Will Iowa’s “Gay Marriage” Judge Be Impeached?

Marriage has evolved over time, in legislatures and courts, to meet the changing needs of American society and to embody fuller notions of consent and personal choice.

—Judge Robert Hanson, 5^th District, Iowa^[1]

The modern state is in the business of remaking reality.

—R. J. Rushdoony^[2]

A petition drive to impeach the Iowa judge who temporarily imposed same-sex “marriage” on his state last summer will probably not achieve its goal, its backers have admitted.

“But we’re not giving up,” Jason Hamann, one of the founders of Everyday America, told Chalcedon. “Look what happened with the Immigration Reform bill last year. That gives us hope. That bill was supposed to sail right through; but enough people got outraged enough to get it stopped. We hope we can get this stopped, too.”

In August, District 5 Judge Robert Hanson struck down Iowa’s Defense of Marriage Act as unconstitutional.

Everyday America, established a few weeks before as an enterprise in civic education, immediately set about trying to get Hanson’s decision overturned. They recently presented to the Iowa State Legislature a petition with more than 6,000 signatures on it, calling for the impeachment of the judge. Members also visited the State House several times to meet with legislators.

The Ruling

“We knew we would have trouble when we found the whole rotunda full of government agencies lobbying the legislature for more money,” Hamann said. “I mean, it was the government lobbying itself …”

Legislators, he said, are “very hesitant to anger the judiciary. As a coequal branch of the government, I don’t know what they’re afraid of.

“We’re supposed to have a system of checks and balances; but the ugly little secret is, it’s not working. The judiciary is the branch of government most insulated from the people; and the legislative and executive branches, who do have to answer to the people, don’t rock the boat. They just won’t stand up to the judiciary.”

The House speaker, Hamann said, apparently “has no problem with what the judiciary has done,” making Hanson’s impeachment “very unlikely.”

“It’s a shame, because we have a really strong constitutional argument. Legislating from the bench as he did, the judge violated the constitutional separation of powers.”

The judge’s 63-page ruling is rife with imperious statements, such as his observation (on p. 40) that traditional views of marriage are “old and overbroad stereotypes that do not reflect the diversity of individual men and women.” On page 44 he states that “The Defendant [the state of Iowa] repeatedly makes the argument that because no state Supreme Court or United States Supreme Court decision has declared same-sex marriage to be a fundamental right, this Court is precluded from finding the existence of such a right. However, the Iowa’s [sic.] appellate courts have acknowledged that Due Process rights are fluid …” (emphasis added). Or, in simpler language, “Just because no court in the land has ever found a constitutional right to same-sex marriage doesn’t mean I can’t!”

It is amazing how little precedent matters, when a judge is bent on social engineering.

Can the Judge Be Removed?

Steve Deace, host of a statewide daily talk radio show on WHO Radio, was one of the backers of the petition drive.

“Punishing unruly judges is absolutely necessary, like punishing unruly children,” Deace said. “Unfortunately, the Speaker of the Iowa House doesn’t seem to understand the grounds to impeach a judge.

“Our state constitution finds ‘general malfeasance’ as grounds for removing a judge.^[3] That means ‘doing anything you shouldn’t do.’ The people take it very seriously, but our leaders don’t. There’s a major disconnect between the people and their leaders.”

Although he thought the impeachment petition “had a chance” to succeed, Deace said some stronger action “is very definitely needed to take away the mechanism by which men like Hanson can exert judicial tyranny. But the legislators and the judges all go to the same cocktail parties, and the law schools are cranking out Robert Hansons a dime a dozen.”

“Stronger action,” Jason Hamann said, might be in the form of a “retention vote” on Hanson in 2010. In Iowa, district judges, originally appointed by the governor (Hanson’s appointment was in 2003), are subject every six years to a “retention vote” by the people. So it might be possible to oust Hanson in 2010.

Meanwhile, Hanson’s decision has been put on hold, pending a ruling by the Iowa Supreme Court. In fact, it was Hanson himself who put a stay on his order, the day after he issued it. In the interval, one “gay marriage” was performed in Iowa.

“The whole thing’s very suspicious,” Hamann said. “The ruling was on Labor Day weekend, the judge waived the statutory waiting period to get a marriage license, the two men were ‘married’ immediately—and then Hanson stayed his own decision, pending appeal to the Iowa Supreme Court. The timing of all this couldn’t be more suspicious.”

The Role of Government?

We hold these truths to be self-evident, that all men are created equal, and that they are endowed by their Creator with certain inalienable rights …

—The Declaration of Independence

Everyday America was not formed to respond to any single issue, Hamann said, but “to promote constitutional literacy. Two months later, Hanson’s ruling just popped up. So it needs to be addressed right now.”

“People really don’t know what the role of government is anymore,” he said. “Even if this [campaign to impeach Hanson] doesn’t work, maybe it’ll at least help educate people.

