In a unanimous ruling on Friday, the Iowa Supreme Court ruled that a ban on same-sex marriage violates the state’s constitution. It appears that the only way Iowa’s opponents of same-sex marriage can now have their position become the law of the land is to pass a constitutional amendment in their state, a process which the NY Times says would take at least two years. (The link above is to a PDF of the actual court opinion.)

Although the court could suspend the enforcement of its verdict, I don’t believe it will given that the verdict was unanimous and given the Court’s opinion that “We are firmly convinced the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective.” Essentially, the court upheld an equal protection argument for gays who want to marry.

As I’ve said before, I think the equal protection argument is fairly strong, but I do not support gay marriage for one main reason: I believe government should be out of marriage entirely. Allowing gay marriage only cements the government’s intrusion into our private lives.

My other big problem with Friday’s events is that a court essentially overturned the will of the people. I, better than most, understand that we are not a pure democracy, but the principle of avoiding a tyranny of the majority is most important at the federal level. A majority rule at the state level is truly what should happen most of the time; it is after all easier to move out of a state than out of the country. Courts should be far more cautious than they often are in overturning the will of the people.

The Iowa court directly addresses this issue starting on page 12 of their opinion and argued that their primary role is to defend the state constitution: “A statute inconsistent with the Iowa Constitution must be declared void, even though it may be supported by strong and deep-seated traditional beliefs and popular opinion.”

But then, as they jump into a discussion of equal protection and how the court examines a law, they allow themselves to consider “legislative facts":

At times, however, judicial decision-making involves crafting rules of law based on social, economic, political, or scientific facts… These facts have been denominated as “legislative” facts and become relevant to judicial decision-making when courts are required to decide the constitutionality of a statute, among other occasions. Id. As a result, judicial decision-making in the context of constitutional issues can involve the “process of adapting law to a volatile social-political environment

It is much the same argument that the proponents of a “living constitution” make, and in my view it leaves just as much room for mischief.

The good news about the result in Iowa is that it will further underscore the importance of choosing judges who realize they are not legislators.

While I oppose government-recognized gay marriage, it’s because I oppose government recognition of any marriage. Any two people should be able to make any contract they want. Any contract related to one’s personal relationships should have no tax consequences. Any employer should be able to offer same-sex benefits or to refuse them; having someone fund something he believes is immoral is equally immoral.