Anyone who counted out the influence and power of the National Organization for Marriage should think again. On Tuesday, three state Supreme Court justices in Iowa found themselves out of jobs after voters opted not to send them back to Des Moines for another term. This is the first time in Iowa history that voters have fired justices from the Supreme Court.
And what was their crime? Voting with the unanimous majority in Varnum v. Brien to uphold a lower court’s ruling that the state’s limitation of marriage to only between a man and a woman violated the equal protection clause of the Iowa Constitution. This ruling instituted marriage equality in Iowa in 2009, making the state one of only five states in the nation (plus the District of Columbia) that allow for full marriage rights for all couples. As reported in the New York Times, this vote was intended to send a message nationwide:
Leaders of the recall campaign said the results should be a warning to judges elsewhere.
“I think it will send a message across the country that the power resides with the people,” said Bob Vander Plaats, an unsuccessful Republican candidate for governor who led the campaign. “It’s we the people, not we the courts.”
The campaign to remove the three justices at the ballot box was heavily supported by the National Organization for Marriage and the American Family Association. The Des Moines Register reports that over $650,000 from these and other groups was spent on the campaign to remove the three justices.
As for the justices themselves, they saw something nefarious afoot. From the Times:
The judges declined requests for interviews but released a statement that decried what they called “an unprecedented attack by out-of-state special interest groups.” The statement defended the system for selecting judges but offered what a veiled warning about populist impulses to remake the judiciary: “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.”
Judicial retention elections are meant to serve as a democratic stamp of approval on the work of judges. For example, in Iowa the justices do not run contested campaigns; voters are merely asked on election day if they approve of retaining the justices in question, and more than fifty percent must vote yes for the judge to be retained. Justices usually do not campaign to retain their own seats, and receiving less than half the vote is rare. By the very nature of the judicial system, justices are likely to rule on controversial issues; with retention elections there is a great deal of risk that the work of the justices will be politicized. This fear was expressed by Joseph R. Grodin, a law professor and former California Supreme Court justice who was voted out in 1986 after a campaign asserting that he was soft on the death penalty. He told the New York Times:
Obviously it has an impact on the independence of judges and how they think of their role — I think that’s demonstrable…But more than that…I think the damage is not on judges, but that courts will come to be seen and judges will come to be seen as simply legislators with robes.
And if you look at the National Organization for Marriage’s victory statement about the Iowa elections, released yesterday, it is clear that they do desire to politicize the work of the bench. From the statement:
“The victories we have achieved this election are truly historic and stunning,” said Brian Brown, president of the National Organization for Marriage (NOM). “First and foremost, we wanted to defeat the judges in Iowa who had usurped the will of the people and imposed gay marriage in that state. The three judges were overwhelmingly rejected, sending a powerful message to any judge who thinks they can impose gay marriage by judicial fiat against the wishes of the people. We thank Iowa for Freedom, the American Family Association, and the Campaign for Working Families for working together to hold these judges accountable.”
If Iowa judges are limited to making rulings that are only supported by the majority of Iowans, then obviously the power of the judiciary in Iowa to defend the State Constitution would be completely neutralized. Why bother having a judicial branch with the power of examining constitutional questions at all? Of course, I strongly suspect that the language of direct democracy is merely what the NOM finds convenient in making its argument against marriage equality. As the struggle to defend marriage equality continues, arguments against it will evolve, especially in light of the fact that support for marriage equality continues to increase across the United States.
In the meantime, expelling the justices from Des Moines does not change the fact that marriage equality remains in effect in Iowa. But it could send a chilling national message that the Religious Right will pour resources into campaigns around the nation opposing other justices who make rulings perceived to be too friendly to LGBT rights, therefore staying the gavel of justices who want to side with, well, justice. This is the most pernicious effect of Tuesday’s judicial retention election in Iowa, and it could have national consequences. But the lesson is learned: in future elections of this nature, outside organizations on the side of marriage equality will have to get down in the mud a little bit too, spend some money, and work to defend the judges who rule in favor of equal rights under the law for all.