Iowa justices explain why they didn’t campaign to retain seats

BOSTON—Three Iowa state supreme court justices ousted by voters in 2010 for ruling that same-sex couples were due the same rights as other couples under the state constitution were honored May 7 with the prestigious JFK Profiles in Courage Award.

Caroline Kennedy presents JFK Profiles in Courage Award to former Iowa Supreme Court Justice Michael Streit. Photo credit: Chuck Colbert

BOSTON—Three Iowa state supreme court justices ousted by voters in 2010 for ruling that same-sex couples were due the same rights as other couples under the state constitution were honored May 7 with the prestigious JFK Profiles in Courage Award.
Caroline Kennedy, daughter of the late President John F. Kennedy, presented the awards to the justices in a ceremony at the JFK Library in Boston. In doing so, she noted, “There are few things in life more important than being able to marry and build a family with the person you love. This fundamental right should be available to all Americans, including gay and lesbian couples.”

Ms Kennedy said the three former justices—Chief Justice Marsha Ternus and Justices David Baker and Michael Streit—were selected for the award because “they were aware they might pay a price” for rendering the decision they did, “but they did not waiver.”

“They will say they were just doing their job,” said Kennedy. But in their case, she said, “just doing their job required a special kind of courage.”

The ruling came in 2009 in Varnum v. Brien, a lawsuit filed by Lambda Legal Defense on behalf of six same-sex couples who had been denied marriage licenses.

“The decision,” noted the JFK Library, “was the first unanimous high court opinion on marriage for same-sex couples, and it made Iowa the third state to legalize same-sex marriage. The justices were aware that their opinion might not enjoy support from a majority of the public, but the Court stressed in its opinion that its responsibility was ‘to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time.’”

The decision triggered a fierce political pushback from right-wing conservatives in the state and attracted Republican presidential hopefuls, such as Rick Santorum, to actively campaign for the ouster of the justices when an otherwise routine vote came up for renewal of the tenure on the bench, in November 2010. The result of that vote was the ouster of the three justices and a victory for those opposing equal rights for gays.

In accepting his award, Justice Streit noted that, five days after the court issued the Varnum decision, it received a letter from a former U.S. soldier, a veteran of World War II. The veteran said the decision convinced him that he had fought on the wrong side during World War II. And, in a sentence that provoked a gasp from the audience, the letter said, “Hitler treated homosexuals they way they should have been treated—in the gas chambers.”

The letter, said Streit, “satisfied me we were right” in the Varnum decision.

Justice Baker, the first to receive the award, told the audience that elected justices in some other states told him that they believed the court’s decision in Varnum was legally correct, “but that they could never have voted that way because they would lose their re-elections.”

Baker also explained why the three justices did not mount political campaigns during the retention vote to try and explain their decision and hold onto their seats. He said the three justices chose not to defend themselves because to do so would have politicized the judiciary.

“We were not going to endorse such a system for Iowa,” said Baker. Baker said he knew the retention vote was also aimed, not just at those three justices.

“It was meant to intimidate judges in courts across the nation,” said Baker.

Ternus echoed Baker’s remark that the justices knew before they issued the decision that they knew they could lose their jobs over it.

“But our only allegiance,” she said, “was a commitment to the rule of law.”

She expressed dismay about the trend toward “demonizing” of judges over various political issue.

“Calling judges ‘activists’ or ‘elite,’” she said, amounts to “bullying” and “adds nothing substantive to the debate about the important concerns of our time.”

Ternus, Baker, and Streit joined in the unanimous decision of the seven-member bench in April 2009, ruling that the Iowa constitution’s guarantee of equal protection applied to same-sex couples seeking marriage licenses. In the audience Monday were three of the other four justices who joined in the Varnum decision: Current Chief Justice Mark Cady and Justices David Wiggins and Daryl Hecht.

In an interview following the ceremony, Justice Streit said the justices received “a pretty good share” of hate mail after issuing the Varnum decision and the court removed personal information about the justices from the court’s website for their protection.

Chuck Colbert contributed to this report.

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