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June 25th, 2010

The Need for a Stay of Court Decisions

By Nathan Tucker

Though Bob Vander Plaats’ proposed executive order “staying” the Iowa Supreme Court’s decision last year legalizing same-sex marriage is misplaced, the idea of a temporary stay to allow the people to amend the Constitution has merit.  Vander Plaats repeatedly said throughout the primary that the Court’s decision put the “onus” back on the legislature, and he is right that they should have had the opportunity to act before the Court’s decision went into effect.

The current Iowa Constitution, as is the case at the federal level and in all other states, does not provide a mechanism that would allow the legislature or the executive to delay a court decision.  Once a court rules that a law or policy is unconstitutional, there is nothing to “stay” it from going into effect.

Courts may, on their own accord, postpone their decision to allow time for various motions to be filed.  This is what the Supreme Court did in the same-sex marriage case when, following its procedural rules, it stayed the decision several weeks.  Also, lower courts may delay their ruling while one party appeals the case to a higher court, which the trial court did in this case as well.

But there is no provision in the Constitution which provides for a court decision to be stayed, even if the Constitution is in the process of being amended to explicitly overturn the court’s decision.  Though a lower court’s decision may be stayed pending an appeal to a higher court, there currently is no stay available when all appeals are exhausted save for the ultimate appeal to the people themselves.

Certainly such a temporary stay is warranted to see if We the People will take up that appeal and reverse the court’s ruling.  To use another analogy, both federal and state constitutions allow the legislature an opportunity to override an executive veto before it becomes final, yet there is no mechanism by which We the People can override a judicial veto before it takes effect.

Under the current system, the earliest (barring a constitutional convention) a constitutional marriage amendment could have been passed after the Iowa Supreme Court legalized same-sex marriage is 2012, three years and thousands of same-sex marriage licenses later.  Once something becomes the law, whether a court ruling or a legislative bill, it becomes nearly impossible to repeal it.

Therefore, the Constitution should be amended to automatically stay for a period of forty-five days any court decision that finds a law or policy unconstitutional.  The legislature does not have to do anything during those forty-five days, but if it does initially pass a constitutional amendment (the first of two votes needed by the legislature) in that time span, then the stay will be extended to allow for the General Assembly to vote on it a second time.  Then, if it passes that hurdle, the stay will be continued until the amendment can come before the voters.

Under the Iowa Constitution, an amendment is ratified if a majority in both the Iowa House and Senate pass the proposed amendment in two consecutive terms of the General Assembly and a majority of the people subsequently approves the amendment at the next election.

Under this proposal, therefore, the Court’s April 3, 2009, same-sex ruling would have been automatically stayed for forty-five days.  If the Iowa legislature had initially passed a constitutional amendment within that time period, the stay would then be extended until the next consecutive term of the General Assembly (the 2011 or 2012 sessions) in order to allow the legislature an opportunity to pass it the second time around.  If the legislature passes it a second time, the stay is further continued until the voters have a chance to vote on the amendment at the ballot box.

Unfortunately, this case has shown that at times the legislature will not pass a constitutional amendment, even if the overwhelming majority of the people want them to.  Because of that, We the People must have the ability to place constitutional amendments directly on the ballot irrespective of political bosses in the statehouse.  Even if, in general, one considers ballot initiatives a bad idea, they should at a minimum be allowed under this proposal for the limited purpose of checking the judiciary.

If the people had the right to place constitutional amendments directly on the ballot, under this proposal they would be given forty-five days after the court’s ruling to gather enough signatures to place the amendment before the voters.  If they were able to obtain the necessary number of signatures, then the stay would be extended until the voters had the opportunity to ratify the proposed amendment at the ballot box.

Amending the Constitution to allow for an automatic, temporary stay of court rulings does not make it easier for ill-advised amendments to be rushed through, to the later regret of voters.  The amendment process itself will be unchanged (except for the possible inclusion of ballot initiatives), thereby continuing to ensure a thoughtful, deliberative waiting period during which proposed amendments can be thoroughly debated.

The only thing that will be changed is that the people will have a chance to engage in the process before judicial activism becomes law.  It is important that the proposed stay be temporary and relatively short in order to ensure that our constitutional rule of law continues and that truly unconstitutional behavior is prevented.

However, it is equally important that We the People have a chance to overturn an unconstitutional law before it takes effect.  This proposal aims to balance both of those vital interests by providing a brief automatic stay to allow the people the opportunity to begin the amendment process and, if they do, it temporarily extends the stay until the process runs its course.

The amendment process, and by consequence the temporary stay, cannot be extended forever.  Under the current amendment process via the legislature, a proposed amendment must be passed in two consecutive terms of the General Assembly.  It cannot be passed by the current General Assembly and then by another one in, for instance, 2020.  The same rule should apply to amendments proposed via ballot initiatives.

It should be noted that if an amendment fails to pass under this proposal, it does not mean that the amendment can never pass at a later time.  It simply means that if a proposed amendment fails along the line to ratification under this proposal, the temporary stay lapses and the court’s decision takes effect.  The same proposed amendment can still be ratified at a later time if the people so choose.

This proposal continues to allow the judiciary to serve as a check on unconstitutional laws and policies made by our elected officials, but it also allows We the People to serve as a check on the judiciary when it engages in judicial activism.  In the end, Bob Vander Plaats was right that we need a stay on the judiciary, he was just wrong on how to implement it.

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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

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