Loss of judicial Independence

The shock and disbelief of losing three justices on the guise that they overstepped the bounds of the judiciary was disheartening and scary at the same time. Iowa has set a dangerous precedent for itself, and this new precedent is based upon questionable mob rule rather than the secular rule of law. We find ourselves now at a condition in the judiciary that is bound to public opinion and ability to raise money for campaigns rather than legal fairness to interpret the law.  Given the disposition of those voting against the judges, they intend to have the courts follow a more religious test to the judicial decisions regardless of the law. That is, of course, contrary to constitutional law in U.S. Constitution Article VI and its First Amendment as well as contrary to the intentions of the Founding Fathers.  The preamble of the Iowa Constitution presents an invocation to the Supreme Being, but the Iowa Constitution has these same restrictions in Article I and even goes further to limit that the court of law does not render competence based upon religious tests or opinions. Article I of the Iowa constitution is clear that “all men and women are, by nature, free and equal” which suggests that Iowa has enjoyed an equal rights provision before the federal constitution and that equality is not bound to religious opinions.

Alexander Hamilton stated in the Federalist No.78 that “the complete independence of the courts… is essential… Without this, all… rights or privileges would amount to nothing”. He further asserts that

"...independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors … or the influence of particular conjunctures …have a tendency … to occasion dangerous innovations in the government and serious oppressions of the minor party in the community”. 

These statements argue that judicial independence is required to guard the majority from minorities (e.g. prevent mob rule from undermining the Constitution or freedoms). These assertions by one of the Founding Fathers, in defense of the U. S. Constitution, makes one wonder why Iowa constitution framers left in a retention vote at all given the constant risk of politicizing a judicial branch.

The campaign by Bob Vander Plaats and his comrades was essentially a test for Iowa voter opinion for future marriage amendment proposals as well as a referendum on the Varnum vs. Brien decision clear through the end despite some of his comments after the vote. Every single ad that was released to oppose the justices was about the gay marriage ruling in Iowa, and those ads flooded the airwaves thanks to well-funded coffers.  Every single news story that covered the retention vote referred the retention vote in terms of the marriage ruling. There was no mention of the other decisions handed down or the works that the justices have done for Iowa. Further, vile and destructive characterizations (often outright lies) of whole classes of people were used to defend the opposition to retention. The name-calling and lying was reminiscent of school taunting and name-calling (like some people never grow up and still want to bully others). We do not have to look far to see examples of how destructive this type of behavior from leadership is and how that can lead to genocides and closed societies. Only after the ruling was opposition focused upon the ill-conceived notion of “overstepping the justices’ duties”. We should examine the arguments as they will be seen again.

They argued that the justices legislated from the bench, but any time the courts strike down a provision or law, they are, in effect, “legislating” by removing a provision’s authority or legality (essentially removing a provision from the code). As well, if they recognize a right or removing obvious inequalities that had been codified unconstitutionally is protecting the provisions of constitutional that protect equality for people regardless of class. Thus, every Supreme Court justice in the nation is guilty of such action, but this is usually (as was with the Iowa Supreme Court) based upon a premise that the code is “error at law”. As well, this is a duty of the courts enshrined in the Iowa Constitution Article V and U.S. Constitution Article III. The Iowa Supreme Court in this decision reviewed the equality provisions and the non-religious tests as evidence that DOMA is inherently unequal in its writing, intent and effect before the Iowa constitution as well as the equal protection of the 14^th amendment of the U.S. Constitution. As well, one cannot argue that liberties and rights can be extended to animals because there is no constitutional provision that asserts any rights for animals. That is because only “persons” have equal rights as defined as “all men and women”.  

In this case, the state protections of state-recognized civil marriage could not be denied to same-gender couples. Civil marriage offers many state protections of law that are not conferred to those couples without civil marriage. The Iowa Supreme Court was clear that this did not impose upon churches to recognize civil marriages nor did they challenge church-recognized marriages. Yet, the equal protections of state-recognized civil marriages could not be denied for one couple over that of another couple regardless of the gender of that couple since “all men and women are equal, by nature”, and all laws have to be uniform in terms to all citizens and classes of citizens according to Iowa’s Article 1 section 6.  

As well, the court would not be able to force a religious viewpoint, take away gun rights or property, without due process, as these are constitutionally guaranteed. The legislature cannot compel a person to receive a particular religious blessing for a marriage of which would also engender “respecting an establishment or religion” or impede upon the freedom from being “compelled to attend any place of worship…” 

Yet, the review of constitutionality of code is rooted in the constitutionally written duties of the courts. This is the purpose of designing separate branches with separate abilities and powers. Courts can not manufacture cases in order to make a decision that becomes the law and the legislature has the power to impeach if the courts act in illegal misconduct.  This helps to prevent courts from overstepping and helps them to interpret the law, especially constitutional law, correctly regardless of public opinion or legislative interests. This is essential to what Hamilton suggests because without the ability of courts to render an unconstitutional provision as null, governments and the people can rule at the political whims without regard to the sanctity of liberties, the equal recognition of those liberties, or the constitutions themselves. The constitutions and the courts become worthless endeavors to construct a fair society of liberties. ...

Read the whole work at http://www.wpstudios.net/policyresearch/adocumentreader.jsp?d=1078