Written by Skeeter Sanders   

Iowa Voters Tossed Out Three Justices of the State Supreme Court Solely Because They Declared Unconstitutional a State Law That Barred Gay and Lesbian Couples From Marrying; Vote Sends a Clear Message That Anti-Gay Bias Trumps Gays' Constitutional Rights -- and Sets a Dangerous Precedent for Protecting the Rights of Other Minorities




(Posted 5:30 a.m. EST Tuesday, November 16, 2010)

By SKEETER SANDERS

Here we go again.

In yet another state, the voters sent a clear and unmistakable message on November 2: That gay and lesbian couples have no constitutional right to marry -- regardless of what the courts say to the contrary.

That message came loud and clear when voters in Iowa ousted three justices of the state Supreme Court who participated in Varnum v. Brien, the court's unanimous 2009 ruling that struck down as unconstitutional a state law that barred gay and lesbian couples from marrying.

Chief Justice Marsha Ternus and Associate Justices David Baker and Michael Streit were all denied reconfirmation with roughly 54 percent voters saying "no" and 46 percent saying "yes."

Under Iowa law, the governor appoints justices to the state Supreme Court, with the assistance of a judicial selection committee. Each justice, however, is subject to a retention election five years after his or her appointment.

Under normal circumstances, a Supreme Court justice does not remain on the bench if he or she is accepting bribes or has become incompetent or is simply not doing his or her job. But the circumstances in which Justices Ternus, Baker and Steit were ousted were anything but normal.

JUSTICES WERE DUTY-BOUND TO UPHOLD RIGHTS GUARANTEED BY IOWA CONSTITUTION

The justices, acting on an appeal of a lower court decision, ruled unanimously on April 3, 2009 that the state law defining marriage exclusively as a union between a man and a woman violated the equal-protection clause of the Iowa Constitution.

Article I, Section 6 of the Iowa Constitution states quite explicitly that "All laws of a general nature shall have a uniform operation; the [Iowa] General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens."

The court also rejected civil unions, declaring that "A new distinction based on sexual orientation would be equally suspect and difficult to square with the fundamental principles of equal protection embodied in our Constitution."

The justices made it clear they were duty-bound by their oath of office to uphold the Iowa Constitution -- and the rights of individuals that it guarantees. "Our responsibility . . . is 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."

APPEAL TO U.S. COURTS DEEMED 'TOO RISKY' IN FACE OF FEDERAL LAWSUITS AGAINST PROP. 8, DOMA

Yet despite the clear and unmistakable language of the Iowa Constitution's equal-protection clause, opponents of same-gender marriage adamantly refused to accept the court's decision -- and vowed an all-out campaign to reimpose the ban.

An appeal to the federal courts was not in the cards, since the justices based their ruling on the Iowa Constitution and -- in the absence of a direct conflict with the U.S. Constitution -- the federal courts lacked the jurisdiction to intervene.

An appeal also carried with it a high risk of losing, as California's voter-approved Proposition 8 -- which amended the California Constitution to ban same-gender marriage -- is presently under challenge in federal court on the grounds that it violates the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution.

There are also at least four lawsuits now pending in the federal courts -- two of them filed just last week -- challenging the constitutionality of the federal Defense of Marriage Act of 1996, which denies federal recognition of same-gender marriages that are legal in six states and the District of Columbia and bars federal spousal benefits to legally married gay and lesbian couples.

RIGHT-WING ANTI-GAY GROUPS FROM OUTSIDE IOWA TARGET JUSTICES

Instead of filing an appeal, opponents of same-gender marriage launched a drive to oust the justices solely because of their ruling in the Varnum case, rallying voters to lash out against an interpretation of the state Constitution that was deeply unpopular with conservatives.

In the process, Iowa Constitution itself -- that the justices were duty-bound to uphold -- came under attack.

The right-wing National Organization for Marriage and other anti-gay groups from outside the state launched a multi-million-dollar campaign to oust Chief Justice Ternus and Associate Justices Baker and Streit, whose five-year terms were up for retention votes.

The campaign quickly became a cause celebre for the Religious Right, whose utter contempt toward the idea of two men or two women who love each other getting married is so strong that they've taken a Constitution-be-damned attitude in an all-out jihad to make marriage the exclusive province of opposite-gender couples.

