Des Moines Register Article, appearing August 7, 2010

The marriage debate is not going away any time soon. In light of Wednesday’s ruling striking down California’s marriage amendment, the debate will likely intensify. The California decision has implications for Iowa, including efforts to put the issue of the definition of marriage to a vote. My wife and I divide our time between California and Iowa, and have experienced the ups and downs of voting on the definition of marriage, only to have our vote negated by judges, or, in the most recent case, one judge. Here in Iowa there is a slightly different dilemma, but the ultimate question for Iowa, California and the rest of the country is the same: Who decides the definition of marriage—the people, or judges?
Before discussing the effect the California ruling on Iowa, a little background.  In the year 2000 California, which has “direct democracy,” bypassed its legislature and passed a law defining marriage as between one man and one woman. This was two years after Iowa’s legislature passed a similar law. In May 2008 the statute was overturned by the California Supreme Court In a 4-3 vote. In order to put the issue above the reach of the State Supreme Court, the voters of California put on the November 2008 ballot a proposed amendment to California’s Constitution defining marriage as between one man and woman. That initiative, Proposition 8, was passed by voters. It was challenged in state court, but was upheld 6-1 (ironically, the lone dissent cited the Iowa case of Varnum v. Brien, the 2009 Iowa case that struck down Iowa’s marriage law).
The opponents of Proposition 8 then challenged it in federal court, claiming under the U.S. Constitution same-sex marriage was a fundamental right, which would trump California’s Constitution. The case was assigned to Judge Vaughn Walker, a 66-year-old single man living in San Francisco, who the San Francisco Chronicle reported was gay. After a 13-day trial in the spring, Judge Walker handed down his 138 page opinion on Wednesday, striking down Proposition 8, finding a fundamental right under the U.S. Constitution to gay marriage. One man’s opinion trumped the votes of seven million who voted for Proposition 8.
The California decision will be appealed, and will likely be the one that makes it to the U.S. Supreme Court, and a ruling there will ultimately determine whether there is a constitutional right to same-sex marriage. Affirming California’s right to define marriage would also affirm the rights of the 29 other states that have thus far amended their constitutions to define marriage traditionally. What about Iowa? In Iowa there is no “direct democracy,” so Iowans must rely on the legislature to get the ball rolling by passing a resolution, twice, before the people can vote on a constitutional amendment defining marriage. The majority in Iowa’s legislature continue to hold the voters hostage by refusing to pass the required resolution before Iowans can vote. In California a federal judge negated the will of the people on the marriage issue. In Iowa, the legislature has disenfranchised the people. Iowans who believe in democracy should continue to press their legislators to allow the people to vote on the definition of marriage, or vote new people into office who truly represent the will of the people.
While the marriage debate continues, we can and should all live together peacefully as Americans and Iowans, regardless of our views on marriage. But the courts have forced a massive disruption of our social order by elevating behavior that the most Americans consider immoral to the level of procreative marriage. If the moral basis for laws is eliminated, which is an implication from Wednesday’s California ruling, all legitimate arguments against polygamy, incest and prostitution are removed. President Obama’s appointee to the U.S. Human Rights Commission,  Chai Feldblum, argues that our government has a duty to promote gay sex as “morally good.” If Iowans want the law to reflect that homosexually is morally good, and have their children taught this in public schools, then do nothing. If Iowans want a say in how marriage and should be defined, then demand that state representatives give Iowans the right to vote.