Rebuttal

Rebuttal to the

Iowa Supreme Court Decision

on DOMA

By SOAR Member Steve McCoy

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REBUTTAL TO IOWA SUPREME COURT’S DECISION ON DOMA:

By Steve McCoy

ARTICLE 1. Laws uniform. SEC. 6. All laws of a general nature shall have a uniform operation;

the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities,

which, upon the same terms shall not equally belong to all citizens.

According to Chief Justice Mark Cady, this is what the 2009 decision was based upon. He takes 69 pages

to try and justify his decision. A decision that is an example of inductive and circular reasoning. The

problem with inductive reasoning is that if you start off with incorrect facts you will always end up with

incorrect conclusions and circular reasoning is no more than a formal logical fallacy, an inference drawn

from a premise that includes the conclusion.

In his attempt to justify his decision he makes conclusive statements that are not valid. They are first and

foremost not valid because they are based upon his perception that homosexuals are born with the trait of

homosexuality. In his attempt to justify his decisions he relies on the testimony from psychiatrists and

psychologists. Failing to acknowledge that their expertise is in the workings of the mind and not in the

physiology of the body and the genetic make up man. If he was willing to lay aside his bias and do the

research he would find that the conclusion of the International Human Genome Consortium’s scientific

research states that there is no homosexual gene in the DNA code of mankind. This is not to say that

homosexuality doesn’t exist, but because of lack of scientific evidence homosexuality must be viewed

from the perspective of being a paradigm that has been nurtured rather than the result of DNA. To be fair

I must place the blame on the attorneys who argued the case for DOMA. Why they didn’t argue from the

basis of DNA code foundation is puzzling to me. Their reasons for defining marriage also were weak.

In section 1. Background facts and proceedings, Justice Cady tries to justify the immoral behavior of

homosexuality by balancing it with responsible behavior, as if one neutralizes the other. Is he not then

qualifying marriage on the basis of a curve standard? He further states that one of the factors that

homosexuals are denied is that of status. How preposterous to suggest that status is a tenet of marriage.

He also states that their fundamental right to marry, rights to privacy and familial association have been

denied. Yet DOMA places no restrictions on any of the three.

Justice Cady tries to further build his case by pleading the disadvantages that homosexuals experience.

Yet he will not consider that all these disadvantages are the consequences of their behavioral choices.

Again if one erroneously believes that homosexuals are born with this trait and it is an immutable trait,

then it is easy to see how that would affect that individual’s conclusions.

He spends two plus pages on immutability referencing several case studies. He has placed too much

weight on the statement from “Frontiero vs Richards”, A human trait that defines a group is “immutable”

when the trait exists “solely by the accident of birth”; and also on Justice Brennan’s plurality opinion, “or

when the person with the trait has no ability to change it. The ”Frontiero vs Richards” statement is only

true if you are referring to color of skin, gender or some forms of handicaps. But again I remind you that

there is NO scientific evidence to prove that there is a homosexual gene in the DNA code; therefore, it does

not apply to homosexuals. Brennan’s statement has some validity but again it does not apply to

homosexuals because homosexuals can, and many have, changed their behavior. The criteria for

something to be declared “immutable ” is that it can not be changed. Example, God. So because

homosexual behavior can be changed it does not pass the “immutability” test.

Because “homosexuality” is a behavior and not a geniis issue, Justice Cady has actually violated the spirit

of Article 1. by creating a separate class of citizens and granting them extra privileges and immunities in

addition to the ones they already possess.

In section 3. Constitutional Separation of Powers, Justice Cady makes the statement that, “Like the

United States Constitution, the Iowa Constitution creates a remarkable blueprint for government. It

establishes three separate, but equal branches of government”. The problem with this statement is; yes,

three branches were created, but they are not equal. Polybius was the first to propose a government

divided into three branches but it was Montesquieu who illuminated our Founding Fathers with the

exciting possibilities of a government based on “separated” but “coordinated” powers. The doctrine of

separated powers was not readily accepted in America; not until John Adams advocated it in his pamphlet

“Thoughts on Government” in 1776 did it began to take hold. In fact it took James Madison five Federalist

papers to explain it. But the one thing that was made perfectly clear was that the purpose of “Checks and

Balances” was to put constitutional control in the hands of each department of government to prevent

usurpation of power by another department

ARTICLE 3 OF THE IOWA DISTRIBUTION OF POWERS: Department of governments. SECTION 1.

The powers of government of Iowa shall be divided into three separate departments - the legislative,

the executive, and the judicial: and no person charged with the exercise of powers properly belonging

to one of these departments shall exercise any function appertaining to either of the others, except in

cases hereinafter expressly directed or permitted.

