Same-Sex Marriage and Judicial Elections

Largely overlooked in the spate of reports on the recent election was the defeat in a retention election of David Baker, Michael Streit, and Marsha Ternus, three Justices on the Iowa Supreme Court.  They had previously joined the majority in ruling that Iowa’s ban on same sex-marriage violated the state’s equal protection guarantees.  As a result of that ruling, Iowa became the only state in the Midwest to allow same-sex marriage.  This was important not only for gay and lesbian couples in Iowa but also in nearby states.  A majority of same-sex marriages in Iowa during the past year involved couples from Illinois, Minnesota, and Wisconsin.

One key to the election results was the money that was spent in Iowa by national groups opposed to same-sex marriage, and Iowa opponents of same-sex marriage welcomed the spending and surely delighted in the Iowa returns.  Bob Vander Plaats, a leader of pro-removal campaign said, “It’s the people rising up, and having a voice for freedom, and holding an out-of-control court in check.”  

The claim that courts had become politicized and that this development had led to rulings in favor of same-sex marriage has been heard before.  When President George Bush called for an amendment to the United States Constitution banning same-sex marriage, he, too, claimed politicized judges were threatening to undermine the sacred institution of marriage.

But there’s an irony in these claims, at least as far as the Iowa retention election is concerned.  Those lobbying and spending in order to knock Justices Baker, Streit, and Ternus out of office admitted they were politically motivated.  They did not want gay men and lesbians to be married.  Those who stood for the rule of law, meanwhile, were the Justices.  In a joint statement issued the day after their defeat the three Justices said:  “Throughout our judicial service we endeavored to serve the people of Iowa by always adhering to the rule of law, making decisions fairly and impartially according to the law of Iowa, and faithfully upholding the Iowa Constitution.  We wish to thank all Iowans who voted to retain us.  Your support shows than many Iowans value fair and impartial courts.”

This Post Has 2 Comments

  1. Andrew Spillane

    Very interesting topic, Professor Papke. Trying to ignore the elephant in the room, i.e. to what extent judicial elections by popular vote hinders the impartiality for which we hope in our judges, I found these election results deeply unnerving. My discontentment with this election is not grounded of my personal views on same-sex marriage (which is to say that I really have taken a position yea or nay), but rather, I have a problem with what these elections might be suggesting about these three justices. In this regard, I don’t think my view is a novel one.

    One could suggest that we institutionally allow for a similar kind of democratic overruling of judges through the legislative process. A legislature can effectively overrule common law precedent or clarify the meaning of a statute if the courts get it wrong; after all, that is the main reason statutory precedent coming from the U.S. Supreme Court is nearly impossible to overturn except in rare cases. But the key difference is this: Legislatively overruling state supreme court decisions does not attack justices’ fitness to be judges in the first place. These elections seem to do just that.

  2. Nick Zales

    The point of this article is that judges who do what they are supposed to do will be punished by people claiming they believe in “freedom.” They don’t. They want a legal system that supports only their own personal points of view and denies others the same rights they demand for themselves. Those who voted these three out of office do not believe in the Constitution. They believe in a kind of fascism that allows for the elimination of any and all rights at the people’s whim. That is exactly the opposite of what the Constitution demands.

    The danger is, of course, that judges will not do their jobs and vote in ways to keep themselves in office. I believe in electing judges, appointed judges rarely stick their necks out to do what is right. But as long as people who vote remain ignorant and defiant against our system of government, this problem will continue.

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