Lest Ye Be Judged

Commentary on the judicial retention election
John B. Whiston
November 17, 2010

For the last few weeks, I have been talking with lots of lawyers and judges about the results of the judicial retention election. They are always stunned by the result, a vote of 54/46 to boot Justices Ternus, Streit and Baker. They say they are puzzled by an electorate that would so casually put the judicial system at risk for no good reason. They feel somehow betrayed that voters would ignore the pleadings of the profession not to take such a drastic step.

Granted the lawyers and judges I’ve talked to are generally from urban centers that voted to retain the justices and not from the infrared counties in far northwest Iowa. In Sioux County, for instance, 85% voted against retention. My small sample, however, seems representative; everyone has a story about talking to a law school friend in Clarinda or Independence who is equally baffled by the result. They really are convinced that the loss of the three justices will result in routine retention battles in the future–conservatives in Des Moines have already announced that they have targeted Justice David Wiggins in the 2012 election–and my friends are afraid that the $1.5 million spent on this campaign will be dwarfed in those future battles.

The politicization of the judicial system and big money domination of those politics are real threats that grab the attention of people who care deeply about justice. My acquaintances are most perplexed by how their friends and families could disregard dangers that seem so clear.

And all for no good reason. That is, no matter what the result in the retention election, the Iowa Supreme Court would not reverse its decision in Varnum. So it all seems inexplicable until we realize that the motivation of the campaign was not legal but, at its core, visceral.

Many Iowans were predictably upset by a decision which somehow validated same-sex relationships. For honest, deeply-felt religious reasons, they cast about for some way of registering their dissent. Politicians like Bob Vander Plaats and out of state advocacy groups like the National Association for Marriage poured money and organization onto that amorphous reaction. They offered an enticing story that struck out at immediate and visible symbols. At its heart, the story was retribution, scapegoating, spiteful and unwilling to consider the consequences of its actions. It was spray painting the opposing high school after a tough homecoming loss. It was pouring sugar in the gas tank of the unpopular kid.

These anti-retention spokesmen (and likely some of their voters) looked on their cause as one small part of a long political battle and were so focused on the end result that they did not much care that there would be collateral damage in their crusade. So, when I talk to my friends in the coming weeks, I will say that our work to preserve the independence of the judiciary will be fruitless until we engage with these anti-retention forces on their central issue–the Varnum decision, in which the Iowa Supreme Court unanimously upheld a ruling that the statute defining marriage only as a union between a man and a woman violated the equal protection clause in the Iowa constitution.

Here, perhaps, is where we made a strategic error in the past six months: In focusing on the judicial system and running a calm, good government, Iowa kind of campaign, we left the field to opponents who were willing to promote the most preposterous legal claims. “The Supreme Court should have sent it to the Legislature.” “Who gave the court the right to say something is unconstitutional?” “The Governor can issue an executive order stopping Varnum.” Ideas that would get zero credit on an 8th grade Civics test.

It is very surprising how few people have actually read Varnum. It is, quite frankly, a measured and middle of the road opinion. It involves quite routine legal principles about how Iowa’s unique equal protection guarantee is to be interpreted. The question the court had to answer was whether excluding same-sex couples from the institution of civil marriage was justified by an important governmental objective. In an extended opinion, the Supreme Court analyzed all the objectives proposed by the Polk County Recorder, the defendant and by the dozen or so friends of the court that filed briefs in support of the law limiting marriage to one man/one woman. Claims, for instance, that the law protected a traditional marriage, optimized the raising of children and promoted procreation were each examined closely. None, repeat none, held up to scrutiny.

This is not an unusual conclusion. In the past few months, three other courts in California, Massachusetts and Florida have decided important family issues for gay men and lesbians. Most of those judges–like Chief Justice Ternus and Justice Streit–received their first appointments from Republican governors. And most, like Ternus and Streit, are known for cautious, even conservative, decisions. Yet, in each case, those judges independently concluded that the disqualification of gay and lesbian individuals from marrying or adopting had no rational relationship to any legitimate governmental objective.

A real political debate about Varnum, of course, means a discussion about the moral core of this election: the rights of Iowa’s LGBT-identified community. And here, again, pro-retention advocates may have made the mistake of overestimating the pragmatism of most Iowans. Only now does it strike me as odd that no local or national gay-rights organization had any significant presence in this election. Perhaps this was a tactical decision that the electorate was not yet ready for the decision to be presented in such stark terms. No matter, we appear to be headed toward a long public debate about the place of LGBT-identified individuals in our state, a debate that will ultimately be determined by the more tolerant attitudes of younger Iowans.

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I find much to admire in the young people who worked so hard to retain the justices and who will have to work so much harder in coming years to accomplish their goal of eliminating discrimination against gays and lesbians. At the risk of sounding like a grumpy aging boomer, I want to say that I am not sure that the organizational strengths of the younger generation can compete against the opponents who have performed so successfully in the last few months. These politicians and organizations have shown they are quite capable of effectively organizing to exploit deeply felt religious beliefs and, truth be told, deeply felt prejudice.

Several months ago, Malcolm Gladwell wrote in The New Yorker about the limits of internet organizing. “The revolution will not be tweeted,” he observed, holding that while networking has its power, it often fails because it lacks direct human contact and formal structure.

Facebook is great for sharing photographs, but not so good for sharing the deeper emotional commitment–what Gladwell calls “strong tie” phenomena–that makes for real change.

Contrast this for a moment with how the retention opponents proceeded. The message according to Vander Plaats was repeated in Bible study groups, long-time Saturday morning coffee dates and across the back fence. All in person, where the depth of feeling, especially the feeling of fear, is directly communicated. “Reply All” is just not a reliable alternative to that form of strong tie organizing.

Yes, time and demographics favor the gay rights side but the debate will be emotional and likely full of the distortions used in the campaign against the justices. People who think that equal protection under the law means something will need to develop both a visceral style and a fuller argument.

In reading court decisions during the campaign I came upon one point in particular that I want to close with. One of the strongest arguments put forward by opponents of same-sex marriage is the proposition that children raised by same-sex parents are at risk. I see it regularly in publications from the Catholic Church. It resonates with our concerns for the most vulnerable among us and unfortunately with common prejudgments about the character of homosexuals. And the proposition is simply false.

The Varnum opinion and the other three cases mentioned above all discuss numerous recent scholarly studies about how children flourish. The unanimous verdict is that children raised by same-sex parents do just as well as those raised by opposite-sex parents. Opponents, even when they have unlimited resources as in California and Florida, have not been able to find a credible expert witness who will repeat the now-discredited prejudice. The prospect of swearing to tell the truth and being cross-examined in court must be just too much. Somehow this news got lost in the last election, but I hope that we will hear much about it in the debates to come.

In the end, I was disappointed by how Iowans treated these three justices, whether the electorate was acting out of spite or political calculation or sincere belief. In years to come, these judges will be recognized as having acted with courage, integrity and grace.

Already, I’ve seen a T-shirt around the law school that says, “After graduation, I want to go to work for the firm of Ternus, Baker and Streit.” I sense a resolution growing within me–and, I think, in my friends and colleagues–that the place of LGBT-identified individuals in our state will not be decided by a one-time event like a court decision or a retention election. Instead, it will be a long, painful process with a lot of hard work by young people, but the ultimate result, full civil rights for our LGBT neighbors, will reflect the honesty, tolerance and good sense of all Iowans.

John Whiston has been Clinical Professor of Law at the University of Iowa College of Law since 1994 and a lawyer in private practice in Montana for 10 years before that.