Judicial Retention and Same-Sex Marriage: An Informed Vote on the Issue

Last year's Iowa Supreme Court decision in Varnum v. Brien, sparked one of the most intense political storms that the State of Iowa has ever seen. The Twitter version of the ruling is that the equal protection clause of the Iowa Constitution prohibited the enforcement of a law that granted a privilege or right (civil marriage) to one group of citizens (opposite-sex partners) while specifically making it unavailable to another group of citizens (same-sex partners).

The decision has polarized many within the community. While there are a number of positions and arguments that have arisen throughout this intense debate, the spotlight is now focused squarely on the Iowa Supreme Court Justices that are up for retention. This election, Chief Justice Ternus, Justice Baker and Justice Streit are the members of the Iowa Supreme Court up for a retention vote. Groups have been formed with the sole purpose of campaigning to unseat the Justices, claiming that the decision amounted to "judicial activism" impeding on religious and moral values (See Iowa for Freedom). Other groups have been formed urging the retention of the Justices stressing that in order to be effective the courts must be free from political influence and must rule based upon the law and constitution of the State of Iowa and United States of America. (See Iowans for Fair and Impartial Courts).

The purpose of this article is not to take a position one way or the other on same-sex marriage. It is simply to explain the role of the courts in our system of government and to further clarify what the Iowa Supreme Court ruling said and did not say. An individual's vote is personal based upon their beliefs and convictions but should also be informed. The purpose of this article is to inform.

Role of the Courts
The government of the State of Iowa, just like that of the United States of America, is divided into three separate branches, each one having a specific and vital role. This is commonly referred to as "separation of powers." The purpose behind the separation of powers is to ensure that one branch of government does not overreach and ultimately violate the rights of the citizens of the state. The three branches are: legislative, executive and judicial. The legislative branch creates the laws; the executive branch enforces the laws; and the judicial branch is charged with the task of interpreting the laws. When interpreting the laws, the judicial branch is governed by the rule that the constitution is the supreme law of the land and no law may be passed that violates the constitution by infringing upon individual rights that are set forth in the constitution. Any law inconsistent or contrary to the Iowa Constitution is considered void and unenforceable.

All members of the judicial branch are charged with interpreting the laws and ultimately protecting the constitutional rights of all individuals in our state. Conflicts in opinions and interpretations of the laws and constitution are resolved in a court of law, presided over by members of the judicial branch. There is no other place for these issues to be legally resolved once and for all. The issue or conflict must be raised at the earliest possible opportunity, and the first judge to hear the issue must rule and decide the case by applying the legal principles and precedent available to that judge at that time. This means that the issues which often times ignite debate must always be first presented to a lower level judge, be it a magistrate, district associate judge or district court judge. That judge, when presented with the conflict has a legal obligation to make a final ruling on the issue so that if desired, the losing party may appeal that decision to a higher court. If the judge does not make a decision, the judge actually violates the constitution and our system of government fails under those circumstances.

Example: The general assembly (legislative branch) passes a law saying that it was illegal to practice or to be a member of a particular religion. A person affected by this law could raise the issue in court and request a judge to rule that the law prohibiting their practice of that religion violates the Iowa Constitution. Arguably, the constitutional provision violated in this example would be freedom of religion as protected by Article 1 Section 3 of the Iowa Constitution. The first judge to hear the case would have to make a ruling and the losing party would then have the right to appeal it to a higher court. Ultimately the case would come before the Iowa Supreme Court who would then be required to decide the issue, one way or the other. Their ruling would be final if the case involved an interpretation of the Iowa Constitution.

The Opinion
In Varnum v. Brien, the Iowa Supreme Court was squarely presented with the question of whether or not the Iowa law denying marriage licenses to same-sex couples, violated the equal protection clause of the Iowa Constitution. The lawsuit was brought by a group of same-sex couples who were denied a marriage license by the Polk County Recorder and Registrar's Office. Due to the law in existence at the time, Iowa Code section 592.2(1), Polk County was prohibited from issuing the licenses. The same-sex couples argued that the law prohibiting them from obtaining a marriage license solely based upon the sex of the person they sought to marry violated the equal protection clause of the Iowa Constitution.

