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Doing What Judges Are Supposed To Do
by Judith E. Schaeffer, Vice President, Constitutional Accountability Center
On Friday, the Iowa Supreme Court, in a unanimous ruling, held that a state statute prohibiting same-sex couples from marrying under civil law violated the equal protection guarantees of the Iowa Constitution. The ink was barely dry on the ruling before right-wing critics predictably began hurling charges of “judicial tyranny” and “judicial activism” at the seven justices on the Iowa High Court. (Strangely, conservatives never seem to lob these charges at judges who strike down laws that protect individuals from discrimination or otherwise rule in ways that make it more difficult for Americans to obtain justice in the courts, but we digress.)
Underlying these charges is a dangerous misunderstanding of the role of the courts in our constitutional democracy. Whether at the state or the federal level, it is the role of the legislature to make the laws, but those laws must be consistent with the requirements of the federal Constitution and, in the case of state laws, with the state Constitution as well. And when a specific law has been challenged on the basis that it violates constitutional provisions, it is the responsibility, in fact the obligation, of judges to determine whether or not that is the case.
This is, of course, the principle of judicial review, affirmed more than 200 years ago by Chief Justice John Marshall in Marbury v. Madison. As Justice Marshall famously wrote, “It is emphatically the province and duty of the Judicial Department [the courts] to say what the law is.” And as Chief Justice Marshall recognized, what would be the point of having written a written constitution, if the legislature could just ignore it in passing laws and the courts could do nothing but sit idly by?
In their opinion on Friday, the Iowa Supreme Court Justices in fact specifically addressed the nature of their obligations as judges to determine whether the challenged state law violated the Iowa Constitution:
The legislature, in carrying out its constitutional role to make public policy decisions, enacted a law that effectively excludes gay and lesbian people from the institution of civil marriage. The executive branch of government, in carrying out its role to execute the law, enforced this statute through a county official who refused to issue marriage licenses to six same-sex couples. These Iowans, believing that the law is inconsistent with certain constitutional mandates, exercised their constitutional right to petition the courts for redress of their grievance. This court, consistent with its role to interpret the law and resolve disputes, now has the responsibility to determine if the law enacted by the legislative branch and enforced by the executive branch violates the Constitution.
(Emphasis added.) In proceeding to make that determination by applying the provisions of their state Constitution to the challenged Iowa marriage law, the Justices of the Iowa Supreme Court were doing what they, as judges, are supposed to do. They were acting in the best tradition of John Marshall, and they should be commended, not excoriated, for doing their jobs. Critics who nonetheless claim “judicial activism” in such decisions are doing a great disservice to our democracy and to Americans’ understanding of the proper role of courts in our society. And some of those critics, undoubtedly, are hurling these charges in an effort to intimidate judges.
On Friday, in Iowa, that tactic thankfully did not work.