[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 22:56:04 -0700 (PDT)

(reply to a Dworkinian analysis of the Iowa decision, below)

... but none of these things really answers the question -- because the 
is false (and cannot, therefore, be answered). All that you have really said is 
that those who offer the best examples of liberal, Rawlsian efforts (in a legal 
culture that teaches these judges to value the same) is, by definition, not 
engaging in an act of "policymaking." This, I think, is Dworkin's only real 
mistake. Ask yourself:

1. would the same sort of judges in the same state have said "no" 10 years ago 
-- and what does this say about "policymaking?"

2. isn't it fair to assume that the judges who said "yes" this time have 
to adopt different frameworks about the nature of being gay (and perhaps sex in 
general) that have come from social learning as culture has changed?  Doesn't 
this say something about policymaking?  

The problem here is Wittgensteinain: we are bewitched by the language game. One 
can imagine easily saying of this decision that: (a) it is an example of SUPERB 
judicial policymaking; and (b) it is an example of poor policymaking 
(Machiavellian, pragmatic). In fact, one can imagine different legal 
products being constructed on this very subject -- one having a futuristic 
orientation and the other looking backward. With respect to these legal 
constructs, the presumed worth of each would always be contingent solely upon 
cultural arrangements, not whether they are Due Process or Equal Protection 
arguments. They would only support a social arrangement. And hence, the issue 
seems to be WHEN one would legislate or decree the point of transition, not 
one decision is "law" while the other is not. 

My point is very simple. One gets absolutely no where in this debate by asking 
who "cheated law." There is absolutely nothing but mischief in the question of 
whether a judge did or did not "make policy." The only question that is ever 
relevant is whether the casuistry is good or bad, according to those who are in 
charge of this sort of aesthetic. In fact, your email provides a much better 
account of THAT question, not the false one you think you are answering.

Every decision follows an account of law, as every makes a new policy. We need 
to encourage political scientists to get over this sort of thing. 

Regards and thanks.

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Personal Website: http://seanwilson.org
  (Subscribe:  http://ludwig.squarespace.com/sworg-subscribe/ )
SSRN papers: http://ssrn.com/author=596860
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----- Original Message ----
From: Steve Sanders <stevesan@xxxxxxxxx>
To: LAWCOURT-L@xxxxxxxxxx
Sent: Thu, November 4, 2010 8:24:56 PM
Subject: Re: Iowa Gay Marriage Decision and the Rule of Law

At least two considerations, I think, weight against a suggestion that
Varnum was judicial policymaking rather than law.  The first is
circumstantial: Varnum was a unanimous decision by a Court that included
both Republicans and Democrats, in a politically moderate state.  The second
is more substantive: the decision's basis was equal protection, rather than
substantive due process, which meant the court couldn't just get by with
vague appeals to things like liberty and privacy.  

The opinion situates the marriage case within Iowa's history and
constitutitional traditions, noting that Iowa and its courts have had a long
history of firsts on questions of legal equality, including striking blows
against racial segregation many decades before Brown v. Bd.: "In each of
those instances, our state approached a fork in the road toward fulfillment
of our constitution's ideals and reaffirmed the 'absolute equality of all'
persons before the law as 'the very foundation principle of our
government.'"  I authored an amicus brief for a group of Iowa law and
history professors that documented much of this history and how the Iowa
supreme court has not shrunk from striking down legislative enactments when
it found them incompatible with the state constitution.  See
http://www-personal.umich.edu/~stevesan/varnumprofsamicus.pdf.  In this
sense, the opinion was much more faithful to Iowa's history and
constitutional traditions than Tuesday's vote, which was a fit of pique
funded by (as I understand) mostly out-of-state special interests. 

The opinion reasons and explains, as a good judicial opinion ought to do,
and it also dispels bad reasoning and mere political slogans.  Finding that
intermediate scrutiny is appropriate, the court discusses at length, but
ultimately rejects, the proferred reasons for the ban on gay marriage:
"maintaining traditional marriage"; "promotion of optimal environment to
raise children"; "promotion of procreation"; "promoting stability in
opposite-sex relationships"; and "conservation of resources." 

The opinion is 69 pages, written in a graceful, accessible style.  In the
end, one needs to read it and judge for oneself whether the court was being
intellectually honest and faithful to the rule of law.  See

Mike Dorf notes today
that "Tuesday's vote to fire the three Justices actually provides additional
support for the result in Varnum.  It demonstrates that gays and lesbians
continue to face discrimination and underscores the relative lack of
political power of gays and lesbians--both factors that led the court to
apply heightened scrutiny in Varnum in the central portion of the opinion."

Steve Sanders


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