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Discussion: Civil Rights and Change in the Iowa Constitution

posted on April 23, 2009 at 7:16 PM


Paul Yeager: Clearly this is not Iowa's first experience with a controversial ruling or the reaction to it.  But what can we expect in the coming months?  Is social justice the intended role of the constitution?  How does the Iowa Constitution shape our daily lives?  How will Iowa's decision affect constitutional guarantees in other states? 

Mark Kende holds the James Madison Chair in Constitutional Law at Drake University and he's also the Director of the Drake Constitutional Law Center. 

Also on the program tonight is Karen Thalacker.  She's an attorney and a lecturer in public law at Wartburg College, also author of the new book called "The New Lawyer's Handbook."  To the two of you, welcome to The Iowa Journal.  Glad to have you for this discussion tonight. 

It's going to move along quickly and this is a subject that everybody has been talking about, I'm sure your ears have been bent on these but first I just want to talk -- we just saw how Iowa has really kind of set the standard, Mark, when it comes to cases like this.  Is that really the case?  Has Iowa been ahead of the curve on decisions like these?

Mark Kende: It really has, as you saw from the piece in terms of issues such as whether a slave is property, whether there can be segregation, the role of women, Iowa has in fact been ahead of the curve.

Paul Yeager: So, the question now is has the reaction been the same each time there's been one of these historical decisions?

Mark Kende: There's always some resistance, there's always some concern and some people who aren't prepared.  It varies, though, depending on the issue and so in that sense there's some variation but usually there's some people who don't like it and there's some people who do.

Paul Yeager: That's the way it goes.  Karen, is that the same assessment you would have from your portion of the state?  Has the reaction been the same the way it played out historically in other times?

Karen Thalacker: Yes, I would say so, that people have a variety of opinions about the court's ruling.  What I hope is that people will actually go to the Supreme Court Web site and read the ruling and not rely on necessarily people from the media or bloggers to tell you what the ruling said, you can read it for yourself.

Paul Yeager: I asked a couple of the justices to be on this program but by their reason they say their decision stands.  What did you gleam from -- I think it's a 69-page response -- what did you glean from it that was some of the things that struck you the most?

Karen Thalacker: First and foremost that denying same sex couples the right to this civil institution of marriage violates the equal protection clause of the Iowa Constitution, that you have to give them access to that right and so much of the disagreement that you hear with the decision is based on religious grounds and the court does address those at the end of the ruling.  And so the county in this case who was saying that the law should stand they didn't even make any religious arguments because that's not appropriate in the society that we live in.

Paul Yeager: So, the things that comes out of, at least the language that comes out of this decision, Mark, is that something that is going to play in other states' discussion about this exact same topic?

Mark Kende: Oh, I think very much, it is a very well reasoned opinion regardless of whether one agrees or disagrees with it in terms of the result, it's a very well reasoned, very thoughtful opinion, it focuses predominantly on the equality issue and in that sense I think it's going to have some real significance in other states.

Paul Yeager: What do you think they're going to look at?  Are they going to look at the response that's been outside of the court?  Or are they just going to solely look at that decision?

Mark Kende: Well, I think it's going to have the affect of when other courts get this issue.  They typically in other states look to see what then other states have done.  Especially a state like Iowa, which is sort of the heartland of America, to have an opinion like this coming out of a heartland state, written in very powerful and persuasive language, again, regardless of what side you're on I think it's a really well crafted opinion and the more well crafted the opinion the more significant it is in other states.

Paul Yeager: Karen, do you think the same thing, this will play out differently in other states or do you think Iowa is going to lead the way?

Karen Thalacker: I think Iowa will lead the way but I think the impact of the ruling may not be as great as what some people are saying.  I think each state has its own culture, has its own way historically of how they reach a consensus.  So, although I agree with Mark that the decision, whether you agree or disagree, was really beautifully written, as a lawyer it was fun to read because ten years from now, twenty years from now, 100 years from now, again, whether you agree or disagree, when you look back on that opinion you will know who the parties were, what they were arguing, what the law was and why the court decided the way it did.

Paul Yeager: Let's move on to a little bit of what's next in this decision.  We talk about the mechanics of the opposition, there's three from my understanding, the ballot, the constitutional convention and an executive order.  Karen, I'll let you have the first one here when it comes to ballot.  What is it going to take to get this issue to a ballot for Iowans to have their say?

Karen Thalacker: Well, Article 10 of the Iowa Constitution is what covers the process of amending the document and I think it's safe to say the framers of our constitution wanted to make it a difficult process, they didn't want it to be a spur of the moment decision and so the ballot process it has to go through two separate general assemblies.  Right now we're in the first year of a general assembly which is '09 and '10 so if it gets passed, if an amendment would get passed in this general assembly it would then go on to the next general assembly in '11 and '12.  So, the earliest possible time that this could come up would be November of 2012.

Paul Yeager: So, that's a long way -- we can't even really talk about it, it doesn't count because it's still the assembly what you're saying or the folks that have been elected, that are serving right now that would come in next January.

