Gay marriage fight targeted Iowa judges, politicizing rulings on issue

By Krissah Thompson
Washington Post Staff Writer
Wednesday, November 3, 2010; 6:39 PM

The ouster of three judges in Iowa's normally low-key judicial elections marks another battle in the national fight over same-sex marriage and raises fresh concerns over the politicization of judicial elections.

Opponents of same-sex marriage had targeted the judges in an intense campaign to boot them off the state Supreme Court because of a unanimous ruling last year that legalized same-sex unions.

The successful campaign, which was funded to the tune of $700,000 by conservative groups both inside and outside the state, is reverberating across the country and echoes the conservative resurgence reflected in the midterm vote.

Tuesday's electorate was broadly opposed to same-sex marriage, with 54 percent of all voters against it, according to the national exit poll. In Iowa, the exit poll showed 57 percent against same-sex marriage and 38 percent in favor.

"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."

Under Iowa's electoral system, judges run unopposed but need to gain more yes votes than no votes to win another eight-year term. Each of the three judges received only about 46 percent support - making it the first time that Iowa Supreme Court justices had been rejected by voters, according to the Associated Press.

The outcome of the campaign has no direct effect on same-sex marriage law in the state, though social conservatives hope that the election of a Republican-dominated state legislature will bring a referendum on the ruling.

Supporters of gay rights in Iowa are anxious and saddened by the outcome, said Carolyn Jenison, executive director of One Iowa, which joined a coalition advocating for the retention of the judges. "What frustrates me the most as an Iowan is that out-of-state groups came in and flooded the TV and texts and robocalls and drowned out the voice of Iowans trying to counter them," she said.

Legal experts, who argue that it is wrong to punish judges for an unpopular legal decision, are also concerned. Adam Skaggs, counsel for the Democracy Program at New York University's Brennan Center for Justice, said most disturbing was the amount of money in the election that came in from out-of-state groups, including the National Organization for Marriage - which is based in New Jersey and declared marriage a "historic winner at the polls."

"Retention elections of this sort have not typically attracted this kind of money from out of state," Skaggs said. "There is the worry that the groups that were successful in this campaign will say this is a strategy we want to replicate in other states whenever judges make a decision we disagree with. Under our system we want judges deciding cases based on the law and the facts of a single case, not looking over their shoulders wondering if it going to unleash attack ads."

In response to the assertions about the role out-of-state money played in the campaign, Vander Plaats countered that though the money came from out of state, the move to fire the judges began in Iowa. The tough judicial campaign is simply a way of holding justices accountable, he said.

"They are saying we politicized the process. I believe they politicized the process when they usurped the will of the people," he said. "What we are doing is utilizing the process. It was an organic campaign."

In Iowa, judges are initially appointed by the governor from a pool of candidates rated on their merits by a committee. They are then reconfirmed by voters every few years - a provision included as a safety valve in case of gross misconduct.

The Iowa judges - Marsha K. Ternus, Michael J. Streit and David L. Baker - chose not to counter the campaign. After their defeat was announced, they released a joint statement thanking their supporters and saying: "We hope Iowans will continue to support Iowa's merit selection system for appointing judges. This system helps ensure that judges base their decisions on the law and the Constitution and nothing else."

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