Thoughts on the Iowa Supreme Court’s Marriage Decision

First, let me thank Prof. Slavin for inviting me to contribute to the blog.  I shall try not to be dull, and in that effort, I begin my blogging stint with a controversial topic, the Iowa Supreme Court’s recent decision striking down the state’s ban on same-sex marriage.

My take on same-sex marriage begins with my personal experiences with same-sex couples, and homosexuals in general.  If the law treats them like second-class citizens, and my experience shows me that this is just not right, then I look to the law to make sense of why this treatment must be so.  And I cannot find the justification.

The first time I met someone I knew to be gay was in the Navy.  I met many during my service.  On our boat, the presence of gay sailors was open and notorious, and no one cared.  They did their jobs and stood their watches; nothing else mattered.  It was the same on shore.  

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Judicial Campaign Talking Blues, Part 1

March law review madness has pretty much kept me from getting my blog on, so I have a whole slew of pontification on back order.

One of the things I am wondering about is campaign rhetoric in judicial elections. We all hate it, but why?

I have been thinking about it through the lens offered by one of my favorite law school professors, Duncan Kennedy. He said that there were two species of error in the way that non-lawyers think about the law. One is lay cynicism — the idea that judges do whatever they want to and that judging was just politics by another name. (There was, of course, a sense in which Duncan believed this — probably still does — but it was at a structural rather than decisional level.) 

One of the things that I think we hate about many judicial campaign ads is that they appeal to this lay cynicism.

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Okay, Judge, You Hit Your Number or Die in This Room*

Much of the attention following yesterday’s decision in Siefert v. Alexander focuses upon the invalidation of prohibitions against judges or judicial candidates belonging to political parties and endorsing partisan candidates for office. That part of Judge Crabb’s decision seems to me, given the balance between regulatory interests and the protection of speech struck by the United States Supreme Court in Republican Party v. White, to be clearly correct.

And not, in my view, very momentous. Many judges have prejudicial partisan affiliations and, in highly salient elections, it is not hard for the public to discern whether a  candidate is a Republican or Democrat.  In fact, one could argue that allowing candidates to claim partisan affiliation is a relatively efficient way to provide pertinent information to voters in campaigns where discussion of the issues is difficult and often cramped by legal and customary restrictions.  It’s not that we expect judges to rule in whatever way their party wants (although, as Judge Crabb points out, the prior partisan affiliation of federal judges is strongly correlated with voting patterns), but that partisan affiliation may tell us something (admittedly broad and general) about a candidate’s judicial philosophy.

More significant, it seems to me, is that part of the decision striking down the Code of Judicial Conduct’s prohibition against the personal solicitation of funds by judges and judicial candidates.

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