The Message From Iowa

BY Advocate Contributors

November 09 2010 3:25 PM ET

NOM’s real target was not just Iowa and the freedom to marry, but rather, the American judiciary. They will wave their bloody shirt around the country in a thuggish effort to intimidate courts and deter judges from fair and independent consideration of cases challenging antigay discrimination. The attack on the Iowa judges was a new low, even for NOM — a despicable and dangerous assault on bedrock American principles. The antigay forces’ desperate tactic displayed their contempt, not just for gay couples, but also for the court, our Constitution, and the American system of checks and balances.

In one way, this is nothing new. Undermining courts and impartial judges has been a favorite tool in the right-wing attack machine’s toolbox for decades. At various civil rights moments in American history, the courts' vital role in enforcing equal protection has come under tremendous pressure, as have judges themselves. Recall, for instance, the "Impeach Earl Warren" billboards following Brown v. Board of Education and the concerted wave of political attacks against that hallmark ruling; the vitriol against the California supreme court when it had to strike down a 1964 constitutional change that undermined protections against race discrimination; and the Rovian campaign of intimidation waged against so-called activist judges during the last administration. Remember the attacks on Judge Vaughn Walker when he struck down Proposition 8 a few months ago.

What is new, however, is the recklessness of the right wing’s desperation. Without the courts, our country would not have made the changes we needed to end legal race discrimination, to advance the equality of women, to ensure freedom of speech, or to protect religious minorities against stigma and oppression. While courts do sometimes get it wrong, they have a vital and legitimate role to play in our American constitutional system.



With the law clearly not on their side, without any facts to rely upon, and with a majority of Americans on the side of fairness, antigay forces are desperate and willing to lay waste to our courts and our most cherished American principles in order to get their way and punish same-sex couples. As the losses continue to pile up for these extremists, their attacks become more vicious and they resort to shoveling torrents of money into one-sided elections, as they have done in Iowa.

Over the years advocates of the freedom to marry have turned to the courts to end exclusion from marriage, asking judges to consider what reason the government has for withholding civil marriage licenses. We have won some cases and lost many others. Unlike right-wing opponents of equality, who denounce and seek to punish courts for doing their job, I criticize only when they flinch or fail to do it. But we have never resorted to the malicious tactics demonstrated by antigay forces.

Disagreeing with a specific decision on its merits is one thing. But when you hear politicians or antigay groups like NOM attacking jurists for doing their jobs, consider whether people in other countries without an independent judiciary committed to upholding constitutional guarantees are really more free, equal, or safe. There is a reason why everything does not get put up to a vote. There are certain basic rights and protections that belong to each individual and cannot be taken away — not even by the majority. As Americans, we count on our Constitution and courts to safeguard the inalienable rights guaranteed to all of us. It’s not as if politicians never get things wrong; we want independent judges there to police the boundaries and uphold the Constitution. In the words of former Supreme Court justice Sandra Day O’Connor, “Obstructing the other branches when they break the rules is precisely what the judiciary is constitutionally obligated to do.”



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