Thursday, February 18, 2010

Hate and Fear of Homosexuals in Iowa

In April 2009 the Iowa Supreme Court unanimously ruled that same-sex marriages were permissible in Iowa. Apparently this ruling has caused several Iowa legislators to lash out in their hate and fear (not to mention idiocy, but more on that in a minute).

Iowa has a Safe Schools Law to protect students in Iowa schools from harassment and bullying. At present, Iowa’s law apparently provides that it is illegal to harass or bully another student because of that student’s “age, color, creed, national origin, race, religion, marital status, sex, sexual orientation, gender identity, physical attributes, physical or mental ability or disability, ancestry, political party preference, political belief, socioeconomic status, or familial status”. (Note that I have not read the entire statute, but I do wonder why it might be acceptable to bully or harass another student because of the student’s favorite football team, musical preference, style of dress, or any of the host of other non-protected class reasons for which kids are bullied.) However, Iowa Republican state representatives Jason Schultz and Matt Windschitl apparently thinks that harassing or bullying gay students is a good thing. So, they’ve introduced a bill (HF 2291) that would delete the words “sexual orientation, gender identity” from the statute.In other words, it would apparently be OK to harass or bully a student as long as you did so because the student was gay. And just so that you don’t think I’m being creative in my description of the bill’s effects, here is how the bill’s sponsors describe the purpose of the draft legislation (emphasis added):

This bill strikes sexual orientation and gender identity from the definition of the term "trait or characteristic of the student" used for purposes of protecting students in public and nonpublic schools from harassment and bullying.

What a lovely lesson to be taught in our schools: Go ahead and harass and bully those gay kids!

But in case that wasn’t enough, Rep. Schultz has also introduced another bill (HF 2313), that appears designed to prevent Iowa courts from ever issuing another ruling like that which permitted same-sex marriage:

602.1100 Judicial authority.

1. A judicial officer shall not use judicial precedent, case law, penumbras, or international law as a basis for rulings. A judicial officer shall only use the Constitution of the United States, the Constitution of the State of Iowa, and the Code of Iowa as the basis for any ruling issued by such judicial officer. The only source material that may be used for interpreting the Constitution of the United States by a judicial officer in this state shall be the Federalist papers and other writings of the founding fathers to describe the intent of the founding fathers, and if such source material is used, the full context of the source material must be used by the judicial officer.

2. This section is not reviewable by the court.

3. A violation of this section by a judicial officer shall be considered malfeasance in office and subjects the judicial officer to impeachment under chapter 68.

Unfortunately, it is probably difficult to explain how incredibly stupid this bill really is, but I’ll try.

To begin to illustrate the problem, let me relate a story. Shortly after beginning my career as a lawyer, I was downtown with my girlfriend (now wife) and several other friends. For reasons that I don’t remember, one wanted to see where I worked. So we walked over to the building where our office was and rode the elevator up to take a look. For some reason, this girl was fascinated by the firm’s law library (which was actually rather small…). She asked me why we needed so many books. My first few attempts to explain how the “law” works fell on deaf ears (or, perhaps more precisely, went in one ear, flew through the vacuous emptiness, and exited the other ear). So I tried a different route. I pulled out a volume of the Indiana Code and looked up the statute dealing with murder and showed it to her (the key language was “knowingly or intentionally kills another human being”). Then I asked her whether it was a murder if a police officer shot a criminal who was holding a gun to a victim’s head? What if the criminal wasn’t holding a gun to a victim’s head, but rather, was running away from the police officer? What about a doctor, I asked, who had to make an emergency decision of whether to save the life of a near-term fetus or the mother following an terrible traffic accident? What about two kids playing with their father’s gun when it accidentally goes off? What if one of the kids had been pointing it at the other, thinking it wasn’t loaded? What if the person who pulls the trigger was drunk or under the influence of drugs or medication? What if the person who pulls the trigger was acting in self-defense? What if the person who pulls the trigger thought he was acting in self-defense, but no real danger existed?

