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« Food of good intentions | Main | Ask, Tell? (Joe) »

April 04, 2009


Opinion here. I've only glanced at it, but it appears remarkably temperate in rhetorical tone. Right at the top, for instance:

Despite the commonality shared with other Iowans, the twelve plaintiffs are different from most in one way. They are sexually and romantically attracted to members of their own sex. The twelve plaintiffs comprise six same-sex couples who live in committed relationships. Each maintains a hope of getting married one day, an aspiration shared by many throughout Iowa.

But I have a legal question. In Part III of the opinion, the part dealing with constitutional separation of powers, the court writes, "A statute inconsistent with the Iowa Constitution must be declared void, even though it may be supported by strong and deep-seated traditional beliefs and popular opinion," then cites to the Iowa Constitution. Fair enough. But then the court quotes CJ Marshall from Marbury v. Madison to the effect that "It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it...." Have I mistakenly assumed that when we speak about constitutional law in the USA, we are usually referring to the federal Constitution and its ramifications, and not to constitutions generally? Yes, the federal Constitution is among the legal instruments comprising the supreme law of the land, but how does Marshall's pronouncement of the superiority of the federal constitution to federal and state ("any") legal acts have any bearing on the relationship of Iowa's Constitution to Iowa legislation?

I think you're right to suggest that Marbury is not controlling precedent on a question of state-constitution constitutional law, but it does articulate principles common to probably all state constitutional law systems. Given that it's venerable, why not quote it if you like how it says what it says? (Note also that the entire discussion is probably technically unnecessary -- surely judicial review is established in Iowa to the point where the parties didn't even argue it. But this discussion was apparently aimed at an audience broader than the typical legal audience.)

I get your point, Joe, and I'm sure you're right about Marbury and the opinion's intended audience. But isn't it ironic that the court relies on a venerated, at best indirectly applicable opinion to support its ruling challenging the sway held by "strong and deep-seated traditional beliefs and popular opinion"? I've always found disturbing, by the way, remarks like CJ Marshall's quoted by the Iowa court, if only because there are so few propositions "too plain to be contested." In a charged atmosphere like a court dispute over the extent of constitutional powers, there are far fewer, proportionately speaking, than in, say, ordinary discourse of newspapers, blogs, and coffee shop conversations.

I haven't read the opinion carefully, but my impression is that it's too strong to say that the court "relies" on Marbury. The Iowa Constitution itself expressly provides that a contrary act "shall be void." It seems as if CJ Marshall's statement was just a throw-in (of the "see also" or "accord" variety). Something about it does feel odd, though -- and because it didn't need to be there and adds only rhetorical flourish, I think this comes back to the intended audience and the implicit claim, "We're not judicial activists."

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