Karen Thalacker: Yes, that's exactly right.  And when you look at the way that the constitution was constructed the framers wanted to put a firewall, if you will, they wanted the document to remain as it was -- instead of a firewall I say a flood wall because Iowans are familiar with that -- that they want to make sure that the little ripples in public opinion, maybe the rising water from the passing storm, that doesn't get over your flood wall but if you've got rising water for a long period of time you may get a constitutional amendment but it's going to be hard.

Paul Yeager: And that's exactly, as you said, the constitution was designed that way.  What about the constitutional convention?  What does that entail?

Mark Kende: It basically entails the public in 2010 getting a chance to vote on whether to have a constitutional convention.  The idea actually goes back to Thomas Jefferson who, in some of his writings, said countries should every twenty years consider whether to have a new constitution or not and Iowans recently decided to give the populous a chance every ten years to make that decision.  So, if they were to vote in favor of that then the general assembly would have to devise some rules for going forward with the constitutional convention.  But the trick is that doesn't have to be limited just to the gay marriage issue so that's what makes it a complicated question.

Paul Yeager: There could be several things.  You mentioned a couple of things I want to break down and one is just how do you appoint who goes to the constitutional convention?  We heard the term in the last general election about super delegates.  Is that kind of the way it is set up?  Are there people appointed on both parties?  How do you make that convention up?

Mark Kende: My reading of the constitution is that it's going to be up to the general assembly to decide that.  Now, I know some other states in the country that have had this opportunity so Montana has a relatively modern constitution, 1970s, unlike ours which goes back to 1857.  When they decided to set up a constitutional convention what they decided to do was to not allow any current sitting members of the legislature be the delegates and that was their way of preventing the sort of political elites from being in control and instead to leave it to the populous.  So, that is certainly one option although one suspects there's some temptation always to have a role so we don't know how that will play out.

Paul Yeager: There's plenty of former politicians that would probably face that experience.  How does that get started?  You said 2010 is the next time we can even talk about this?

Mark Kende: Right, so it's supposed to be pretty much on the ballot automatically and then there's a vote on that and typically the people of Iowa have voted against it.  There could be a real movement by folks who oppose this proposal, this ruling from the court to put this on the ballot.

Paul Yeager: So who even puts it on the ballot I guess I should have asked first?

Mark Kende: Well, the first decision will be whether to have a convention and then the delegates of the general assembly would decide what the rules are for that convention and presumably one of the rules would be to invite proposals and the proposals could be on gay marriage but it also could be on a whole host of other things.

Paul Yeager: So, the scope is wide.

Karen Thalacker: Right, and it will be on the ballot regardless of whether this decision came about or not.  It was scheduled to be on -- it's every ten years under the Iowa Constitution that opportunity is given to the citizens.  I think it's interesting and it's more of a political topic necessarily than a legal one about the politicians weren't talking a lot about having a constitutional convention because I think they know there's just no precedent for it here and it would be difficult to set up and you do open up the entire constitution to amendment.  And, again, any amendment that was passed would still have to go on a ballot and the citizens of Iowa would have to approve it.  But yet I think people would be a little bit nervous about the whole constitution being out there for people to change.

Paul Yeager: Because you're saying it could be something as ridiculous as everybody must use blue pens, you can no longer use green pens or red pens or something.

Karen Thalacker: That's exactly right.

Paul Yeager: Let's talk about the executive order, that's the third one in this that's an option.  There is a candidate for governor on the republican side who has said the very first thing he would do would be to sign an executive order.  What type of weight would that hold?

Karen Thalacker: It would have no weight, it would have no legal impact whatsoever on the decision that the Iowa Supreme Court made, zero.

Paul Yeager: So, same answer to that question?

Mark Kende: Yes, she's gotten it exactly right, it's basically not considered to be as significant as a constitutional ruling, the constitution trumps an executive order.

Paul Yeager: So, the executive order would basically just be a piece of paper that wouldn't hold any legal weight?

Mark Kende: Right, the most it could do is it might create some complications and maybe a court would have to get involved for a moment and say this has no weight and that's basically where you'd go.

Paul Yeager: Where would it go next?  You're saying it would go to -- which court level would it go to?  Would it go right back to the Supreme Court or would it have to start back in the district court level?

Mark Kende: I think if an executive order got issued it would first depend on whether anyone followed it knowing that it's really not law.  If anyone followed it presumably those people who were grieved by that would then go to court and say this has no weight, please announce that again.

Paul Yeager: You've just led us right into the next thing -- you talk about following it or not, civil disobedience is almost the buzz word of the week where we're hearing reporters -- there's been a ruling from the attorney general that says, no, you have to follow this rule and then there's a senator from north Iowa who's saying, you know what, if you don't want to, you don't have to.  What do you make of this?

Mark Kende: I think they're supposed to follow the rule.  It is a constitutional decision, they're supposed to follow the law, they're sworn and they take an oath to uphold the law.  They have opportunities through the amendment process that we've talked about to try to change things.  They might try to do some legislation involving religious conscience issues but in the absence of that it's a court ruling, that's their job and they're supposed to follow it.