The case was assigned to Iowa District Court Judge Robert Hanson, who after being presented with all of the facts and legal arguments on both sides, ruled that the law's denial of same-sex couples from obtaining a marriage license violated the Iowa Constitution. At that stage in the proceeding Polk County then had the right to appeal Judge Hanson's ruling, which it did. The case was presented to the Iowa Supreme Court. Being squarely presented with the issue, the Iowa Supreme Court had no choice but to decide the issue presented which was: Does a law limiting civil marriage only to a man and woman violate the equal protection clause of the Iowa Constitution.

In an extensive (51 pages) opinion issued on April 3, 2009, the Iowa Supreme Court unanimously agreed that the law violated the Iowa Constitution. Iowa's equal protection clause states in its entirety: "All laws of a general nature shall have a uniform operation; the 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 explained in detail what the equal protection clause of the Iowa Constitution means and the history behind it. It explained: "Iowa's constitutional promise of equal protection is essentially a direction that all persons similarly situated should be treated alike." Polk County argued that heterosexual and homosexual couples were not legally "similarly situated" because homosexual couples could not naturally procreate. However, the law dating back decades and even centuries required that the court not look to the categorization but rather to the purpose of the law to determine whether the people affected by the law were "similarly situated." The reasoning for this is that no two people or groups of people are the same in every way; so if the Court were to merely look at the categorization there could never be an equal protection violation. Prior case law established that the purpose behind Iowa's marriage laws was, and is, to bring a sense of order to the legal relationships of committed couples and their families in a number of different ways. In this sense, heterosexual and homosexual couples were "similarly situated" under the law according to the Supreme Court.

The next inquiry that the Court had to undertake was whether or not there was a sufficient reason to treat homosexual and heterosexual individuals differently under the law. The County argued that it was justified in treating same-sex couples differently for five different reasons: 1) Maintaining traditional marriage; 2) Promotion of optimal environment to raise children; 3) Promotion of procreation; 4) Promoting stability in opposite-sex relationships; and 5) Conservation of resources.

The Court quickly dispatched the first argument finding that while straightforward, it only had superficial appeal because when one really looked at it the County was attempting to use a "tradition" to justify the classification. The Court concluded that such an approach would "permit a classification to be maintained for its own sake." It would be like arguing women could not vote because they traditionally have not been permitted to vote. Addressing the second argument, the Court concluded that the vast majority of available scientific research actually supported the conclusion that the best interests of children are served just as equally by same-sex parents as with opposite-sex parents. According to the Supreme Court, the County's arguments to the contrary were "largely unsupported by reliable scientific studies." For the "procreation" argument, the Court found that the true purpose behind the statute was not to promote procreation or it would have excluded civil marriage of other groups that do not procreate for reasons such as age, physical disability, or choice. The Court also found that prohibiting same sex civil marriages really did nothing to promote the stability of opposite-sex relationships and it further noted that the County offered no reason why it would do so. Finally, the Court addressed the argument that it was a legitimate government interest to ban same-sex civil marriages to conserve governmental resources. In essence, the County argued that the State would reap less tax benefits because an increasing number of people would be subject to the financial tax benefits of marriage. The Court also rejected this argument concluding that there was no evidence that same-sex couples would use more state resources than opposite-sex couples if given the opportunity. This was especially true considering that the estimated number of same-sex couples anticipated to take advantage of civil-marriage were significantly lower than other groups such as people marrying for a second or subsequent time.

While not argued by the County, the Iowa Supreme Court also addressed the religious opposition to same-sex marriage. The Court recognized that it was understandable that religiously motivated opposition to same-sex civil marriage shapes the basis for the majority of legal opposition to same-sex marriage. The Court stated: "Whether expressly or impliedly, much of society rejects same-sex marriage due to sincere, deeply ingrained-even fundamental-religious belief." However, the Court recognized that other groups had equally sincere, strong religious views yielding the opposite conclusion. According to the Court: "This contrast of opinion in our society largely explains the absence of any religion-based rationale to test the constitutionality of Iowa's same-sex marriage ban. Our constitution does not permit any branch of government to resolve these types of religious debates and entrusts to the courts the task of ensuring government avoids them." Bottom line was that it would be a violation of Iowa's freedom of religion clause for the Court to make a legal decision based upon a religious belief or view. To do so would be, in essence, to take one religious view over another which is what Article 1 Section 3 of the Iowa Constitution specifically prohibits. The Court concluded: "In the final analysis, we give respect to the views of all Iowans on the issue of same-sex marriage-religious or otherwise-by giving respect to our constitutional principles. These principles require that the state recognize both opposite-sex and same-sex civil marriage. Religious doctrine and views contrary to this principle of law are unaffected, and people can continue to associate with the religion that best reflects their views."

