Decision Puts Justices in National Cross-Hairs
Of all the judicial elections in 2009 and 2010, none was more jarring, and more important in its long-term impact, than the Iowa retention election.
Three Iowa justices were ousted by voters in the wake of a single decision, Varnum v. Brien, which legalized same-sex marriage in Iowa.
Chief Justice Marsha Ternus and Justices David Baker and Michael Streit faced a well-funded, well-organized campaign that shifted the retention debate from one about the justices’ character and qualifications to one about same-sex marriage and other hot-button social issues.
Iowa for Freedom and its affiliated national anti-gay marriage groups sponsored two negative TV ads attacking the justices for their votes to strike down Iowa’s ban on same-sex marriage. The ads sought to cast the judges as willing to “usurp the will of the voters,” and advocated for their removal. By implying that if the court could legalize same-sex marriage, other pillars of American life might be in peril, the ads cast a wide net that preyed on the fears of moderates and conservatives alike. One ad claimed that “none of the freedoms we hold dear are safe from judicial activism.”
The defeat of the three incumbents represented the first time in a quarter-century that multiple justices were defeated in a retention election over a controversial issue. (In 1986, death penalty rulings sparked the ouster of three California justices.)
While the initial ruling sparked wide public anger in Iowa, the marriage issue quickly became embroiled in national politics. According to reports, Republican presidential candidate Newt Gingrich arranged seed money to fund Iowa for Freedom, and national anti-gay groups including the National Organization for Marriage and the American Family Association provided most of the campaign’s nearly $1 million in funding.
The fall-out from Iowa’s retention election continues to be felt. After failing in a noisy bid to impeach the four other justices in the Varnum ruling, opponents of same-sex marriage have vowed to challenge their retention in 2012 and 2014. And Iowa’s merit selection system faced a failed legislative challenge in 2011.
More chillingly, the campaign was explicitly intended to send a warning to judges in all states, not just Iowa.
Bob Vander Plaats, a failed Iowa gubernatorial candidate who led the Vote No campaign, told his supporters, “We have ended 2010 by sending a strong message for freedom to the Iowa Supreme Court and to the entire nation that activist judges who seek to write their own law won’t be tolerated any longer.”7
Minnesota Congresswoman Michele Bachmann, like Gingrich a Republican presidential candidate looking for votes in Iowa’s 2012 caucuses, echoed these beliefs when she congratulated an audience in Iowa for their successful effort to oust the three justices. Repeatedly deriding judges as “black-robed masters,” Bachmann said, “You said enough is enough and sent them packing, and I’m very proud of what you’ve done.”8