Paul Yeager: Karen, what happens if they don't, though?

Karen Thalacker: Well, somebody is going to get sued.  It's kind of a misunderstanding about individual rights.  You have to observe someone's individual rights even when it's not popular.  Under our constitution individual rights are important and people do not, if they do choose to ignore the Supreme Court order I'm confident there will be consequences for that.

Paul Yeager: Hasn't civil disobedience kind of gotten us on the road to fixing civil rights in the past though?  Hasn't civil disobedience done a part of making headway for what we're talking about today?

Mark Kende: I think there's no question that people -- I'm sure if civil disobedience would be the best choice here -- but if there is an uprising, if there are a lot of people who are upset, if there are protests then maybe that's going to have some impact politically but it won't have an impact legally.  It would have to play out through this political amendment process or having a convention.

Paul Yeager: I want to talk about social justice and the intended role of the constitution.  Is that what the role of the constitution has been is what we call social justice?

Karen Thalacker: Well, it's one of the roles.  A constitution also sets forth the broad framework of your government, how it is set up.  But it also does set forth for everyone to see what the core values of your country are or your state are in this situation and I point people to the United States Constitution where the Bill of Rights was actually, the first ten amendments to the constitution it wasn't part of the original document.  In the Iowa Constitution your Bill of Rights is Article I, it is front and center in the beginning of that document, that's how important it was to the people who were writing that document.

Paul Yeager: I'll let you answer the same one about social justice.

Mark Kende: I think it's exactly what Karen said, it's a combination of an embodiment of the values of Iowans and the Bill of Rights is maybe the place where those values are most clearly embodied but I don't want to forget it is also a structural document and it sets up the structure of governments and so in that sense it's crucial in that respect, that may seem less colorful as the Bill of Rights provisions but really the whole governmental process depends on the way it's structured.

Paul Yeager: And we did rewrite the structure a little bit, Iowa comes after the country so did we do it right?  Did we do it better?

Paul Yeager: I don't know if we did it better, we certainly did it in a way that is not completely different from the way the country did.  There is an interesting part of our constitution though which explicitly mentions the phrase separation of powers which is not explicitly mentioned in the U.S. Constitution although courts have said that is a part of it so maybe we did some things to make them more explicit but the basic structure of the legislative branch, the judicial branch and executive branch we followed with our state.

Karen Thalacker: And when you're talking about individual liberties the majority is going to be just fine, they're going to be okay taking care of themselves.  One of the things that a constitution does is watch out for the rights of the individuals, the people who are in the minority.  So, when I hear people say it's majority rule, a majority of Iowans are against this I think to myself, well, you don't put individual rights up to a popular vote because most times they would lose.  Sometimes, again, individual rights are not popular but they are important.

Paul Yeager: I want to move to the last question here of the night -- you both spend time in the classroom instructing pre-law or law students and you get to interact that way.  In five years when maybe they're sophomores, juniors, seniors, when they are practicing attorneys or any of us in five years what is going to be made of what we're talking about right now or what came out of the supreme court?

Mark Kende: I think a lot will depend on how this process works whether there is a constitutional amendment or not, obviously that is significant.  But I think in five years regardless of what happens there this will be a decision that people look back on and say this is one of Iowa's most significant decisions, potentially one of its most influential and as I said earlier, again, regardless of your position on it one thing I hope people do is what Karen suggested, read the opinion, it's a well crafted opinion whether you agree or not and so that should hopefully mean it has a legacy as something people read and learn about particularly being part of Iowa.

Paul Yeager: What are they going to learn if they read that opinion?

Mark Kende: They're going to learn some things that maybe some people don't agree with but they're certainly going to learn that in Iowa equality, one of these basic rights that in particular minorities are the ones who need equality because the majority is usually doing fine, is very important in the Iowa tradition.

Paul Yeager: Karen, what are you going to take from this in five years?  Look into your crystal ball.  What do you see five years later from all of this discussion?

Karen Thalacker: I think people will still be debating this issue in five years.  Just like Iowa was so ahead of our time with some of those early civil rights cases in the mid-1800s it took until the mid-1900s for the rest of the country to catch up with us and so I think this is an ongoing discussion and we in Iowa are going to have a front row seat for it.

Paul Yeager: Are you excited about that?

Karen Thalacker: I am, any time that we can get people talking about the importance of individual rights that's a pretty good day.

Paul Yeager: Have you been stopped in the last couple of weeks to talk about what has happened, just people wanting to know your opinion on things?

Karen Thalacker: Yes, and I would say whether it's the grocery store or my church people want to know about it, people are talking about it, that's why go to the Iowa Supreme Court Web site and read the opinion.

Paul Yeager: That's Karen Thalacker, she's from Waverly, Iowa, she's a lecturer in public law at Wartburg College, also an attorney and her new book coming out is "The New Lawyer's Handbook."  Mark Kende is in Des Moines, he's a Professor of Law, the James Madison Chair in Constitutional Law at the Drake Constitutional Law Center.  Thank you very much both of you for coming in tonight. 

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