Same-sex marriage debate could weaken Supreme Court, chief justice says

The public debate sparked by the Iowa Supreme Court striking down a ban on same-sex marriage should have been expected, but has the potential to weaken the court, Chief Justice Mark Cady warned in the annual Condition of the Judiciary address today.

“In many ways,” Cady said in a much anticipated speech to a joint session of the House and Senate, “the public discourse following any court decision on such a major constitutional question of civil rights is what was expected, if not demanded, by our constitution. This discourse is not new for Iowa, although I doubt it has ever been so strong.”

That “discourse” led to the ouster of three justices by voters in the November election and is prompting calls for the impeachment of Cady and three other justices. Some lawmakers have threatened that if Cady and his colleague didn't voluntarily resign today, impeachment proceedings would be initiated.

In light of those developments, the Condition of the Judiciary address attracted more attention than previous years when it was used by chief justices to make the case for more funding, more judges and reorganization of the court system.

Cady touched on those issues, but given developments since the 2009 Varnum v. Brien decision – which Cady authored, he was compelled “to defend our grand system of justice from misunderstandings that threaten to weaken its very fabric and strength.”

“I hope my remarks this morning will lead to a more accurate and complete understanding of the court's proper constitutional role,” Cady added.

Cady then squarely responded to opponents of the same-sex marriage decision who argue it was contrary to the position of most Iowans.

Courts are legal, not political institutions, he said, and unlike politicians, judges do not make decisions “according to public opinion or consistent with ‘the will of the majority.'”

The will of the people will be expressed in law “as constrained by the written principles in the Constitution,” Cady said. If it were any other way, “why have a constitution?”

Likewise, he defended the Supreme Court's review of the statute that banned same-sex marriage.

“Historical evidence and legal precedent support the authority of the courts to invalidate statutes that violate the constitution,” he said.

He also refuted the suggestion by critics that the court should have suspended its decision to give the Legislature time to act on a constitutional statute. As far back as 1883, the Iowa Supreme Court made clear that “even unpopular rulings could not simply be suspended in time to await any future legislative action,” Cady said.

If courts could be coerced by popular majorities to disregard the constitution, “constitutions would become mere ropes of sand and there would be an end of … of constitutional freedom,” Cady said, quoting from an earlier court decision.

That said, Cady conceded he doesn't know how the debate will end, “but I do know that our Constitution will continue to show us the way,” he said.

Cady called for using the current debate to lead Iowans to a new understanding of the courts.

“Let us go forward with the courage found in our past and the courage of the convictions of our Constitution,” he said.