Now most lawyers can easily see through and address these examples, but they served their purpose with my friend. I explained to her that statutes could only handle so many issues. The legislature could try to think of events that might occur and decide whether they should be crimes or what the law should say about them, but it is impossible to imagine every single possibility. That, I explained, was what case law (common law) was for. Of course murder probably wasn’t a very good example to use, but for someone with no experience with the law it worked very well.

But I think that this story illustrates the point of the importance of common law as a supplement to statutes and constitutions: There is only so much that the legislature can address in advance. Filling in the gaps and applying the law to particular situations is the job of judges and, under our system, has been for hundreds of years (predating the founding of the United States). People complain about lawsuits, but most of the issues that make it to the Courts of Appeals or Supreme Court deal not with issues that are clearly set forth in statutes (or constitutions), but rather with the trickier issues that aren’t subject to such readily obvious answers. That is one of the main reasons that we have an independent judiciary.

But think what else this proposed Iowa bill would do. First, how well do either the US Constitution or the Iowa Constitution address the advances in modern society or the changes in public attitudes. For example, what does either Constitution say about the right to privacy on Facebook? What does either Constitution say about ownership of a frozen embryo following a divorce? Does either specifically address whether the police need a search warrant to train heat detecting equipment on a house to see if the house might have heat lamps commonly found in marijuana operations or whether the police can track a GPS unit in a cellphone? With this proposed bill, Iowa courts and the law of Iowa could never adapt and grow. The law would always be stuck in 1789 (and whatever year the Iowa Constitution was adopted) plus whatever statutes the legislature adopted. And just think of the inconsistencies that could cause. One Iowa court might say that Iowa’s Constitution allowed something while another court might disagree. Without resort to case law and precedent, there would be no way for anybody, courts or citizens, to anticipate what the law would be. This law might actually lead to more litigation; after all, if there is no case law to look to for guidance, each and every issue not clearly set forth in statute will need to be relitigated over and over and over. If judge’s are bound by precedent (as they are now), then we have a pretty good idea of what the law should say about any given subject, though with the understanding that as society and our world change, the law can change and grow with it.

One other thing about this bill is worth noting: Why the reliance upon the Federalist papers and other documents about the intent of the Founding Fathers? (And who, precisely, are the founding fathers?) Why do we need to look to their intent if the Constitution is supposed to be able to stand up on its own? We don’t look outside of a contract unless there is an ambiguity (of course that rule is from common law…), so is the Iowa legislator suggesting that the Constitution is ambiguous? But if it is ambiguous, isn’t it then appropriate to look to common law? And how, I wonder, do we decide which documents of the Founding Fathers may be used? Is Jefferson’s letter setting forth his opinion that the First Amendment erected a wall of separation between church and state one of those documents? I suspect advocates of prayer in school would disagree; after all, they’ve contended for years that what Jefferson may have said in a private letter has nothing to do with the Constitution.

I could probably go on at length (as if this hasn’t been long enough already…). In the end, these two bills simply provide ample evidence of the fear (and hatred) of some on the right toward gays and toward the possibility that court’s might view gays as being a protected class subject to equal rights, just as African-Americans were in the Civil Rights era. Plus, the second bill demonstrates just how profoundly stupid some legislators really are and how little they understand about how American jurisprudence really works.

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1 Comments:

At Wednesday, February 24, 2010 7:24:00 PM , Anonymous Sheila Suess Kennedy said...

What a wonderful post!

I often struggle to explain similar legal principles to my students; when we talk about 'original intent,' for example, I often begin the conversation by asking what James Madison thought about porn on the internet. Obviously, he DIDN'T think about it--but he DID think about the value of free expression. Etc.

And if Jefferson's letter to the Danbury Baptists was a 'private letter,' why did Jefferson send it first to the then attorney-general (who I think was Madison,btw), to have the AG's sign-off for consistency with the Constitution?

 

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