Friday, April 3, 2009
Brian Sikma
Iowa Decision Supports Case For Indiana Amendment

When traditional marriage supporters advocated for a state marriage amendment in 2008, Speaker Pat Bauer argued that such a constitutional amendment was unnecessary and redundant in light of Indiana’s existing state law.  Proponents of the amendment responded by saying that the same judicial reasoning that allowed courts in Massachusetts and elsewhere to challenge the constitutionality of marriage laws could be used by Indiana courts.  The Iowa Supreme Court’s decision to create a constitutional right to same-sex marriage and impose that new definition on the state proves the Speaker wrong, and marriage supporters right.
Unlike Massachusetts, a state known in recent decades for being highly “progressive” in both fiscal and social policy, Iowa is a mid-west state whose citizens have many of the same values that Hoosiers have.  One may have expected courts in states like California and Massachusetts to have activist judiciaries more than willing to redefine the definition of marriage.  But Iowa is not a state that would have been considered a prime candidate for this sort of judicial misrule.
Indiana legislators and policy makers should take close note of the Iowa decision and realize that what happened there could happen here.  Marriage is a fundamental institution in society and the state must act whenever necessary to protect its status and definition.  Without its presence as a bedrock unit in the makeup of society, our state cannot expect to move forward into a prosperous future.  The strength of our state, the well-being of our children, and the prosperity of our communities depend on our ability to protect marriage from those who would redefine it into something it has never been, and will never be able to successfully be.
Although this session of the General Assembly failed to act on a marriage amendment, with Senate Judiciary Committee Chairman Richard Bray (R) being responsible for his committee’s failure to hear the matter in the Senate, the Iowa ruling will hopefully spur legislative leaders to action next session.

Comments: (7)



Brian, since you concentrate on "judicial misrule" as Ryan certainly does, are you in agreement with his former position that although you don't care for civil unions, if the members of the Indiana legislature wanted to, the Indiana Constitution shouldn't stand in the way? Or do you count yourselves among those who consider civil unions to be an "evil twin" of same sex marriage, so that lawmakers as well as judges should be rendered powerless in this area. I always appreciate your somewhat different take on things, despite our likely not agreeing on most. Thanks much.

Don, I haven't seen the particular piece written by Ryan that you are refering to, so I'm not going to say I agree or disagree with him without seeing his own statement of his position.

While I wouldn't quite use the terminology "evil twin", to describe civil unions, it is my belief that civil unions are only one step removed from same-sex marriages. They award legal benefits equivalent to, or substantially related to, those found in marriage and thus create a legal situation in which name is the only thing seperating the two arrangments. For society, marriage loses is special legal recognition and for those in civil unions they have the legal benefits of marriage without the societal recognition generally accorded married couples.

I think that the recent events in Vermont and New Hampshire lend credence to the concern that civil unions will never suffice as a half-way solution between protecting marriage and redefining it to include practically whatever relationship arrangements become accepted by some people. The choice is to either protect marriage all the way or begin to move down the road of undermining the institution that is necessary for the success of society.

I would also emphasize that I am not against same-sex marriage as much as I am in favor of traditional marriage. Marriage is the single most important legal and personal relationship in society. It must be protected and it cannot be changed without serious and destructive consequences.

I appreciate your laying out that position, Brian, but like Ryan, you really didn't answer the thrust of my question. I know that neither of your care for civil unions, and am almost certain that if you were a member of the Indiana General Assembly, you would speak and vote against them.

But would you want a constitutional amendment to strip away the popularly elected legislature's ability to pass such legislation? If so, why?

Brian, in going back to the first sentence of your reply above I note you said you couldn't comment on what I attributed to Ryan without seeing it.

What I was referring to was a comment/reply, actually by fellow VR contributor Sue Swayze, to a thread entitled "California Legislator Thumbs Nose at Voters", initially published on September 14, 2007. As part of a dialogue concerning what SJR7 would or wouldn't do concerning legislative (as opposed to judicial) power concerning marriage/civil unions, Sue, referring to Ryan McCann, made the following statement on September 17, 2007 (4:42 PM) [It remains in the VR archives]:

"In Indiana, however, Ryan and I have been consistent that SJR 7 wouldn't prevent the legislature from passing things other than marriage, like civil unions, because they are an elected representative body and should have that right."

Consistent, that is, until SJR-15 came along. Anyway, does that help identify what I'm talking about when I say there's been a sea change in position concerning legislative authority. Again, what's your own feeling about whether or not the Indiana General Assembly ought to be able to enact civil unions?

Don, I believe that just as a popularly elected legislature should not have the authority to take away, say, your voting rights, they should not have the authority to redefine the institution of marriage. Our founding fathers appealed to a higher standard of law when the claimed that some rights are unalienable rights and they believed that these rights existed regardless of whether governments chose to recognize them. A similar reasoning applies to the institution of marriage, which, though not a right, is certainly a key part of any society. Its definition has been set by a higher law and this definition has been reinforced by centuries of practical experience and official legal recognition.

The members of the Indiana General Assembly do not now, nor will they ever, be able to appropriately claim that they have the power to institute civil unions that are same-sex marriages with another name.

Hopefully this clarifies my position for you.

As for the differences between SJR 7 and SJR 15, I supported both and felt that SJR 7 was adaquate for its purposes. However, inspite of the soundness of its language some believed that since we had to begin the process all over again we would do well to mirror the tested language of other amendments adopted by other states. Kentucky has an amendment that has almost exactly the same language, and since they adopted it they have had none of the legal confusion that some opponants of SJR 7 predicted would arise because of its particular language.

"The members of the Indiana General Assembly do not now, nor will they ever, be able to appropriately claim that they have the power to institute civil unions that are same-sex marriages with another name."


Where in the world did you ever come up with the basis for that sweeping statement? At minimum, that seems to totally fly in the face of what Ryan and Sue used to claim.

You write: "The Iowa Supreme Court’s decision to create a constitutional right to same-sex marriage and impose that new definition on the state proves the Speaker wrong, and marriage supporters right."

The Iowa Supreme Court did not create a constitutional right to marriage any more than the U.S. Supreme Court did in Loving v. Virgina. As for your assertions (hardly arguments) about the nature of civil marriage, the well being of children, and the effect of marriage equality on existing and future marriages, the Iowa court and Judge Robert B. Hanson of the Polk County Court, refute them in a way that will persuade people who are open to reason.

The Iowa court also addressed the question of how their ruling affects religious freedom: it does not. There is nothing stated nor implied in our founding documents that grants you, or anybody, a special right to impose your particular views on your neighbors, not even if you claim that they are fundamental to your belief in God.

Finally it turns out that Iowa, midwestern though it may be, is just the kind of place that one might suspect of harboring such judges. Iowans, it turns out, are particularly proud of the central role that equality plays in their founding, history, and present culture. Their courts also are immune (see the court's opinion) to the circular reasoning that says "marriage is reserved to opposite-sex couples because it is reserve to opposite-sex couples."