NOM: The people your (Founding) Fathers warned you about

Cross-posted at Waking Up Now.

by Rob Tisinai

NOM has defeated all three of the valiant Iowa State Supreme Court justices up for retention, justices who voted to uphold basic rights for all citizens regardless of popular sentiment.

It’s a big win for NOM. It’s a huge blow to the Constitution and the form of government created by our Founding Fathers.

Maggie Gallagher wouldn’t say so, of course.

Here we have an openly gay (according to the San Francisco Chronicle) federal judge substituting his views for those of the American people and of our Founding Fathers, who I promise you, would be shocked by courts that imagine they have the right to put gay marriage in our Constitution.

Yeah, they’d be shocked, but only because they understood so little about gays, lesbians, and same-sex relationships. What would shock them, too, though, is NOM’s thoroughly unAmerican rhetoric and behavior toward Iowa’s judges.

Conservatives (and Tea Partiers in particular) constantly invoke the Federalist Papers to explain the government our Founders intended. So let’s look at #78, which sets out the philosophy behind an independent judiciary. We’ll find three points that NOM would rather keep hidden [emphasis added in all quotes below].

1. Judges have a duty to declare laws invalid if they violate the Constitution

A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

2. Judges have a duty to protect the rights of minorities

But it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. It not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts.

3. Judges (especially at the highest levels) should not be subject to a vote by the people

That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws.

Let’s be very clear on that last point: When the people can vote on a judge’s tenure, judges will be so tempted to base their decisions on popularity that they can’t be counted on to uphold the Constitution.

Compare that to the strategy laid out by NOM’s Brian Brown:

Many people that have commented on what we’re going through right now, especially with the Proposition 8 case in California, are looking at the Iowa judicial retention election – and even though there are many important elections about the country – they’re actually saying this is the most important election because it will send a clear signal to the Supreme Court and other judges that they don’t have the right to make up the law out of thin air. Their job is to interpret the law, it is not to be out robed masters and judicial activists imposing their will on the rest of us. And so if the people of Iowa do what I think they’ll do and stand up and remove these judges, there will be reverberations throughout the country all the way to the United States Supreme Court.

The National Organization for Marriage is exactly what the Founding Fathers warned us against.

• NOM is a radical organization, not a conservative one.

• NOM wants to butcher the balance of power set up by our Founding Fathers, not restore it.

• NOM wants to subvert the Constitution, not uphold it.

NOM’s actions constantly violate their rhetoric. They claim they’re protecting children, but deny family protections to the children of same-sex couples. They claim marriage law should be up to a vote by the citizens of each state, but push a federal marriage amendment that would deny citizens that vote. And now, while invoking the Founding Fathers, they pursue a political strategy in exact opposition to what the Founders intended.

Is there any principle avowed by NOM that they won’t violate, as long as it hurts the gays?