Friday, April 22, 2011

Effort to Impeach Iowa Supreme Court Justices

“I don't even know which trick I ought to try”

Gavel to Gavel is reporting that impeachment resolutions have been filed in the Iowa House to try to remove the remaining  four Iowa Supreme Court justices who joined the unanimous May 2009 decision holding that the state constitution required an end to the state’s exclusion of same-sex couples from marriage.  The other three justices who had joined that decision were unseated in a retention election in November 2010 after a campaign greatly supported by the National Organization for Marriage, a group dedicated to perpetuating the exclusion of same-sex couples from civil marriage.

Now, several Republican legislators have filed resolutions accusing the justices of exceeding their lawful authority, the Iowa Republican reports.  The charge, in my view, borders on laughable.  The Iowa Supreme Court’s opinion in Varnum v. Brien carefully details the state’s longstanding constitutional tradition of protecting equality, liberty, and fundamental rights, and governmental justifications for denying lesbigay people the right to marry the person they love are, at best, phenomenally weak.

Happily, this now appears to be political grandstanding by several freshman Republican legislators.  Lezgetreal reports that the Iowa House Speaker has stated that he does not expect the resolution (which goes first to the House Judiciary Committee) to be debated on the House floor.

The justices of the Iowa Supreme Court hardly performed a “good deed” in ruling in favor of Iowan’s right to marry – they upheld their judicial duty to uphold the law including the state constitution impartially – but the punishment visited upon the ousted justices was real and ominous, though misplaced.  It will be a relief once the current punitive impeachment efforts are definitively put to rest.

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Thursday, April 7, 2011

Arkansas Ban on Adoption by Gay (and Other Unmarried) Cohabitors Struck Down

The man’s got his eye on me/And that’s an invasion of my privacy

The Supreme Court of Arkansas unanimously held today that the state’s ban on adoption or foster parenting by persons who are cohabiting with a sexual partner outside marriage violated the state constitution.  In Arkansas Department of Human Services v. Cole (opinion here), the court concluded that the law violated the state constitutional right of privacy.  This decision is a great development for the children of Arkansas who need parents or foster parents.

The current ban on adoption or foster parenting by unmarried sexual cohabitants was written in sex-neutral terms, so that it applied to people who cohabit with a sexual partner of a different sex or one of the same sex.  It had been adopted by the voters through an initiative in 2008 in the wake of a 2006 Arkansas Supreme Court decision striking down a ban on foster parenting by any individual if a lesbigay person was a member of his or her household.

In Cole, the Arkansas Supreme court did not rely on the transparent discriminatory intent behind the initiative ban.  Rather, the court’s decision built upon a 2002 Arkansas Supreme court decision in Jegley v. PicadoJegley had held that the Arkansas Constitution contained an implicit right of privacy, and that a state law criminalizing oral or anal sex by same-sex couples violated that right as applied to private, consensual, noncommercial sex.  Today, the Cole court reasoned that the parenting ban burdened the right to engage in sexual intimacy, forcing people to “the pernicious choice” between being eligible to adopt or to foster parent a child, or being able to exercise their fundamental right of privacy.

Because the right of privacy, including the right to engage in sexual intimacy, is fundamental under the Arkansas Constitution, laws burdening this right are examined by Arkansas courts under a nondeferential, “strict” or “heightened scrutiny” standard.  The law burdening the right must be  narrowly tailored or the least restrictive way of furthering some compelling (not just legitimate) state interest.  Although the court agreed with the defendants that protecting the best interests of children is a compelling interest,  Because some people cohabiting in a sexual relationship with someone outside marriage were conceded to have the ability to be good parents, and because the initiative enacted an across-the-board, categorical ban on adoption and fostering, when the individualized assessment process for adoptions and foster parent placements was adequate to protect children’s interests, the Arkansas Supreme Court held that the ban was not the least restrictive means of protecting children.

Before Arkansas changed its nickname to “the Natural State” (‘sex is natural, sex is good’?), it was the “Land of Opportunity.”  With the decision in Cole, it is once again a land of greater opportunity for children to be raised by loving, competent parents.

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