Justice Cady writes about the separation of powers and “checks and balances” but fails to acknowledge

that under article 5, section 4, is the mention of one of the legislative “checks” of power over the judicial

branch.

ARTICLE 5. JUDICIAL DEPARTMENT: Jurisdiction of supreme court. SECTION 4.

The supreme court shall have appellate jurisdiction only in cases of chancery, and shall constitute a

court for the correction of errors at law, UNDER SUCH RESTRICTIONS AS THE GENERAL ASSEMBLY

MAY, BY LAW, PRESCRIBE; and shall have power to issue all writs and process necessary to secure

justice to parties, and shall exercise a supervisory and administrative control over all inferior judicial

tribunals throughout the state.

The sequence of power always places the legislative branch first, the executive second, and the judicial

third. The legislative is first because it represents the people more directly and makes law. The executive is

second because it implements law and the judicial is third because it guards the law by measuring it up

against the constitution for the test of constitutionality. Now Justice Cady believes this is what he has

done; however, by using erroneous information to make his comparison he has allowed the decision to

become tainted, resulting in an invalid conclusion. His agreement with “Koeler vs Hill” that courts are free

from political influences and are therefore better suited to protect individual rights, reflects an arrogant

attitude and a denial of reality. His reference to “Marbury vs Madison” ignores the fact that this case was

all about the power struggle between the Federalists and the Democrat-Republicans. As a result of this

struggle we now have “judicial review” and we are suppose to believe this politically influenced decision

should now be the authority and the standard for the courts today.

To state that the courts are not influenced by politics, special interest groups and individual prejudices

is to deny the depravity of man. There is not a law school today that hasn’t been influenced by Darwin’s

THEORY of evolution. How interesting that the law schools would take the unscientific THEORY of

evolution and use it as a scientific basis for studying law. The Darwinian ideology has influenced the

whole law profession to the point that decisions are now made on the premise of evolutionary law instead

of natural law.

This kind of thinking has lead to Justice Cady’s brief being filled with circular reasoning. It has become the

paradigm that many justices and attorneys default to. It has lead to the concept that we have a “living”

constitution and that our constitution should reflect the changing nature of society.

This kind of reasoning reflects the lack of understanding as to what the purpose of the law is. It believes

that the purpose of the law is to maintain justice, instead of the real purpose, which is to restrain

injustice. Being the guardians of the law and believing that the constitution should reflect the changing

nature of society, they then believe that they are the ones that get to define justice.

Justice Cady correctly states that the constitution belongs to the people, not the government nor the

judicial branch of the government. Article 1. section 2. “All political power is inherent in the people.

Government is instituted for the protection, security, and benefit of the people, and they have the right,

at all times, to alter or reform the same, whenever the public good may require it.”. However, he fails to

mention that the way the people reform it is by elections and amending the constitution, not through

judicial legislation.

In section 4. Equal Protection, Justice Cady attempts to qualify the process of how equal protection is

defined by stating that it begins with classifying people into groups. This very concept violates Article 1.

section 1. “All men and women are by nature, free and equal......” What has been totally disregarded is

the reason why our Iowa Constitution used the phrase, “free and equal” and why the Declaration of

Independence used the phrase, “that all men are created equal”. By using such language our Framers were

declaring and establishing that people in this land would no longer be classified into groups. So the court’s

process of evaluation based upon classifying people into groups is flawed because it goes counter to the

precedent that all men are created equal.

In section g. Determination of Appropriate Level of Scrutiny, Justice Cady spends a great amount of

space to justify rights and privileges for a behavior. The same kind of logic used here is also the same

kind of logic that would justify adults having sex with children as young as 12, a position that Supreme

Court Justice Ginesburg supports; it would also argue that pedophiles should have no restrictions on

where they work or live. Absurd you say, well look at what the courts have done with the homosexual

behavior. They have elevated it to the level of human rights through ruling after ruling.

In section I. Religious Oppositon to Same Sex Marriage, In this section Justice Cady proceeds to bring up

the issue of religion and then dismisses it as a non-viable rationale for opposing same sex marriage. His

rationale is that marriage is a civil contract. He acknowledges that the tradition of marriage has been

around for thousands of years but then dismisses religious justification by disqualifying it because of its

correlation to biblical interpretation. Of course by only referencing it to Christian religion he has revealed

his own prejudice and offended and dismissed all the major religions of the world, who also for

thousands of years have held to the belief that marriage is between a man and a woman. In the Iowa code

on marriage, chapter 595 Marriage, section 595.19, Void Marriages; the legislature has established the

criteria for voiding marriages. According to the marriage code of Iowa, marriages can be voided if,

marriages are related by blood. A man cannot marry his aunt, his daughter, his sister, his

granddaughter, or his nieces. A woman cannot marry her uncle, her son, her brother, her grandson or

her nephew. First cousins cannot marry and marriages of multiple spouses are forbidden. Is Justice

Cady’s saying this section of the code is not based on religion and tradition? He uses Article 1.

section3.,”The general assembly shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof; nor shall any person be compelled to attend any place of

worship, pay tithes, taxes, or other rates for building or repairing places of worship, or th maintenance

of any minister, or ministry.” to build an argument for the plaintiffs, but it has no application in this case.

