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Iowa justices who struck down same-sex marriage ban voted out

In 2009, by a unanimous 7-0 ruling, the Iowa Supreme Court ruled that the existing state ban on same-sex marriage violated the equal protection cause of the state Constitution. Thousands of gay couples, including many from neighboring states, have married there since. Tuesday was the first chance that gay marriage opponents have had to express how they feel about it.

In Iowa, judges who come up for election do not face an opponent, but unless a majority of the voters vote to retain the judges, they lose their seat. Since this “merit/retention” system was adopted in Iowa in 1962, no Iowa Supreme Court justices had ever lost their seat in such a “retention” election. On Tuesday, three of the seven justices were on the ballot, including the chief justice. The election was clearly all about the marriage issue. About 46 percent of Iowa voters voted to retain the three, so they will all lose their seats at the end of the year. The governor will appoint replacements.

Outside anti-gay-marriage groups spent an estimated $1 million encouraging the dumping of the three justices. The justices chose not to raise any money or campaign, but other groups campaigned on their behalf, mostly on the argument that the politicization of judicial elections is a bad thing and that it would be especially dangerous to set the precedent of removing judges for one unpopular decision.

To the victors, it was a case of standing up for democracy and for allowing the people of the state to hold ultimate control over state laws.

“It was a victory for freedom, a victory for liberty,” said Bob Vander Plaats, the former Republican gubernatorial candidate and Sioux City businessman who started the push to oust the justices. “If we allow courts to make our law, to amend our law and amend our Constitution, you have tyranny. The people of Iowa were very upset that they never had their voice heard on this issue.”

Comments (9)

  1. Submitted by Thomas Swift on 11/04/2010 - 09:35 am.

    It will be interesting to see if the people’s ire is still white hot when the next four come up for re-consideration.

    My guess is, yes, it will be.

  2. Submitted by John E Iacono on 11/04/2010 - 10:14 am.

    If put to a citizen vote in MN the up/down margins would be at least as strong.

  3. Submitted by Paul Brandon on 11/04/2010 - 11:29 am.

    So much for the separation of powers and the rule of law.
    Justices are supposed to decide on the basis of what the law says (which they did), not on the basis of popular sentiment.
    If people do not like the law, they can elect representatives who will change it, and the justices will THEN be obliged to follow it as long as it is constitutionally acceptable.
    An Alien and Sedition Act would not stand, no matter how many people voted for it. That would require a repeal of the first amendment.

  4. Submitted by Joe Schweigert on 11/04/2010 - 02:28 pm.

    I don’t quite understand this, as the whole idea of the courts is to protect the rights of minorities from getting decided by the votes of the majority? I am no student of law, however, maybe it really is this unfair.

    I, for one, consider myself lucky that a large majority of people different from me cannot vote to decide what i can do with my life…yet.

  5. Submitted by Bernice Vetsch on 11/04/2010 - 04:31 pm.

    Please see Jeff Severns Guntzel’s article on Chief Justice Gildea and my comment (#6) above.

    The NY Times warned in two September editorials (Fair Courts at Risk, 09/09/2010, and Fair Courts in the Crossfire, 09/29/2010) of a national effort on the part of those who would politicize the judiciary until it reflected their religious fundamentalism and/or strict constitutional constructionism.

    In Minnesota, four such candidates had the endorsement of both the Republican Party and a group called Justice in Minnesota that seeks open elections (instead of retention elections) in which candidates could raise unlimited amounts of cash with which to subtly advertise their positions on hot-button issues and to smear their opponents. One religious candidate, Dan Griffith, says at his website, “We can win over the Executive and Legislative branches and still lose because the Judiciary can overturn the other two.”

    Only the StarTribune has discussed this issue (rather politely, but it did endorse the incumbent opponents of the relevant four).

    I believe the Center for Media and Democracy has written on how this attack on fair courts is playing out in other states. The potential for damage is huge, as we have seen from the Supreme Court’s Citizens corporatist Citizens United decision.

  6. Submitted by Ray Schoch on 11/04/2010 - 04:39 pm.

    Mr. Swift MAY be right – we’ll see – and Mr. Iacono MAY be right as well, but their opinions on this matter ought to be irrelevant, even if they were Iowa residents. Should they be correct, it says a lot – none of it positive – about the majority of Iowans.

    The “tyranny” that Mr. Vander Plaats seems so afraid of is one he intends to impose himself. “Rights” are not, were never intended to be by the founders, and frankly, cannot be allowed to be, subject to popular vote. If they are subject to popular vote, they’re not “rights” at all.

    “Victory for freedom, a victory for liberty?”

    Hogwash – a substance an Iowan would surely understand.

    If it’s anything, it’s a victory for hysteria and bigotry. Not only is it NOT “tyranny,” it’s the JOB of the courts to decide what’s constitutional and what’s not constitutional. Those questions are not the purview of the general public, who are neither lawyers nor judges nor constitutional scholars. Their own constitution gives that authority to the judges on the state Supreme Court. Rarely will we find a better, more persuasive case, for making judicial appointments rather than having judges elected. When law becomes a popularity contest, society disintegrates. People who like to think of themselves as “conservative” ought to keep that in mind.

  7. Submitted by Richard Schulze on 11/05/2010 - 10:10 am.

    Iowa has a right to their personal opinion regarding gay marriage. But, their particular reading the law would be a fine justification for social policy if we lived under a theocracy. Happily we do not.

    Christians worship a God who was condemned by the secular authorities, religious elite and his kinsfolk, had a tree placed on his back, was forced to carry it, parched, starved, stabbed, stigmatized and strung up. Throwing a hissy because lawyers and prelates fail to congratulate us on our righteousness is sorry and small.

    It reminds me of a conversation I once had with the senior pastor at my old church. He told me “Rich, these are our brothers and sisters. We love them and pray for them, but they have shrunken souls and we don’t wait for them.”

    I think of that whenever I hear the religious right, conservative and the homophobes of this world, when they try to turn every sensible thing into a personal insult.

    What I find convincing is the point that the 14th amendment provides for equal protection under the law, that states provide protection under the law through marriage and that state governments, therefore, may not provide unequally for marriage without a compelling interest in doing so, which doesn’t exist.

    I could not agree more with Ray Schoch and his words:

    //it’s the JOB of the courts to decide what’s constitutional and what’s not constitutional. Those questions are not the purview of the general public, who are neither lawyers nor judges nor constitutional scholars.//

    (on a personal note, I spent a yr in Thornton and a yr in Aurora in the early 90’s. A Great state Ray. I see why you speak fondly of it.)

  8. Submitted by Bernice Vetsch on 11/05/2010 - 02:27 pm.

    Addendum to #5 —

    The research referred to in the NY Times editorials and other media, including the November 5 Democracy Now program, was performed by the Brennan Center for Justice.

    We have seen only the beginning of a nationwide effort to reduce the courts to an institution paralyzed by public opinion and corporate money spent on elections.

    What does the legal profession think about this?

  9. Submitted by Neal Krasnoff on 11/24/2010 - 10:29 pm.

    Marriage was *never* defined as a union of two persons of the same sex. The Iowa Supreme Court disregarded their own state constitution and the basis of our civil society – a Judeo-Christian cultural hybrid.

    It is not in the job description of a state supreme court – or any court – to issue edicts on social policy when the legislative intent is clear and with the consent of the governed.

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