“Government has expanded to the point where we’ve totally lost the idea that there is a role for the community, for neighborhoods, for families. We’ve lost our understanding of the Declaration of Independence.

“So we do this because we love the Constitution. We’re not out for any one issue.

“The judiciary is running over the people because the legislature won’t do what it’s supposed to do. It has become a pattern, a circle that needs to be broken.”

Drifting toward Tyranny

Judicial tyranny did not spring up overnight. It has deep roots in America’s drift away from adherence to God’s laws toward a more and more pervasive statism.

R. J. Rushdoony addressed this issue again and again. In his posthumously published book, Sovereignty, are found various passages that shed light on the matter. A brief sampling:

*“Shortly after World War II, then Chief Justice of the U.S. Supreme Court Frederick Moore Vinson declared, ‘Nothing is more certain in modern society than the principle that there are no absolutes.’ The courts since then have functioned on that premise.” (p. 128)

*“[A]part from Biblical faith, law sooner or later evaporates into nothing … Human laws are variables of human willing … Beginning with Justice Holes and on to the present, American justices have held that religion and morality have nothing to do with law, which is the will of the state.” (p. 134)

*“[The court] will not be guided by any higher law of God. There is no recognition nor admission that law or justice can exist above and beyond the state.” (p. 198)

It does not look like Iowa’s legislators will do anything to rein in a rogue judge who believes the basic institutions of human society are “fluid” and subject to redefinition by himself. This usurps the constitutional function of the legislature, but the legislators don’t seem to mind.

We have seen this before: in Massachusetts, where four of seven judges on the state’s high court redefined marriage and the state legislature refused to exercise its constitutional prerogatives, and on the national level, with Congress refusing to curb federal judges who cite foreign law as the basis for their decisions and routinely wrest the Constitution to discover new “constitutional rights” to such things as abortion and sodomy.

Article III, Section 2, of the United States Constitution explicitly states, “In all the other cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make” (emphasis added). In other words, Congress has the authority to make exceptions: it could, for instance, remove cases involving the definition of marriage from the Supreme Court’s jurisdiction.

But it hasn’t.

The state constitution of Massachusetts includes a provision called a “bill of address,” which allows a simple majority in the legislature, for any reason or even for no particular reason, to remove any state judge from office.^[4] But legislators have not exercised this power; and in the absence of any legislation whatsoever to establish it, there has been “gay marriage” in Massachusetts since 2004.

The Iowa legislature has constitutional grounds (“general malfeasance”) to impeach Judge Hanson, but the legislators have no philosophical basis for doing so: they are every bit as statist as the judge, recognizing no higher authority than the state. They simply do not see themselves as being under any higher law of God and accountable to Him.

By and large, people oppose “gay marriage” because they know, somehow, that it’s inherently wrong. If their opposition is based on the teachings of the Bible, they know it’s wrong because God has declared sodomy an abomination. But if they make this argument to legislators or fellow citizens who do not recognize the absolute authority of God’s Word, their listeners will not hear them. But if they argue from any other basis, the arguments are endless: every worldly reason to oppose “gay marriage” is met by another worldly reason to allow it.

The Long View

Rushdoony founded the Chalcedon Foundation because he understood that a people set adrift from God’s laws will not be able to find solutions to their nation’s problems, judicial tyranny being only one among many. Godlessness being the source of the problems, Godless solutions will not work.

He also understood that the only way to address those problems is to move the people back to God and God’s laws. The drift away from God having developed over centuries, there can be no “quick fix” such as envisioned by the Christian Right. Instead, there must be a long, slow process of re-Christianizing America by means of stronger families, stronger and more Biblically committed churches, and a strong Christian education for whole generations of children—who for almost 200 years have been receiving statist educations in government schools. The work may not be dramatic, or glamorous, but it must be thorough.

We need leaders who truly believe that they serve under God and are accountable to Him. Such leaders can only be generated by a Christian people.

Everyday America is right to seek to educate citizens in the meaning and purpose of their country’s founding documents; but this doesn’t go far enough. People need to understand that those documents are authoritative only insofar as they derive their authority from the Word of God. This, after all, is why the chambers of the Supreme Court are decorated with a mural of Moses receiving the tablets of the law.

Our Lord Jesus Christ says, “All power is given unto me in heaven and in earth” (Matt. 28:18). And St. Paul says, “For there is no power but of God: the powers that be are ordained of God” (Rom. 13:1). But the Judge Hansons of this world, and the legislators who enable them, believe their powers to be self-ordained.

We must not grow weary in well-doing, but press on with the great work of Christian Reconstruction, mindful that a good tree bears good fruit, and a corrupt tree bears evil fruit. The tree of secular statism, which has put down such deep roots, must be replaced by the tree of Christianity.

As we educate more and more of our children in Christian homes or Christian schools, establish churches truly obedient to God’s Word and eager to educate their congregations in it, we must be patient and courageous in our faith that God will surely keep His promises.