Not only did they target the justices for ouster, they also campaigned hard to get conservative, anti-gay Republicans elected to the Iowa Legislature, with the ultimate goal of amending the Iowa Constitution to restrict marriage to opposite-gender couples. In the end, the Republicans took control of the Iowa House, but the Democrats kept control of the Iowa Senate, making passage of a marriage amendment to the state constitution -- a very cumbersome and difficult process to begin with -- highly unlikely.

OUSTER VOTE SETS DANGEROUS PRECEDENT FOR PROTECTING RIGHTS OF ALL MINORITIES

While the removal of the three Iowa Supreme Court justices over their ruling in the Varnum case cannot, on its own, overturn the decision, it nonetheless sets a dangerous precedent for the protection of the constitutional rights of not only gays, but of all minorities at the state level. Imagine if there had been retention votes to oust the judges a generation ago had they declared that a ban on interracial marriages was unconstitutional -- as the California Supreme Court did in Perez v. Sharp nearly 20 years before the U.S. Supreme Court did so in 1967.

Unlike federal judges, who are appointed for life and can be removed only by impeachment by Congress for clear malfeasance and/or crimes, state judges are subject to retention votes by the electorate and county and municipal judges are directly elected to the bench. This raises the specter of undue political influence that can run directly counter to judges' sworn duty to uphold the U.S. Constitution and the constitution of their home state.

The Iowa retention vote also raises the specter of state judges across the country being targeted for ouster for daring to uphold the constitutional rights of anyone -- let alone gays and lesbians. It sends an unmistakable message to any judges who might be inclined to rule in a manner that is consistent with the Constitution, but inconsistent with the vagaries of popular opinion.

This is unacceptable and dangerous. The U.S. Supreme Court declared in its 1996 Romer v. Evans decision that no state can deliberately deny to its gay and lesbian residents the constitutional and civil rights enjoyed by everyone else, solely because they are gay.

In that case, the high court struck down an amendment to the Colorado constitution that would have prevented the Legislature or any city, town or county in the state from passing legislation to protect gays and lesbians from discrimination. "The amendment imposes a special disability upon [gay and lesbian] persons alone," Justice Anthony Kennedy wrote for the court. "Homosexuals are forbidden [under the amendment] the safeguards that others enjoy or may seek without constraint. . .This the state cannot do."

DO GAYS HAVE A CONSTITUTIONAL RIGHT TO MARRY? RECENT COURT PRECEDENTS STRONGLY SUGGEST YES

While the question of whether gay and lesbian couples have a constitutional right to marry under the Fourteenth Amendment is one that has yet to be addressed by the U.S. Supreme Court, past rulings by the nation's highest tribunal strongly suggest -- and this column strongly asserts -- that they do.

The freedom of two single, mature adults who deeply love one another to marry is a freedom that the U.S. Supreme Court declared more than four decades ago is guaranteed by the Equal Protection Clause of the Fourteenth Amendment, when the justices, in Loving v. Virginia, unanimously struck down laws in 16 states -- all of them in the South -- that barred interracial couples from marrying.

Writing for the court, then-Chief Justice Earl Warren declared, "The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Under our Constitution, the freedom to marry -- or not marry -- a person of another race resides with the individual and cannot be infringed by the state."

Gay and lesbian couples, in the opinion of this column, effectively earned to right to marry when the Supreme Court, in Lawrence v. Texas, fully decriminalized same-gender sexual relations in 2003 by striking down the last remaining anti-sodomy laws on the books in 13 states.

Although the court's six-justice majority made it clear that its decision in the Lawrence did not directly address the issue of same-gender marriage, Associate Justice Antonin Scalia, in a bitter dissenting opinion, wrote that the ruling cast into doubt the constitutionality of laws that outlaw same-gender marriage.

"If moral disapprobation of homosexual conduct is 'no legitimate state interest' for purposes of proscribing that conduct," Scalia wrote, "what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising 'the liberty protected by the Constitution?' Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry."

Between past precedents in Loving, Romer and Lawrence and the pending challenges in federal court to California's anti-gay Proposition 8 and DOMA, it's only a matter of time when the U.S. Supreme Court will have the final word on whether gay and lesbian couples have the same Fourteenth Amendment constitutional right to marry that interracial and interfaith couples have.

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Copyright 2010, Skeeter Sanders. All rights reserved.