Pro-Equality Judges Booted in Iowa

Three Iowa State Supreme Court justices have been booted after being targeted by anti-gay groups for their finding last year that a law barring marriage equality for gay and lesbian families was in violation of the state constitution.

The justices' finding was unanimous, but only three of the justices--Chief Justice Marsha Ternus, David Baker, and Michael Streit--were up for a retention vote this year. Anti-gay group the National Organization for Marriage (NOM) had vowed to see the justices removed, and predicted that the justices' ouster would serve as a warning to other judges around the nation. NOM and other out of state interests poured at least $1 million into Iowa in the effort to unseat the justices, while groups supporting the justices raised $200,000. The next retention vote affecting a Supreme Court justice will take place in 2012, when David Wiggins' term expires; the remaining three justices, Brent Appel, Mark Cady, and Daryl Hecht, will face retention votes in 2016.

Local anti-gay activists also played a part. Bob Vander Plaats, a former GOP candidate for the office of governor in Iowa, was a leader in the effort to get the justices voted out. Vander Plaats created a group, Iowans for Freedom, to boot the justices. As the returns were tallied, Vander Plaats hailed the results, saying, "The people of Iowa stood up in record numbers and sent a message ... that it is 'We the people,' not 'We the courts,' " reported local newspaper the Des Moines Register on Nov. 3.

The election day result did not reverse the justices' decision, and marriage equality is still legal in the state, but Vander Plaats vowed to put pressure on incoming Republican governor Terry Branstad to put the rights of Iowa's gay and lesbian families before voters in a Proposition 8-style referendum, the Associated Press reported on Nov. 3. Branstad has voiced support for the idea of putting marriage equality up to a popular vote. The state's Democratic lawmakers had said they would not allow the issue to be put up for a vote, but Republicans were poised to take control of the Iowa House, having won at least 56 seats out of 100 in the Nov. 2 elections.

Local efforts to support the justices also coalesced in the months leading up to the election, with the justices' defenders saying that the judicial system should be free of the influence of politics. "What I want Iowans to know is that our courtrooms need to be the safest place for parties to go to work out their differences and disputes," said Dan Moore, co-chair of Fair Courts For Us. "They need to know courts will be fair and impartial and decisions won't be based on fear and popularity."

Judges in Iowa are not voted into office, but they face retention votes at the end of their eight-year terms. Ordinarily, the retention vote generates little controversy, and this is the first time that justices on the State Supreme Court have been removed through the retention vote, which began in 1962. The three justices who have been voted off the bench will leave at year's end, the AP reported, and the court will continue with the four remaining justices until new appointees are sworn in.

Anti-gay activists have suggested putting appointees through a confirmation process by state lawmakers, but in a statement the three departing justices called for the appointment process to remain unchanged. "This system helps ensure that judges base their decisions on the law and the constitution and nothing else," the departing justices said in the statement. "Ultimately, however, the preservation of our state's fair and impartial courts will require more than the integrity and fortitude of individual judges, it will require the steadfast support of the people."

But some observers said that the damage had already been done. "In the end, the aggressive campaign to misuse the judicial retention vote, funded by out-of-state special interests, has succeeded," said Allan Vestal, the dean of Drake University Law School. "The loss of these three justices is most unfortunate, and the damage to our judicial system and the merit selection of judges will take much to repair."

In the months leading up to the vote, the targeting of the three justices raised hackles among critics of the system, currently practiced in 20 states, that requires judges to court voters for their positions on the bench. Former United States Supreme Court justice Sandra Day O'Connor is one such critic. So passionate is the 80-year-old O'Connor about the issue that she serves as the chair for the O'Connor Judicial Selection Initiative, a group dedicated to reforming judicial systems in places like Iowa where worry about elections threatens to compromise judicial integrity by turning jurists into what O'Connor has called "politicians in robes."

Not All Pro-Equality Judges Ousted

Though all three of the Supreme Court justices who faced retention votes were ousted, other pro-equality judges facing retention votes kept their seats, including Judge Robert Hanson, who ruled in favor of six same-sex families who had challenged the anti-gay law. "I'm very, very thankful for the support [of the voters], and for their apparent appreciation of the proper functions of the judiciary," Hanson told the media.

Public perceptions of what the justices had actually done seemingly helped to sway the vote against them. One voter, Bernie Noel, told the press that the judges had "change[d] the constitution" and in so doing had "overstepped their bounds." The court's ruling was that the law barring gay and lesbian families from marrying had violated the Iowa constitution's guarantee of equal protection.

Another voter, Chris Keller, said that he supported the judges because their interpretation of the constitution had been correct. The issue of whether there should be a ballot initiative on changing the Iowa constitution, Keller noted, is not up to the state's judiciary. "It's not the justices' responsibility to let the people vote," Keller told the media. "It's the lawmakers' responsibility, and they chose not to do that. Legally, the court's ruling was the right decision."

"Nobody should be above recall," former attorney general Evan Hultman said. Hultman had been active in implementing the retention vote in 1962, reported local newspaper the Cedar Falls Times. "In the beginning, there was a man and a woman and they were created for the propagation of life. And I have no issue with gay men or gay women living their lives the way they wish to, but I don't believe that they should be able to receive the rights and blessings of marriage. The court took it out of the hands of the legislature and took it away from the people."

Carolyn Jenison of pro-equality group One Iowa sent out an email message saying that the defeat of the justices was the result of "a perfect storm of electoral discontent and out-of-state special interest money. In addition, many of our pro-equality allies from Governor Culver to statehouse candidates lost their seats due to an anti-incumbent mood that swept the nation." Added Jenison, "We thank them for their distinguished service and we look forward to working with our newly elected legislature and Governor in the weeks and months ahead.

"While the full implications of these election results remain to be seen, one thing remains the same," Jenison continued. "The freedom to marry in Iowa remains intact. In the months and weeks ahead we can expect renewed attempts to overturn the freedom to marry and write discrimination into the Iowa Constitution. It will take a concerted and collective effort on the part of pro-equality Iowans to respond to these attacks and defend on our liberties." Added Jenison, "Together, we will protect marriage equality and preserve Iowa's long tradition of equal rights for all."

Even as anti-gay groups celebrated the result nationally, pro-equality organizations vowed to step up efforts to protect the Iowa constitution, denouncing NOM especially for that group's efforts in unseating the justices.

"By their own admission, NOM's Iowa strategy was about sending a warning shot to judges nationwide," Joe Solmonese, the president of the Human Rights Campaign, said. "NOM and its secret donors will target judges around the country if they rule in favor of marriage equality and will foster an anti-gay, hostile environment in the process."

"Having seen its extremist agenda increasingly rejected by the courts and the American people, it is telling that NOM has now settled on a strategy of evading tax and election laws and trying to intimidate judges," said Rick Jacobs, chairman of the California-based pro-equality group the Courage Campaign. "These are the tactics one might expect from Al Capone, not a credible political organization."

A Nov. 3 Courage Campaign press release decried NOM, pointing to the group's alleged infractions of election laws in multiple states. "Prior to its involvement in this election, NOM received a strong warning from Iowa's ethics agency for evading campaign laws," the statement said. "During a 2009 special election in the state, NOM told supporters they could contribute to its Iowa campaign efforts secretly--without disclosing their names. Iowa law requires disclosure of contributors to political campaigns.

"NOM is also fighting campaign finance laws in New York, Washington, Rhode Island, California and Maine, where it remains under investigation by the Maine Ethics Commission for failing to register with the state as a ballot question committee and refusing to disclose the donors to its campaign to overturn Maine's marriage equality law in 2009," the release continued.