NOM Strikes Again: Iowa Voters Throw Out Judges, Reject Their Constitution

Leading up to the election, it seemed as if this one might offer something of a reprieve from the flood of never-ending election-induced depression cycles for those of us concerned about LGBT equality. We knew that the House was probably going to turn crimson, and the Senate was looking questionable, but for the first time in years, no one was trying to deny us rights that we already didn’t have by writing it into a state constitution. I wasn’t quite delusional enough to assume that the tide had categorically turned, but it was nice to not have our equality up for a vote, for once.

Except it kind of was, indirectly, in Iowa.

Last year, the seven justices of the Iowa Supreme Court unanimously invalidated a state law limiting marriage to one man and one woman, determining that the law violated the Iowa Constitution. This is a thing that judges do, often: they look at laws and they look at the state or perhaps the federal constitution, and if the two are inconsistent, the constitution wins and the law must fall.

Shockingly, not everyone was thrilled with the outcome. This is also a fairly common reaction. With every court case, you have at least two opposing viewpoints — someone is going to leave not happy. But our judicial system is sound, and generally we have faith in it. The unhappy people go home to try again another day.

In this case, that meant the most recent election cycle.

Although the governor appoints Iowa Supreme Court justices with the assistance of a judicial selection committee, these justices are subject to retention elections — meaning that Iowa voters can remove justices. This process is known as “merit selection.” In theory, merit selection ensures that a justice does not remain on the bench if he or she is accepting bribes or has become incompetent or is simply not doing the work. In reality, until a week ago, no Iowa Supreme Court justice had been removed from office since this became the process in 1962. This election cycle offered voters a chance to rally against an unpopular interpretation of the state constitution. No one involved was even pretending otherwise.

NOM (National Organization for Marriage) and friends flooded the state, aggressively campaigning against the three justices up for retention this year. They were successful. All three justices were voted out; each needed a simple majority to maintain their respective positions, but only secured the support of about 45 percent of voters. Iowa will soon have three new Supreme Court justices.

This does not directly impact the status of marriage equality in Iowa. Getting rid of judges does not change the effectiveness of prior rulings. However, it may have significant implications for equality across the country, in that it sends a strong message to any judges who might be inclined to rule in a manner inconsistent with popular opinion. Presumably, most judges like their jobs; if keeping a desirable job depends on the approval of the majority, judges may be less willing to protect the rights of minorities.

Iowa is not the only place where these sorts of campaigns were launched — according to the New York Times, similarly situated state Supreme Court justices across the country were targeted for rulings on abortion, taxes, tort reform and health care. The difference, though, is that in Iowa the campaign worked. Against us, people will mobilize. Fantastic.

Those who support judicial elections claim that voter approval ensures that people have control over their judges and the system is more democratic than simple appointments; others have thoughtfully deconstructed these arguments. I’d encourage you to remember the last time you knew anything about the judges running for office. Perhaps you are all more informed than I, but the first time I saw the names of most judges running in my state was on the ballot, and at least 85 percent of the races were uncontested. Democracy in action?

As a practical matter, judicial elections give the majority control over the space where minority interests are to be protected. Our federal and state constitutions establish the fundamental rules for our governments; judges are tasked with interpreting these rules and ensuring that the government follows these rules. When the majority can threaten and remove judges because they dislike a judge’s interpretation of the rules, it is the minority who suffers.

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Jessica has written 15 articles for us.

13 Comments

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    Thank you for this. You make an excellent point – I wonder if Iowa voters will realize that they’ve just opened the floodgates to a never ending abuse of judicial elections for special interest gain. More than that, your point regarding the merit of judicial elections in general deserves a healthy discussion.

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    The removal of these judges by Iowans is certainly unfortunate, especially for those of us Iowans who took the time to actually read the decision and understand that their ruling was inevitable due to the weakness of the legislation that was overturned.

    Unfortunately, NOM and a few other local groups were able to convince enough voters that these “liberal” judges were a dangerous cabal of leftists (even though two of them were appointed by previous and now current Republican governor Terry Branstad) was going to endanger their rights even further.

    Fortunately, attempts to pass a constitutional ban on gay marriage will be fairly difficult. Iowa law requires that a constitutional amendment pass muster through two consecutive legislative sessions before it can be brought to the voters for ratification. This means that a constitutional amendment cannot hit a ballot until 2014 at the earliest (unless a special election is called in 2013).

    Polling done in June of this year indicated that 53% of Iowans favor granting marriage rights to gays and lesbians, if I had to guess, 2-3 years from now, that number will have grown at least 3-5%, meaning that the likelihood of them actually passing an amendment banning gay marriage gets more and more unlikely.

    As a lifelong Iowan, I am severely disappointed in the decision a majority of voters made on Nov. 2 and it is my sincere hope that we, as a state, will not ever insert rote discrimination into our constitution.

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    “if keeping a desirable job depends on the approval of the majority, judges may be less willing to protect the rights of minorities.” – this scares the shit out of me.

    i still don’t understand:
    1. What is NOM’s damage?
    2. Why are they still allowed to do what they do? I feel like every time I hear about something NOM pulled off, I feel depressed about the future of humanity and this country.
    3. Which brings me back to why we should start a religion with weird but strict rules and a really good bible-esque book so we can get money like the Mormons and win things.

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    “The smallest minority on earth is the individual. Those who deny individual rights cannot claim to be defenders of minorities.

    Individual rights are not subject to a public vote; a majority has no right to vote away the rights of a minority; the political function of rights is precisely to protect minorities from oppression by majorities (and the smallest minority on earth is the individual).”

    That is a quote by Ayn Rand.
    Oh my Reason, the world is crazy.

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    It seriously just baffles me how this STILL IS AN ISSUE. Like seriously. People are more open about gay stuff these days than ever before, and for the most part people are more tolerant (as in we aren’t being stoned to death, at least not everywhere =/) and yet we are still denied equal treatment to that of straight people? Can someone tell me why this is STILL happening, and why people are STILL encouraging this outright discrimination and hate? Seriously. WTF NOM.

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    It is time to go after the National Organization for Marriage in the same manner that civil rights advocates went after the Ku Klux Klan in the 1970s and 1980s: For conspiracy under the federal Racketeer-Influenced and Corrupt Organizations Act (RICO) to deprive gay and lesbian couples of their constitutionally protected freedom to marry — a freedom that the U.S. Supreme Court firmly established in 1967 when it struck down laws that barred interracial couples from marrying.

    Gay and lesbian couples effectively earned the right to marry in 2003 when the U.S. Supreme Court, in Lawrence v. Texas, fully decriminalized same-gender sexual relations by striking down the last remaining anti-sodomy statutes in 13 states.

    The practical effect of the Lawrence decision — which, ironically, conservative Supreme Court Justice Antonin Scalia warned in his bitter dissent — is that there is no longer any legal justification to continue to prohibit gay and lesbian couples from marrying and that laws that impose such a prohibition are as unconstitutional under the Fourteenth Amendment as the old racist laws that banned interracial marriages.

    It is, therefore, time to go after NOM for conspiracy to deprive gay and lesbian couples of their constitutional right to marry.

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