The defenders of the Iowa Supreme Court’s decision in Varnum v. Brien (2009) love to quote former U.S. Supreme Court Justice Warren E. Burger for the proposition that judges should “rule on the basis of law, not public opinion, and they should be totally indifferent to pressures of the times.” The reality is, however, that the justices in Varnum did base their decision on public opinion and the pressures of the times.
While they may have ignored the public opinion of the majority of Iowans on the subject of same-sex marriage, the Iowa Supreme Court justices were quite cognizant of the opinions of those they cared about the most—the legal establishment. Far from showing their independence from the pressures of the times, the justices simply followed the opinion embraced by too many of their peers.
For Varnum did not occur in a vacuum, but was merely the product of an activist culture within the Bar associations and law schools. For instance, a survey in the late 1990s by Professor Deborah Jones Merritt revealed that only 10% of American law professors would characterize themselves as conservative, while another study by Professor James Lingren indicated that 80% of legal academics are registered Democrats.
The situation is even worse at the Iowa Law School, where over 90% of its faculty are registered Democrats. The school has only one law professor, hired over twenty years ago, who is a registered Republican. In contrast, the school made news in 1992 when it went out of its way to hire a lesbian couple as faculty members, a move Dean Hines later called one of the most important in the law school’s history.
The “scholarship” produced by professors at the law school reflect this liberal ideology. Some of the articles published include: Litigating for Lesbian and Gay Rights, Lesbian Perspective and Lesbian Experience, Taxing Lesbians and Stories from the Gender Garden, In Support of Euthanasia, and Emancipation as Freedom in Roe v. Wade.
Sadly, what was yesterday’s “legal scholarship” is likely today’s rulings by the Iowa Supreme Court. Noticeably, no faculty member at the Iowa Law School has published anything even remotely resembling a defense of the traditional family or the dignity of human life.
While the Iowa Supreme Court was deliberating its decision in Varnum, the Iowa Law School hosted a symposium entitled “As Iowa Goes, So Goes the Nation: Varnum v. Brien and Its Impact On Marriage Rights for Same-sex Couples.” The event, which was coordinated by the senior symposium editor of the law school’s Journal of Gender, Race and Justice, included over twenty speakers, of which only two argued that Iowa’s Defense of Marriage Act was constitutional.
As Justice Scalia noted in his dissent in Lawrence v. Texas (2003):
Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct….
So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously “mainstream”…
Far from being willing to defy public opinion and the pressures of the times, the justices in Varnum bowed to the overwhelming sentiment of their peers in the legal establishment. Unlike the current justices of the Iowa Supreme Court, a truly courageous justice is one who, in practicing fidelity to the text and history of the Constitution, is willing to refuse to go along with the legal community. Tragically, this trait appears to be missing in too many of Iowa’s judges, including the nine nominees for a seat on the Supreme Court.
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