Furthermore, in Justice Cady’s quest to validate his opinions he has failed to define the meaning of

marriage, the tenets of marriage and the purpose of marriage. Without these premises there is no solid

foundation for him to rest upon. He dismisses religion for religion sake but proceeds to use the religion of

Humanism and the beliefs of apostates for the foundation. The testimony of the Humanist Manifesto

would negate the argument that Humanism is not a religion. Everything is religion, because the basic

definition of religion is; a body of persons adhering to a particular set of beliefs and practices. The

question we must ask of ourselves is, will our law be constructed from the beliefs and practices of Darwin

and will Secularism be our guide or will we once again embrace Natural Law?

In his landmark books on the “Republic and the Laws”, Cicero establishes the only sound basis for

sound government and just human relations is “Natural Law”. He defines Natural Law as “true law”

and then goes on to say:”True law is right reason in agreement with nature; it is of universal application,

immutable and everlasting; it summons to duty by its commands, and averts wrongdoing by its

prohibitions.... It is a sin to try to alter this law, nor is it allowable to repeal any part of it, and it is

impossible to abolish it entirely. We can not be freed from its obligations by senate or people, and we

need not look outside ourselves for an expounder or interpreter of it. And there will not be different

laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable

law will be valid for all nations at all times, and there will be one master and ruler, that is God, over us all,

for He is the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing

from himself and denying his human nature, and by reason of this very fact he will suffer the worst

punishment.”

The argument from those who oppose Natural Law is “ Moral law can not be legislated”. Law is either

moral or it is immoral. The law of opposites would dictate that if moral law is not the standard, then by

neglect or purpose immoral law will become the guiding principle for a society. A free people cannot

survive under a republican constitution unless they remain virtuous and morally strong. The most

promising method of securing a virtuous and morally stable people is to elect and appoint virtuous

leaders. Being the guardians of the law, the judicial branch of government has the greatest influence and

therefore shoulders the greatest responsibility. The decline of a society can be traced back to the rulings of

the judicial system.

If Justice Cady wants to believe in the religion of Humanism and embrace Darwinism and the ideology

of secularism, he has the freedom and liberty, in this great nation, to do that. However, these positions

disqualify him from making judgments on a constitution that was founded on the principle of Natural

law. For our very own preamble states, “We the people of the State of Iowa, grateful to the Supreme

Being for blessings hitherto enjoyed, and feeling our dependence on Him for a continuation of those

blessings, do ordain and establish a free and independent government. This belief is further

demonstrated in Article 1. section 1., where it says, ”All men are, by Nature, free and equal and have

certain inalienable rights.....”.

It was also succinctly stated in our country’s founding document, the moral law of this nation, The

Declaration of Independence; which says, “We hold these truths to be self evident, that all men are

created equal, that they are endowed by their Creator with certain unalienable rights, that among

these is Life, Liberty, and the pursuit of happiness (right of property). That to SECURE these (Creator

given) rights, Governments are instituted among men, deriving their just powers from the consent of

the governed.”

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In conclusion Chief Justice Cady has rendered a bias decision that is in error on the three main points of

the case. First and foremost, the lack of a homosexual gene in the DNA code of man disqualifies the

homosexuals law suit on the basis of an immutable trait. Second, Justice Cady’s inability to define the

meaning of marriage, the tenets of marriage and the purpose of marriage has thereby provided inadequate

justification for his ruling. Third, the case is based upon “equal protection”, Article 1. Laws uniform.

section 6. “All laws of a general nature shall have a uniform operation; the general assembly shall not

grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not

equally belong to all citizens”; and because the plaintiffs have not been denied privileges or immunities

as citizens, and because Justice Cady has failed to prove that the Iowa Constitution provides “equal

protection” for behavior and because the courts have no authority to create classes of citizens; therefore,

they have failed to constitutionally validate their decision, and therefore have failed in the execution of

their duties and responsibilities. If the courts are going to declare DOMA unconstitutional based upon

discrimination and at the same time hold up section 19 of code 595 as constitutional than by their

judgment they have imposed discrimination on the individuals mentioned in section 19 and are guilty of

prejudicial jurisdiction.