Will Justices Quit Safeguarding Our Rights? Absolutely Not

Today's print column

News flash: Iowa Supreme Court Chief Justice Mark Cady will not be resigning.

“Absolutely not,” Cady said to persistent calls for his resignation after three justices were booted from the bench in November. “We have too much at stake. It's not a time for people on the bench who are trying to uphold the system that we have to think about resigning. This is a time to step forward and help inform everyone of really what we're all about, the way we operate and the good work that we do.”

Cady, who took questions from The Gazette's editorial board for nearly an hour Wednesday morning, wrote the Varnum v. Brien decision striking down Iowa's ban on same-sex marriage. That makes him a robed lightning rod. Some Republican state lawmakers would even like to impeach him and his remaining high court colleagues.

It was Iowa's newly re-elected GOP governor, Terry Branstad, who appointed Cady to seats on the state's district court, Iowa Court of Appeals and Supreme Court. Cady still lives in Fort Dodge and works much of the time from an office in the Webster County Courthouse. He probably spends less time with the so-called "ruling class" in Des Moines than many of the critics who paint him as an elitist.

He's taken plenty of shots. A radio host in Des Moines recently called Cady and his colleagues "enemies of God."

But he's not backing away from the ruling. Not one inch.

“We all worked on this case as hard as humanly possible,” Cady said. “We pored over all of the evidence submitted in the case. We carefully reviewed all the arguments, all the authorities. We did everything that would be expected of a court to do. I think the unanimity in the opinion reflects that hard work.”

Cady wrote that the same-sex marriage ban violated the Iowa Constitution's equal protection clause, which bars legislative actions that grant privileges to any citizen or group that do not apply equally to all citizens. Critics insist this is a dangerous precedent that deviates from intent of our founders, who never mentioned gay rights.

But Cady says the founders actually spoke clearly by not carving notches, loopholes and niches in equal protection. And they left no directions for easily, swiftly slicing it up to please the heated politics of the moment. They probably were wise enough to know that exemptions aimed at smacking this group or that over time would weaken the constitution's ability to protect all of us from misused government power.

Cady cites an 1876 Iowa ruling striking down segregated schools. “We made it clear then, when there's a constitutional principle that speaks in an absolute, as Iowa's equal protection clause does, judges don't have any discretion to make up or find exceptions to that. That would actually be going beyond what our constitution says,” Cady said.

Clearly, there is more than a single issue at stake here. Many Iowans are uncomfortable with same-sex marriage, but I think they have much more to fear from the prospect of a court system that favors loud public opinion over equal protection, or that ignores law, evidence and argument to serve a political ideology.

The only thing standing between us and that dim possibility are judges like Cady, who, luckily, aren't ready to quit.

Comments: (319) 398-8452; todd.dorman@sourcemedia.net