The Iowa Supreme Court ultimately concluded that because the law treated "similarly situated" individuals (opposite-sex vs. same-sex couples) differently, and the government could not provide a valid justification for doing so, it violated the equal protection clause of the Iowa Constitution and was consequently void and unenforceable.

Politics and the Courts
Members of the judicial branch in the State of Iowa are not elected. They are appointed to their position by the executive branch after a selection committee makes its recommendation. When a position is open, a nonpartisan commission reviews the qualifications of applicants for the opening, conducts thorough background checks, interviews candidates and ultimately makes a recommendation to the governor. The governor, the head of the executive department, has the final say on which applicant receives the nomination and ultimately appoints the new judge. The judge then serves out his or her term on the bench and is put up for "retention" at the end of the term. The judge must receive a majority of the popular vote to be retained ("yes") in order to keep the position for another term.

The reasoning behind appointment of judges as opposed to popular elections is to prevent "popular opinion" from determining the outcome of judicial decisions. It is the judiciary's role to protect citizens from laws or governmental action that might be "popular" at the time, but nonetheless violate constitutional principles of this State and Country. "Popular opinion" many times can lead to a "mob mentality" where governmental action is taken without due consideration being given to the individual constitutional rights that are being affected. Members of the legislative branch are popularly elected and are thus, much more susceptible to being influenced by the wants and desires of the vocal "popular opinion." In fact, it is the legislature's job to listen to the pulse of the community opinion over all else. Judges on the other hand, when making their decision, must not listen to community opinion but must first and foremost respect and pay close attention to prior legal decisions, and most importantly, the individual rights set forth in the Iowa and United States Constitution. The law must dictate their decision not "popular opinion" or even their own individual beliefs.

Example: The community becomes outraged at the recent number of shootings and the legislature voted to prohibit anyone within the city limits of major Iowa cities from owning or possessing hand guns. The legislative branch would be listening to the "popular opinion" but obviously those responsible citizens that owned hand guns would not agree with the law. When presented with the case, the Iowa Supreme Court would have to turn a deaf ear to the "popular opinion" and even their own individual beliefs and would have to strike down the "popular" law because it violates those individual's Second Amendment right to bear arms.

Whether the community necessarily agrees with a judicial decision or not, the judicial branch must remain free from outside influences and must always ensure that their decisions are based upon the law and the constitution. One does not need to look far in history to see how individual rights are violated when the judiciary heeds popular opinion over the inalienable rights bestowed upon all citizens through the Constitution. Listening to "popular opinion," our country enslaved millions, prohibited women from voting, withheld fundamental basic human rights and privileges simply because of the color of a person's skin, and even detained thousands of U.S. citizens only on account of their race during a time of war. Many, if not all of these actions were sanctioned by the Courts of the day only to be determined to have been incorrect years later. This is why an independent judiciary must remain free from influence by "popular opinion" so that the correct legal decisions can be made at the earliest possible opportunity to remedy and prevent violations of individual's constitutional rights at the earliest possible opportunity.

In conclusion, the Iowa Supreme Court was presented with a very specific dispute. There are strong opinions and views on both sides of the subject, all with legitimate points and arguments. However, the bottom line is that the courts in Iowa were required to resolve the legal conflict before them. It is understandable that many may be dissatisfied with the decision, but it was the Iowa Supreme Court's constitutional duty to make a decision one way or the other. The Justices applied the law and the Constitution of the State of Iowa which is the supreme law of the land, and rendered their decision accordingly.

When you go to vote this November, cast your vote according to your own personal beliefs and interests. That is the purpose of popular elections and even our retention system for judges. When it comes to the retention of judges however, please make sure that you cast your vote after becoming informed to the fullest extent possible. If the same-sex marriage decision is important to your vote, we would encourage you to take the time to read the full decision which can be found by clicking this link, Varnum v. Brien. Remember, a vote for or against retention of a judge is not a vote for or against same-sex marriage. Rather it is vote to keep or replace a judge based upon the overall job he or she has done in interpreting the law and the constitution, in every case he or she has presided in up to this point. A valuable resource can also be found by accessing the Judicial Plebesite Results which are the results of a survey answered by attorneys who consistently practice in front of the respective judges. This election, vote your conscience, but vote informed.