[LMP] Iowa, Gay Marriage and the Rule of Law

  • From: Sean Wilson <whoooo26505@xxxxxxxxx>
  • To: wittrsamr@xxxxxxxxxxxxx, metalaw@xxxxxxxxxxxxx, cv@xxxxxxxxxxxxx
  • Date: Thu, 4 Nov 2010 22:50:33 -0700 (PDT)

(Discussion about whether the Iowa judges who were recalled by voters because 
they ruled that the Iowa constitution allowed for gay marriage had "followed 
law" or "voted their policy preference."  Three installments coming. The first 
argues it is a false question. The second that language bewitches the answer. 
The third is about American government and populism). 

----- Forwarded Message ----
From: Sean Wilson <whoooo26505@xxxxxxxxx>
To: LAWCOURT-L@xxxxxxxxxx
Sent: Thu, November 4, 2010 4:55:41 PM
Subject: Re: Iowa Gay Marriage Decision and the Rule of Law

... love to add my 2 cents.

For those in political science and elsewhere who are predisposed to framing 
the issues this way, we might also ask:

When one engages in casuistry, what does it mean to "implement your own policy 
view" (as opposed to not)? And how does this manifest itself? For example, does 
it depend upon whether all of the premises in the opinion are true?  If a poor 
decision could be re-argued into a better one, does that count? Is it 
upon the judge believing he or she has no choice -- that the hand is forced, so 
to speak? Or is it a neurological theory -- does an MRI of the judge's brain 
give the real answer? Moreover, what if in each case the judge can be said to 
 follow a different vision of law -- is our question at the outset favoring one 
of these visions? 

Might we need good examples of these ideas before we carry them forth into 
application? Might it be a better to ask this question: 

In the minds of the political scientists, which decision has better integrity, 
and why -- and does judicial independence help or hurt this result? In other 
words, which system lends itself to Dworkinian judging?  Finally, what if we 
find that culture is such that these answers are contingent in important ways 
how we behave at certain times in history. What if the answer is something like 
this: the decisions were integrous from the standpoint of what would eventually 
become hegemonic and learned, but not so for a populistic, agrarian framework, 
which favored another sort of social arrangement. 

What do we do then about all this rule-of-law talk? Or about the cheat-the-law 
talk? Might we really need to give up that question and work on trying to make 
anyone who judges anything into a better thinker?  

Regards and thanks.

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Personal Website: http://seanwilson.org
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SSRN papers: http://ssrn.com/author=596860
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----- Original Message ----
From: James L. Gibson <jgibson@xxxxxxxxx>
To: LAWCOURT-L@xxxxxxxxxx
Sent: Thu, November 4, 2010 4:55:20 PM
Subject: Iowa Gay Marriage Decision and the Rule of Law

Dear All,
        Don't want to stir up a hornet's nest, but I sure would welcome replies 
from our experts on two sides of the Iowa gay marriage Supreme Court decision. 

would welcome a defense of the decision as necessitated by the rule of law 
(independence frees judges to follow the rule of law). I would also welcome a 
critique of the decision as a simple policy decision by the Court (independence 
frees judges to implement their own policy views). I don't know enough about 
Iowa law and the Iowa constitution to know whether the judges were in any 
reasonable sense required to follow the rule of law and find in favor of gay 
marriage or whether instead the law was insufficient to require a decision, one 
way or the other, and therefore that the judges had no choice but to vote their 
policy preferences. I would love to see a reasoned rule of law defence and a 
reasoned rule of law critique of the decision.
        It seems to me that how one feels about the Iowa vote depends greatly 

what one believes the judges were doing.

P.S. In my view, it would be nice to see these positions developed without 
regard to whether one favors or opposes gay marriage. Perhaps that's 


Dr. James L. Gibson
Sidney W. Souers Professor of Government
Washington University in St. Louis

13 Hortense Place
Saint Louis, MO   63108

Tel:     314 367 1931    or    314 935 5897
Fax:    314 367 1741
Cell:    314 488 0108 


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