Thursday, November 1, 2012

Bigots hiding their bigotry make the worst arguments

   First, a brief history...

   In April of 2009, the Iowa Supreme Court ruled on a case on the topic of gay marriage (Varnum v. Brien). This is the ruling that effectively (more on this in a bit) made gay marriage legal here in Iowa.

   The next point of interest involves the fact that Iowa votes to retain justices on our state Supreme Court (as well as other courts). In 2010, three of the justices that ruled on that case were up for this retention vote. All three were voted out. Big time. And the reason many people had for voting them out was over the ruling in that gay marriage case. (I myself voted out two of them...more because I thought they had served on the court long enough as I am a believer in term limits. I now regret that decision.)

   The reason basically amounts to their religious beliefs that gay marriage = evil. But of course, they can't exactly be honest about their reasons so they instead try to give non-religious arguments instead. As these non-religious arguments aren't their real arguments, they end up being quite flawed, as we are about to see.

   Now, to the present, there seems to be one judge up for retention that was involved in that ruling (I assume this because he is the only one I have seen attack ads against). This would be David Wiggins. And now I'd like to go over the non-religious arguments that are on the main attack website, since an ad for it showed up in one of the blogs I read.

Judge David Wiggins should be held accountable and removed from the Iowa Supreme Court for going outside his constitutional limits in the April 3, 2009 Varnum v. Brien opinion.

1) Wiggins made and executed law from the bench. Judges can’t do that.

Article 12.Section 1 of the Iowa Constitutions says, “The general assembly shall pass ALL laws…”
   Oh, he did?!? Would you mind linking to that law at least? I'd like to see the wording of that law and to know where it is in the books, please.

   The reality is that he made no such law. According to the summary (PDF), which can be found on the Iowa Judicial Branch's website (emphasis mine):
In a unanimous decision, the Iowa Supreme Court today held that the Iowa statute limiting civil marriage to a union between a man and a woman violates the equal protection clause of the Iowa Constitution.
The decision strikes the language from Iowa Code section 595.2 limiting civil marriage to a man and a woman. It further directs that the remaining statutory language be interpreted and applied in a manner allowing gay and lesbian people full access to the institution of civil marriage.
   The ruling didn't "make" law; it removed law. The courts are allowed to do this. Remember how the Supreme Court of the United States (SCOTUS) could have struck down the Affordable Care Act (a.k.a. Obamacare)? Or at least the individual mandate part? That would essentially be the same type of ruling — one that removes a law from the books. Perfectly acceptable. Actually, that is part of the court's job in our system of checks and balances.

   In short, this first point is a straight-up lie. Unfortunately, it has been my observation that many people have bought into the lie. Part of the reason I suspect people have bought into this may because of the consequences of the ruling and how those consequences have been portrayed by the right. As you can see from the part of the summary that I posted, the law that was struck down was one that limited civil marriage to a man and a woman. What should be an obvious consequence of removing that limit is that civil marriage then becomes open to gay couples and that the State then needs to accept such couples who seek a civil marriage. The right, however, has portrayed this logical conclusion as...well, not logical, as can be seen from this article from the Des Moines Register (emphasis mine):
What the justices did, opponents insist, is overstep constitutional limits by both* overturning the ban on same-sex marriages and requiring that Iowa authorities begin to recognize unions between same-sex couples.
Oh noes!!! They required that Iowa authorities do their jobs?!?! How dare they!?! (sarcasm...if you couldn't tell) Seriously, what sense does it make to strike down a law that limits marriage but then allow authorities to act as though the law were still in place? If you can make sense out of it, please explain. Because I can't. (Well, the closest I can get is to a slippery-slope argument that this could allow people to marry their cats and/or dogs. But this is not reasonable because this lacks an important element in a marriage: consent! Not to mention how would a dog or cat sign a legal contract? The other argument is that it could lead to polygamy. Would it surprise you to know that I am not against polygamy? I also think polygamy may be the next social justice issue in regards to marriage equality. So you would then need to explain why I should be against polygamy.)

* Note that in the next paragraph of the article, the opponents, which are the people heading up this website I am critiquing, admit that the "justices acted in a legally acceptable manner in striking down the same-sex marriage ban." So it's just the part about requiring authorities to act on this that bothers them...according to that article. Interestingly (sarcasm), that's not what they are saying in this first point on their very own website!

2) Wiggins is the worst rated Supreme Court Judge in 50-year retention history.

He received only a 63% retention recommendation from his own peers.
   This may be true. I don't know, as they failed to provide a source. I'm not sure how much I care knowing they blatantly lied in their first point as well as knowing what their overall issue with Wiggins is. After all, if he is supposedly so horrible, they should be able to site cases other than the gay marriage case where he has misconducted himself. But I see no such sitings.

   By the way, I cannot help but notice that 63% is greater than 50%, which I think is the amount of "Yes" votes he needs to be retained. So, even though this may be the "worst rating" in these 50 years, it is a rating that still favors retention. Math FAIL! (OK, to be honest... I suspect we are to presume that his peers will be biased in his favor and, after compensating for this bias, the 63% is not supposed to be enough for us to support retention. And/or maybe since the judges who were voted out from two years ago must have had a higher rating, anyone who has a worse rating than them should be voted out as well. That would assume, though, that the votes against retention from two years ago was the correct course of action. I disagree with that assumption.)

