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October 5th, 2012

Judicial Rants

By Nathan Tucker

In its 2009 Varnum decision, a unanimous Iowa Supreme Court discovered a right to gay marriage in the state’s constitution.  Disgusted, two years ago Iowa voters took the unprecedented step of removing the three justices who stood for retention that year.  This year, as Justice Wiggins, a fourth member of the Varnum Court, stands for retention before the people of Iowa, a former Republican Speaker of the House argues that voters should keep Wiggins in office.

Former Speaker Christopher Rants wrote Sunday in his regular monthly column for the Sioux City Journal that he doesn’t “blame Justice Wiggins” because “the court did what we expected.”  He gives the impression that Chuck Hurley, president of the Iowa Family Policy Center (IFPC), persuaded him that Iowa’s defense of marriage act (DOMA) was unconstitutionally discriminatory and would be struck down by any rational court unless enshrined in the state’s constitution.

Instead of blaming the Court, Rants insists that “the blame lies with us,” the voters, for failing to put traditional marriage “in the Constitution despite ample opportunity” to do so.  He argues that “there have been three elections since [the legislature’s] first attempt and Iowans apparently have chosen not to elect a Legislature to do that.”

First, Rants is wrong to insinuate that Hurley and IFPC urged a constitutional DOMA amendment because they knew there was no conceivable way the law could pass constitutional muster.  Rather, they knew that it was only a matter of time before some judge somewhere read his own personal biases into the Constitution and struck down the law.  After all, Iowa District Court Judge Neary had, just a short time prior, divorced an out-of-state gay couple not recognized as married by Iowa law.

Secondly, Rants erroneously lays the blame for the Varnum decision on the people of Iowa.  By such logic, one must also assume that we are similarly responsible for Roe v. Wade because we have yet to pass a pro-life amendment, and we’re to blame for Dred Scott for belatedly passing the 13th Amendment.

Furthermore, in blaming the voters, Rants overlooks the simple fact that they had in fact spoken—electing a state legislature and governor who statutorily enacted DOMA in 1998.  Inexplicably, now that the law has been held to be an unconstitutional violation of equal protection, he blames Iowans for not placing such “discrimination” in the state constitution.

Third, Rants wrongly claims that “most of the judges were appointees from Governor Branstad’s first four years.”  As others have already noted, only two of the seven Varnum justices were appointed by the Republican governor.  But more fundamentally, Rants simply confuses political affiliation with judicial philosophy.  This isn’t a matter of whether the governor, the nominating commission members, or the justices themselves had “Rs” or “Ds” after their names, but whether they believe in a living, evolving constitution.

Finally, Rants makes the profoundly ignorant statement that the Varnum justices did not “hijack the Constitution” or hatch “some nefarious plot of judicial activism.”  He obviously never read one of the most flagrantly activist opinions ever penned.  The Varnum Court, for instance, held that “citizens’ rights are [not] constrained to those previously recognized.”

Instead, it is the task of the judiciary, the Court argued, to discover “rights [that] have not yet been broadly accepted, were at one time unimagined, or [that] challenged a deeply ingrained practice of law viewed to be impervious to the passage of time.”

Elaborating on this self-assigned role as social shepherds, the justices gave themselves the power to define the Constitution “by the standards of each generation.”  The Court held that it is their job to divine “a new understanding of equal protection,” “free from the influences that tend to make society’s understanding…resistant to change.”

Chief Justice Cady, the author of Varnum, gave a recent speech in which he described the Court as a continuous (unelected) constitutional convention unto themselves, redefining a “living constitution” as they “sort through the growing understanding to give greater meaning to equality over time…”  They are a judicial cabal whose job it is to “sort through each controversy to draw out the true will of the people” that Iowa’s founding generation, and even contemporary society, may be blind to.

If this isn’t “hijacking the Constitution [and] usurping the roles of chief executive and legislature,” nothing is.  This isn’t judging, but activism; this isn’t interpreting the Constitution, but dictating from the bench.  This is judicial tyranny that begs the question, “Why, then, have a constitution?”

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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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