If Republican lawmakers are paying attention, and they clearly are not, they need to go back and rewrite the collective bargaining bill passed earlier this session with much fanfare.
I say that because the law, as passed and signed by Gov. Terry Branstad, contains the same legal flaw that undid two other high-profile laws that you might recall.
One was Iowa’s Defense of Marriage Act, which ended abruptly in 2009 when the court ruled unanimously that it was illegal discrimination to deny same-sex couples the parenting rights and tax benefits that marriage provides to opposite sex couples.
The other case involved Iowa’s gambling tax. In a precursor ruling that encouraged gay marriage advocates, the Iowa Iowa Supreme Court said the gambling tax amounted to illegal discrimination because it set a higher tax rate (36 percent) for horse and dog racing tracks than for riverboat casinos (20 percent).
In both situations lawsuits hung on for years, before the high court ruled the situations were clear violations of Article 1, Section 6 of the Iowa Constitution, which guarantees equal protection under the law.
That’s the same constitutional section that public employee unions have cited in their legal challenges to the new collective bargaining law. They argue that the new law creates special bargaining rights for police and firefighters by removing those same rights from teachers and other public sector workers.
Article 1, Section 6 of Iowa’s constitution is really very simple. It contains only 39 words, and reads:
“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.”
My former Des Moines Register colleagues Tom Witosky and Marc Hansen wrote a book about gay marriage called “Equal Before the Law” in which they traced the history of Article 1, Section 6 to Iowa’s 1857 constitutional convention. The language, they explained, was initially aimed at unscrupulous business practices but was later applied to civil rights.
In fact, it was instrumental in making Iowa one of the first states to guarantee equal educational access to nonwhite children, as well as giving blacks the vote and equal access to public accommodations before most other states did.
Now the Iowa State Education Association and other public employee unions want to apply Article 1, Section 6 to the new collective bargaining law.
And it looks like a good fit, given what happened with gay marriage and the gambling tax.
Lawmakers clearly made a rush to judgment when they passed the new collective bargaining law. Their intent was to limit the topics that are subject to public sector bargaining. Specifically they wanted to remove health care as a bargaining topic, which wasn’t a bad idea for reasons I’ve explained in an earlier column.
But when they did that, Republican lawmakers did something stupid. They were afraid to take on unions representing police and firefighters, so they created a separate class for protective service employees and allowed them to continue to bargain for health insurance and other work conditions, while revoking those rights from all other public employees.
Now the Iowa State Education Association and other unions are asking how they can do that without violating Article 1, Section 6.
By creating a new super class of public employees, the new law relegates other public employees to second-class status, the unions argue.
Lawmakers can let this case wind its way through the courts for a couple of years while it creates hard feelings and racks up legal fees.
Or they can go back and fix it. The sooner, the better.