3) Wiggins broke the Iowa Judicial Code of Conduct

He violated Iowa Code when he did his own research. Iowa Code Chapter 51:2.9 says “A judge shall not investigate facts in a matter independently” but on pg. 54 of the Varnum opinion, they noted the evidence was “confirmed by our own independent research.”
The part of the judges doing their own independent research appears to be true (PDF):
Plaintiffs presented an abundance of evidence and research, confirmed by our independent research, supporting the proposition that the interests of children are served equally by same-sex parents and opposite-sex parents. On the other hand, we acknowledge the existence of reasoned opinions that dual-gender parenting is the optimal environment for children. These opinions, while thoughtful and sincere, were largely unsupported by reliable scientific studies.
The part of the Iowa Code, however, seems to only be mostly true. The first issue to note is that this rule is only for ex parte communications. This is the first I've heard of this term, but it appears to be in regards to (from the Iowa Code) "communications made to the judge outside the presence of the parties or their lawyers." The question I have is it acceptable for judges to research independently as long as the parties involved are informed that this research is being done and are informed of the research results and given a chance to respond to those results? I also note that this rule (as well as all others) is effective as of May 2010. Is this a new rule that has been added since the 2009 case? Perhaps it has been there, but I just want to make it clear that I cannot be 100% sure of this.

   I must add that even if this has been the rule and that the judges did indeed violate this rule, I cannot help but find it to be a slightly stupid* rule. This is not to say I accept or support people who break the rules, stupid as they may be. But rather to say that if one of your main arguments for how horrible some judge is that they broke a stupid rule, I am not going to find such an argument very impactful.

   To phrase this another way, the punishment should fit the crime. We treat people who are serial offenders of traffic laws different than, say, serial offenders of murder laws. The former may face hefty fines or may even lose their drivers license while the later would most likely never see daylight outside of a prison again. In regards to Wiggins, I'm not saying that, assuming he did actually break the law, that it is OK for him to break the law. I'm saying that breaking this particular law isn't severe enough to deserve being voted out.

* This is, too, a beef I have with how "justice" works overall in this country...I think that, in order to properly serve justice, the truth matters. However, we have a system where the "truth" can sometimes be with whoever can argue their point better. (Which is in part because (sadly) the human mind tends to work in this way, too.) I hate when injustice is served because of an incompetent lawyer. I would also hate injustice to be served because stupid rules blockade judges from getting at the truth.

4) It’s “We the People”, not we the courts.

Article 1.Section2 of the Iowa Constitution says, “ALL political power is inherent in the people.”
   But what, exactly, does that mean? Well, if we read the rest of the section, it would seem to mean that government exists to serve the people and people can change their government if they don't like it. HOWEVER... perhaps they would like to share what Article 1, Section 1 has to say?
All men and women are, by nature, free and equal, and have certain inalienable rights--among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness.
While I find it stupid to call any right "inalienable" (because people obviously have been denied such rights (slavery, anyone?), falsifying the claim), I am on-board with the idea behind it that there are certain rights the government isn't to be messing with. That then includes any "political power" that "we the people" may have. These are things that are not supposed to be up to a popular vote. That would, by the way, include not just this section of the constitution, but ALL sections of the constitution. Which, by the way, is what the decision was of these judges — the law violated things in the constitution, particularly the "equal protection clause" (whatever section that's supposed to be) that are not to be in the reach of that "political power."

If activist judges can redefine marriage, then all our freedoms and rights are at stake.
   What can I say? Prove it? It's been three years now, what freedom and/or right has been at stake as a result of this ruling? All I see here is an empty threat. Unfortunately, others won't see it this way. That's why people make empty threats — they do work on some people as they tap into our emotion of fear, overriding our ability to think rationally. Oh, I also see the dog-whistle term "activist" that the right likes to use nearly whenever a court decision goes against them. Again, that is used to spark an emotional reaction to shut-off rational thought. Also again, the main emotion is fear — fear of those outside the "tribe"...fear of those outside the tribe that supposedly have ulterior motives that will harm the tribe. (See also: the "gay agenda.") Recognize these threats and words for what they are.

   And they have a video, which I did see on TV once so far...

   It pretty much brings up all the same points above, except for the one comment that I really "loved":
The elites are saying Iowans don't get it. We do get it!
No, lady. No you don't. But perhaps I'm an "elite" with my fancy college degree and all?

   On a quick side note, given how badly the last round of retention votes went, I am somewhat expecting Wiggins to be voted out...though, I think those in favor of gay marriage and, likewise, retention may have gotten a rude wake-up call in 2010 (see my regret above). The question then is if the other three will also be voted out because people will be..."in a mood," I just get rid of everyone? Or it may be that many won't know that it is just one judge that was involved in that decision? Or if they do know, they won't know which one? This will be interesting to watch. The indicator to watch for will be how the percentages on the votes differ between Wiggins and the other judges.

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