Marriage and the Law

This past week saw two major news events in the ongoing  marriage wars. First, the Iowa Supreme Court found a right for same-sex marriage hidden in their Constitution (the relevant provisions of which, they note, are “identical in scope, import, and purpose” to those of the Fourteenth Amendment of the U. S. Constitution). Second, the Vermont legislature voted to overturn their governor's veto on gay marriage, making Vermont the first state to enact a statute legitimizing these marriages. Interestingly, supporters of gay marriage are much more focused on exploiting the first victory rather than the second.

Voters all across the country find themselves increasingly removed from the political and legislative process that is by design theirs, removed by judges who believe they know better when it comes to making ethical judgments in public policy. One thing the decision doesn't contain is any reference to a history of British common law on marriage and family, which one would think would be appropriate in this context, referring only disparagingly to "strong and deep-seated traditional beliefs and popular opinion." 

It does contain an empty gesture to the people of Iowa while removing their sovereignty:  

Finally, it should be recognized that the constitution belongs to the
people, not the government or even the judicial branch of government. . . . While the constitution is the supreme law and cannot be altered by the enactment of an ordinary statute, the power of the constitution flows from the people, and the people of Iowa retain the ultimate power to shape it over time.

But elsewhere, they assert

Our responsibility, however, is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time.

However, the Constitution itself is a legislative enactment. It was ratified by those same Iowans who were too dim and retrograde to view rights as expansively as the current Iowa Supreme Court sees them. So the Constitution establishes rights that were unimagined to its drafters and are not broadly accepted by Iowans today. But of course, the Constitution "belongs" to those Iowans. 

So long as they don't attempt to use its provisions to actually pass legislation.

These are dark days for American self-governance.