I am about to die of hypoperfusion. After California voters very convincingly supported Proposition 8, banning gay marriage after the California Supreme Court had legalized it, I thought there was no way on God’s green Earth that gay marriage would receive a favorable vote any time soon.

I was wrong.

The Iowa Supreme Court today cast a unanimous vote to legalize gay marriage, making it the first Heartland state to take such a bold step. Naturally, the opponents are coming out swinging, promising to put the issue on the ballot and make it illegal again as California did. Accusations of judicial activism have already started as well. But I have a question: can anybody tell me exactly how we are to define judicial activism?

I climbed all over Barney Frank for his scathing rant against SCOTUS Justice Antonin Scalia, but I have to admit–in his dissenting opinion on the case that struck down sodomy laws nationwide, Scalia’s decision was based less on law and more on personal ideals. THAT is judicial activism, folks. When a judge is making decisions that have little basis in the law and more footing in personal or religious ideology, then you can accuse them of “judicial activism.” The fact that a judge is passing down a verdict that you disagree with does not automatically make them wrong. Both in Lawrence v. Texas and in the Iowa Supreme Court decision announced today, the law was soundly upheld–and was easily argued.

And, like it or not, California’s Supreme Court does have the power to strike down Proposition 8, although they will be scrutinized heavily if they choose to do so. The people do have the right to make law by popular vote. But if the law created by said vote is deemed Unconstitutional, what are those left behind by the law to do? That is why our system of checks and balances exists. No single group–not the people, the judiciary, the legislature or the President–is to have more power than all the others.

Ladies and gentlemen, I’ll have you know that I do not dance. I just broke that rule. If Iowa can legalize it, so can Texas and Arizona. It may not happen next year, but it can happen.



  1. What is Judicial Activism? Good question. Here goes.

    In my opinion the Courts change our laws by affirming or striking them down less by what is allowed under a Constitution and more by when a society is ready for that change.

    Judicial activism in my opinion occurs when the courts force a change that society is not ready for.

    In the landmark case of Brown vs. Board of Education it is my opinion school segregation would have continued if the court had strong reason to fear ending such a thing would result in race riots and the wholesale slaughter of black people. In the Brown case, America was ready enough to end school desegragation.

    Regarding same sex marriage, New Hampshire went for Civil Unions, Massachusetts and Connecticut went for full blown marriage. New Jersey opted for civil unions too. You don’t see legions of gay folk laying dead in the street and gay bars and businesses in flames at the hand of the angry masses.

    But, what if this issue came up 20, 30 or 40 years ago? Would we have prevailed then? Something tells me no.

  2. No it did not legalize gay marriage. It only overturned the ban. Now the law is simply up in the air

  3. Actually, it did. According to Iowa lawmakers, the state attorney general has 21 days to challenge the court’s ruling. If he doesn’t–and he has said he has no intention of doing so–then gay and lesbian couples will be able to seek marriage licenses.

  4. “Actually, it did. According to Iowa lawmakers, the state attorney general has 21 days to challenge the court’s ruling. If he doesn’t–and he has said he has no intention of doing so–then gay and lesbian couples will be able to seek marriage licenses.”

    I hope Iowans who are gay and lesbian embrace same sex marriage more than same sex couples in CA have.

    With a paltry 18,000 same sex marriages in the Golden State among 36 million people, it is clear to me same sex marriage in CA is a bust.

    While even the smallest minorities are worthy of equal treatment under the law, the meat grinder California has gone through makes me question what is really going on.

  5. “Hooray for Vermont! They legalized it today too.
    That’s four down, 46 to go…”

    Double Hooray. The Vermont legislature legalized this not the court system. This is a first.

    The strategy is to focus on states where the people cannot amend their constitution by voting. Iowa, Massachusetts, Connecticut, New Jersey, and Vermont don’t allow for the initiative process we have in CA.

  6. At that, the legislature voted overwhelmingly to overturn the governor’s veto. The legislature had passed a bill legalizing gay marriage last year, and the governor immediately vetoed it. They were voting yesterday to trump that veto.

    That means that if the detractors want to change it, they have to take action in the Vermont Supreme Court. That court is extremely unlikely to try to undo the legislature.

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