 2010 general election) the following question be submitted to a vote: “Shall there be a convention to revise the constitution, and propose amendment or amendments to same?” If a majority of the voters respond in the affirmative, a constitutional convention is convened. What most people do not know, however, is that the delegates to such convention are elected in the manner provided by the next legislature – not the legislature this session controlled in both chambers by Democrats. Should Republicans take control of both houses of the legislature through the November, 2010, elections, Republicans would then control the election of delegates to such a convention. Even if the Republicans were only to gain control of one chamber, Republicans would still have significant and equal input into the selection of delegates and, hence, the issues addressed in the convention. Once the convention is held, the Constitution is only then amended if, in a subsequent vote, a majority of citizens approve the amendments proposed by the convention.
Conventional wisdom holds that we should not call a constitutional convention because Democrats will control the agenda at the convention and we should not risk adverse changes to the constitution which may therefore occur. There are several reasons this view does not hold water.
First, as pointed out previously, it is far from certain that Democrats will control the output of the convention, since it is next year’s legislature that determines the manner of selection of the delegates, not this year’s legislature. The agenda is only controlled by Democrats if they retain control of both chambers of the legislature after the 2010 election.
Second, even if Democrats control the convention and propose adverse amendments, the adoption of such amendments remains subject to a vote of the people, and hence the ultimate of checks and balances still resides with the people rather than politicians.
Finally, should the Democrats propose amendments that are contrary to the will of the people, not only will those amendments be defeated when voted upon by the electorate, the electorate would most likely also penalize the Democrat incumbents coming up for election at or near the time the proposed amendments are voted upon. Moreover, any failure of Democrats to allow a substantive debate and vote on the gay marriage issue in the constitutional convention would also have adverse political effects for Democrats when it would be clear to the electorate that the Varnum decision was the principal reason for calling the convention. Such events would likely have the corollary impact of increasing Republican influence in the legislature – perhaps to the extent that then an amendment could be proposed to the electorate through the mechanism of two successive legislatures approving such an amendment.
There is another important reason why calling for a constitutional convention may be a better mechanism to address the problem. While I oppose the legalization of gay marriage, I am less troubled by the concept of gay marriage than by the judicial activism which enabled this decision to be rendered. In my view, the problem is not just the Varnum decision itself, but the risk that judicial activism will produce other adverse decisions contrary to the will of the people and that it will remain difficult, if not impossible, for the citizenry to overturn the court’s decisions. For instance, what if a future court eliminates the ability of parents to home school their kids? What if a court eliminates tax deductions for charitable contributions to a church as an impermissible state support of religion? Such decisions may seem far fetched, but it was not that long ago that it was inconceivable that a court would legalize gay marriage.
What I believe is needed is not just a simple amendment to outlaw gay marriage, but a broader amendment which would either limit the court’s power to overturn longstanding law and public policy that pre-dates the constitution itself, or which would provide a better mechanism than the current constitutional amendment mechanism for the electorate to overturn overreaching activist court decisions. It is far more likely that an amendment of this sort could emerge from a constitutional convention than through the cumbersome process of obtaining the support of both legislative chambers in two successive legislative sessions.
If we are serious about overturning the court’s decision in Varnum rather than just providing fodder for attacking Democrats in the next election, it is important that we vote this year to call a constitutional convention. Not only could the issue be addressed sooner in this way (2011 rather than 2013 or, more likely, later), but the core problem of judicial activism which resulted in the decision could be effectively addressed, rather than just dealing with the symptom of the decision itself. No doubt there is some risk in pursuing this strategy since Democrats may remain in control of both chambers of the legislature following the 2010 election, but the checks and balance of the amendment process and the political risks Democrats will face if the convention gets out of hand will ameliorate this risk. In any event, nothing worth doing is done without risk, nor is anything ever accomplished if no risk is taken. If we fail to take advantage of the opportunity to amend the constitution by calling for a constitutional convention in the 2010 election, we may not have an opportunity to amend the constitution again until 2020.
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