How Iowa has recalled landmark same-sex marriage ruling

[Editor's note: This article was first published on April 3, 2014, five years after the Varnum v. Brien decision that legalized same-sex marriage in Iowa.]

The unanimous Iowa Supreme Court ruling that legalized same-sex marriage in April 2009 had a profound effect on the ongoing movement for equality for gays and lesbians and on three of the justices who decided the case — and lost their jobs because of it.

When Chief Justice Marsha Ternus and Justices Michael Streit and David Baker faced a retention election in November 2010, they met a backlash-fueled campaign, funded in part by out-of-state interest groups. A combined three decades of experience on the Iowa Supreme Court ended in a single day.

They continued to stand up for judicial independence, as they did in 2012, when they received the prestigious John F. Kennedy Profile in Courage Award.

"We knew that our decision would be unpopular with many people, and we even knew in the back of our minds that we could lose our jobs because of our votes in that case," Ternus said in her acceptance speech. "But we took an oath of office in which we promised to uphold the Iowa Constitution without fear, favor or hope of reward, and that is what we did."

Before the arguments

David Baker, former justice: I knew the case was coming at the time I got appointed. Everybody knew it was out there. ... We all had these three-ring binders that were 6 inches thick. It was like 5,000 pages of things we had to read, review and prepare for. I remember sitting at my daughter's swim meets in college with the binder.

Marsha Ternus, former chief justice: We were aware of what the popular opinion was about same-sex marriage in Iowa, and in fact there had been demonstrations outside the Judicial Branch Building prior to the oral arguments in the case.

Arguments, Dec. 9, 2008

Michael Streit, former justice: The argument day itself was a big deal. The courtroom was full, and the theater down on the first floor was full. It was emotional. An hour is what it was set for, and it went longer than that. ... I think the attorneys did a great job in the case, but it's hard to argue the position when the only argument they have is the state interest in protecting procreation, which is pretty feeble. Why would you let old people get married over 50 or 60? Why would you let people get married if they don't intend to have children?

Baker: They essentially had the four bases. Child- rearing — of course that was a little difficult for them to say when we allow same-sex couples to adopt. Procreation. Tradition, I don't know is necessarily a decent reason. Tradition can simply mean that discrimination existed for a long time. And of course the elephant in the room, which was religion, which you can't use as a basis for this.

Streit: In all our cases ... we discuss the case after it's argued. So we go back into chambers and we start with the writing justice (Mark Cady) discussing what we all just saw. ... And then the way our group works is we progress around the table. ... By the time we're getting to Justice Appel I'm thinking, "This is going to be unanimous."

Baker: This was not Brown v. Board of Education where Earl Warren had to basically browbeat some of the Southern justices in order to have a unanimous decision. This truly was a unanimous decision.

Decision: April 3, 2009

Carlos Ball, law professor, Rutgers School of Law: The previous rulings by state supreme courts that sided with gay plaintiffs were highly fractured. ... In contrast, the Iowa Supreme Court, through Justice Cady's opinion in Varnum, spoke in one clear voice. The fact that not one justice sided with the government said a lot about the weakness of the government's case.

Mark Kende, constitutional law professor, Drake University Law School: It's one of the most impressive opinions I've read in Iowa, certainly, and even broader than that. It was written in a way that was designed to make the arguments clear but to also show some sympathy to those that don't agree and say why.

Carlos Moreno, former California Supreme Court justice, began his dissent in Strauss v. Horton, the case in 2009 that upheld Proposition 8, by quoting Varnum. It's one of the first times another court refers to the Iowa case: "The 'absolute equality of all' persons before the law (is) 'the very foundation principle of our government.'"

Ball: Those who have defended same-sex marriage bans in courts throughout the country since Varnum have had a very difficult time persuading judges that the government has a legitimate reason for denying gay men and lesbians the opportunity to marry the individuals of their choice.

After the ruling

Mark Cady, writer of the decision: In many ways, the public discourse following any court decision on such a major constitutional question of civil rights is what was expected, if not demanded, by our constitution. This time period is what ultimately gives shape to tomorrow's understanding, and can help differences of opinion to merge. This discourse is not new for Iowa, although I doubt it has ever been so strong.

One letter sent to the court five days after the decision: "I defended the likes of you — as an American soldier in WWII and Korea. I conclude I served the wrong side — Hitler treated Queers the way that they should be treated — in the gas chambers! You are bastards."

Streit: I made speeches to LGBT crowds and said, "We weren't on your side. We were in favor of equal protection." But with all the hate that I've seen since then come out, it's hard not to be on their side. But I'm not a judge anymore either, so I don't have to be above the fray.

Retention election

Baker: The backlash really kicked in about August before the election.

Ternus: A lot of money came in from these out-of-state organizations who opposed same-sex marriage, and they formed a local program called Iowa for Freedom. That program's mission, and this is from their website, was to send a message in Iowa and across the country that judges ignore the will of the people at their peril. So the focus was really on retribution against us for having ruled the way we did and to intimidate judges across the country. It struck a chord in voters who I think are inclined to have fears and to doubt government. ...

Baker: Under the rules governing judges, we have the ability when we know there is organized opposition to organize and finance campaign committees. ... But the three of us, we talked and we met, and we decided as a group we were not going to do that. Because to do so would have been for us to buy in to politicizing judicial elections.

Ternus: How would you feel, as a litigant, to appear in court and know that the opposing party's attorney gave money to the judge's re-election campaign and your attorney didn't? Is that the kind of system Iowans want?

Ouster, Nov. 2, 2010

Brian Brown, president, National Organization for Marriage: The fact that three judges lost their seats, that was an important part of the story. I do think people realized that if you had judicial retention elections, that people could stand up and say, "Enough is enough," and that is what they did. Unfortunately with federal judges, we don't have judicial retention elections.

Suzanne Goldberg, director, Center for Gender and Sexuality Law at Columbia University Law School: My sense is that the targeting and ouster of judges who ruled in favor of marriage equality was a serious, and perhaps embarrassing, loss for Iowa. Outside the state, the recall effort reinforced marriage equality advocates' commitment to justice, even knowing that justice sometimes comes at a high cost.

Another justice retained

Baker: I was very happy to see people stepping up (in 2012), not so much for Justice Wiggins as an individual, but for the process, and for the need for fair and impartial courts.

Streit: I'm perhaps a little more concerned about Cady, because he was the writer and he is chief now.

Chuck Hurley, vice president, the Family Leader: I can't see the future, but what I can tell you is our group will continue to care about things like marriage and about things like constitutional authority and abuses thereof, so I can't fathom that we would ever not speak up. But speaking up and mounting a several-hundred-thousand or million-dollar campaign are different things.

Brown: Obviously resources are limited. We're looking at where we can have the most effect in protecting marriage. If you have millions of dollars to spend in one of these races, it does have an effect.

Profile in Courage award

Caroline Kennedy, in her speech about the justices at the Profile in Courage ceremonies: They don't think they did anything special, they were just doing their job. But for public officials, just doing their job often demands a special kind of courage. Standing up for human rights requires courage. Serving the interest of all citizens, not just the majority, requires courage.

Ternus: The Profile in Courage award is important because it reassures Americans that public officials can do the right thing ... particularly now when we're so disappointed in government officials and there's such polarization, and there's such politicization of the judiciary. ... It's important to recognize that there are these underlying values of the rule of law and fair and impartial courts, and that there are judges who are committed to those principles. And those are principles that are consistent with our Founding Fathers' vision of how this government should work.

Baker: Actually, what is more vindicating to me is the recent rash of states (legalizing same-sex marriage). We were right; we were just ahead of our time.