The Journal of Gender, Race & Justice

Matt Hulstein, Student Writer, The Journal of Gender, Race & Justice

On November 2, 2010, Iowans voted to not retain its Supreme Court Justices Ternus, Baker, and Streit. By all accounts, these Justices were ousted in direct retaliation for their Varnum v. Brien[i] decision. That decision struck down Iowa Code § 595.2(1) which defined marriage as between a man and a woman[ii] as unconstitutional under the Iowa Equal Protection Clause, Article 1 § 6.[iii] The opinion, authored by Justice Cady who was not up for retention, explained in great detail that the statute could not withstand intermediate scrutiny because the government’s justifications for the same-sex requirement were either not existent or not sufficiently important.[iv] The decision was unanimous and can only be reversed by a constitutional amendment or by the court itself.

            Shortly after the decision was handed down, Bob Vander Plaats, a Sioux City businessman who was running for and eventually failed to secure the Republican nomination for governor, launched a group ironically called “Iowa for Freedom”[v] in an effort to oust the justices through their retention vote. The group, funded largely by outside money from groups such as Family Research Council, the National Organization for Marriage, and the American Family Association,[vi] saturated the airwaves with messages condemning the “activist judges.” Without ever referring to the court’s reasoning, Vander Plaats vowed that the Varnum decision not only threatened the institution of marriage but also private property rights, the right to educate children, and even the right to life.[vii] A counter group called Iowans for Fair and Impartial Courts stepped forward to defend the Justice and tout the impartiality of Iowa Courts. Among this group’s leaders was Attorney Dan Moore, a former Iowa Bar Association president who actually had worked as the treasurer and secretary for Vander Plaats during his run for governor. The justices decided to not directly campaign or raise funds, feeling that it would be inappropriate. Despite their best efforts, the counter-parts to Iowa for Freedom could not close the funding gap. On November 2, 2010, the justices were defeated, with approximately 55 percent of the vote against them.[viii]

            The legal community’s response has been somber. Some have expressed true concern for the integrity of the judicial system. Most notably, Erwin Chemerinksy said, “What is so disturbing about this is that it really might cause judges in the future to be less willing to protect minorities out of fear that they might be voted out of office….Something like this really does chill other judges.”[ix] Immediately after the vote, Iowa Law Prof. Whiston said, “The electorate just poured sugar down the gas tank of the judicial system, and it’s going to take a whole lot of work to keep there from being permanent damage.”[x] Other responses have not been as despairing. John Reed, a professor emeritus of law at the University of Michigan Law School, explained, “I think the frequency of this happening is, on the whole, relatively rare, and as tragic as it may be for the particular judges, it is something that is not the end of the judicial system, and we can move on.”[xi] Frank Carroll, the current Iowa State Bar Association President, agreed that the oust could be a blip given the case’s controversial subject matter but cautioned, “[I]f the next retention election has the same amount of political overtones and substantial campaign funds allocated to it, I would be very concerned about what that would do to the judicial system”[xii]

            Iowa Law Prof. Pettys summed up what seems apparent to all in the legal community: “I think if anything, these three justices will be regarded as examples of good judicial behavior. In other words, when they wrote this opinion, they knew it would be controversial, they knew they were coming up for election soon, they knew they could lose their jobs, and they did it anyway because they believe that is what the law required.”

            I will not editorialize to any great extent, because I feel the facts speak for themselves. Suffice it to say, I am deeply disappointed in Iowa. These justices had dedicated their professional lives to the service of Iowans, and we in turn ungratefully threw their years of service back in their face, declaring them “activist” and “immoral,” all because they were doing their jobs. Voting out a judge because you disagree with a legal decision is a misuse of the judicial retention system. This was a mistake, and although my faith in Iowans has diminished, I still hold hope that we are big enough to admit a mistake when we make one. This vote to oust the justices was a mistake. We owe them our respect for doing what was right, not only in the decision, but in its aftermath, and we owe them an apology. For what it is worth, as an Iowan I am sorry I did not do more in your support, but I don’t think we fully comprehended the viciousness of the campaign against you. In closing, when I think of Mr. Vander Plaats and his rampant misinformation campaign, I am reminded of Mr. Welch’s reproach of Sen. McCarthy: “Until this moment, I think I never really gauged your cruelty or your recklessness… You have done enough. Have you no sense of decency, Sir. At long last, have you left no sense of decency.”

[i] 763 N.W.2d 862 (Iowa 2009).

[ii] “[O]nly a marriage between a male and a female is valid.” (as cited from Varnum v. Brien).

[iii] This article 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.”

[iv] Varnum, 763 N.W.2d at 897- 905.

[v] www.iowaforfreedom.com.

[vi] Jason Hancock, Anti-retention groups have spent $700k in Iowa so far, The Iowa Independent, Oct. 25, 2010 (available at http://iowaindependent.com/46025/anti-retention-groups-have-spent-around-700k-in-iowa-so-far); A.G. Sulzenburger, Ouster of Iowan Judges Sends Signal to Bench, Nov. 3, 2010 (available at http://www.nytimes.com/2010/11/04/us/politics/04judges.html?_r=1).

[vii] Brett Heyworth, VanderPlaatz says activist court heading down a slippery slope will decide who lives, dies, Oct. 22, 2010 (available at http://www.siouxcityjournal.com/app/blogs/politically_speaking/?p=4655).

[viii] http://www.iowaelectionresults.gov/ (last visited Nov. 4, 2010).

[ix] A.G. Sulzenburger, Ouster of Iowan Judges Sends Signal to Bench, Nov. 3, 2010 (available at http://www.nytimes.com/2010/11/04/us/politics/04judges.html?_r=1).

[x] Hayley Bruce, Supreme Court justices involved in gay marriage ruling not retained, Daily Iowan, Nov. 3, 2010 (available at http://www.dailyiowan.com/2010/11/03/Metro/19821.html).

[xi] Hayley Bruce, Experts: ousting no threat to judicial independence, Daily Iowan, Nov. 4, 2010 (available at http://www.dailyiowan.com/2010/11/04/Metro/19858.html).

[xii] Id.