COMMENTARY: GOP-favored strict construction favors gay marriage

Dave Saldana/Iowa Voices

District Court Judge Robert Hanson’s ruling last Thursday, overturning the state’s same-sex marriage ban as unconstitutional, added fuel to a presidential campaign that has lacked excitement lately.

Of course, Republican candidates, eager to demonstrate their conservative bona fides, quickly flamed Judge Hanson.

Mitt Romney, former governor of Massachusetts, where same-sex marriage is legal, called Judge Hanson a judicial activist, “trying to redefine marriage and disregard the will of the people.”

Arizona Sen. John McCain, with his presidential hopes floundering, also chimed in. He said the decision “only reinforces my belief that we must have a president who is committed to appointing strict constructionists to the bench.”

If a future President McCain, or any other future president, were to look for a strict constructionist to appoint to the bench, I have a good candidate for them: Polk County District Court Judge Robert Hanson.

Strict constructionists believe the Constitution means exactly what it says. The words of the document, they argue, are the only ones needed to determine its meaning and import, and any judge who goes beyond that dishonors his or her robes.

Judge Hanson has done no such thing.

Rather, he applied the U.S. and Iowa constitutions to same sex couples precisely as worded.

The Iowa Constitution states, “The general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.”

That echoes the substance of the 14th Amendment to the U.S. Constitution, which holds that no state may deny to any person within its jurisdiction the equal protection of the laws.

And that’s that.

Note that neither document says equal protection of the law only applies to popular parties, or to those whose lifestyle is approved of by the majority. It applies to everyone, equally. Anything else is legislated discrimination.

Heterosexual couples may marry under Iowa law. Therefore, pursuant to the governing documents of the state and the nation, so may homosexual couples.

Judge Hanson’s ruling is bullet-proof, if the Iowa Supreme Court is to adhere to the words of the constitutions. That is, if they are strict constructionists.

How they rule likely won’t be seen for another two years or so. In the meantime, we’ll see plenty of political angling, wrangling and gamesmanship. Remember, Massachusetts allowing gay marriage proved a powerful motivator for religious conservative voters in 2004.

Already, the blogs are ablaze with point and counterpoint, with reasoned argument, heartfelt conviction and irrational vitriol. The debate is highly instructive.

Much of the argument against Judge Hanson’s ruling is religious opposition. Many faiths forbid their clergy from performing same-sex marriages, including Methodists, of which Judge Hanson is reportedly a proud and active member.

Most online discussions include the oft-quoted line from Leviticus condemning gay men, that lying down with man as with woman is an “abomination.” No word on whether lesbians also are abominable.

But that’s a religious argument, not a legal one, and has no business in a court’s deliberations. In fact, the First Amendment prohibits the preferential consideration of any religious tenets in the application of the law.

Some opponents say this is an example of the country turning its back on its Christian traditions. But that is a false assertion. The United States is not a Christian nation, and never was intended to be one.

For proof, look no further than the Treaty of Tripoli, which became the law of the land in 1797, eight years after the Constitution became effective. President John Adams, with the unanimous support of the Senate, signed the treaty, which stated in part “the Government of the United States of America is not, in any sense, founded on the Christian religion.”

If you want to see the original intent of the Founders, you could hardly get a clearer picture.

I certainly don’t intend or attempt to convince religious people that their beliefs are wrong. That would be arrogant, offensive and in any case, pointless.

I do, however, intend to point out that their religion ought to have no impact on the law, just as the law ought to have no impact on their religion. That’s what the First Amendment says, in plain language. And it’s what Americans, religious and secular alike, hold dear about our system of government.

And that is what, through strict construction, Judge Hanson upheld.

– Dave Saldana is an adjunct assistant professor of journalism and communication. He is a regular contributor to Iowa Public Radio’s “Iowa Voices,” where this column originally appeared.