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Judicial independence and the Iowa same-sex marriage decision

January 18, 2012 | Events

The Ohio State University Moritz College of Law will host former Iowa Chief Justice Marsha Ternus on Jan. 30, at noon in the William B. Saxbe Auditorium. Please join the American Constitution Society and OutLaws for a discussion on the need for judicial independence and the Iowa Supreme Court’s historic vote in Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009).

On April 3, 2009, Iowa became the third state in the nation—and first in the Midwest—to allow same-sex marriages. In a unanimous decision in Varnum the Iowa Supreme Court, “firmly convinced [that] the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective,” concluded that the Iowa marriage statute “denies gay and lesbian people the equal protection of the law promised by the Iowa Constitution.” It thereafter struck the limitation of “civil marriage to a man and a woman” from the Iowa Code, “allowing gay and lesbian people full access to the institution of civil marriage.”

Although the decision was welcomed by many, including the Iowa Speaker of the House and Senate Majority Leader, opponents of same-sex marriage organized a campaign to remove Chief Justice Ternus—a Republican appointee—and two other justices who were also up for retention in 2010.

The campaign, led by an unsuccessful Republican candidate for governor, garnered significant financial support, mostly from out-of-state social conservative and religious groups, spending more than $650,000 to oust the justices. Campaigns that supported the justices spent around $200,000. The justices declined to campaign or raise money for themselves.

On Nov. 2, 2010, Iowans voted not to retain the three justices, a first since the inception of the Iowa retention election system in 1962. They did, however, vote to retain the 71 lower court judges on the ballot, including the trial judge who initially struck down the marriage law.

“Chief Justice Ternus has emerged as a leading voice on judicial independence, a principle at the core of American democracy,” said Daniel P. Tokaji, Robert M. Duncan/Jones Day Designated Professor of Law. “We should all be troubled when judges are removed because of their opinion in a controversial case. Yet thanks to Chief Justice Ternus’ advocacy since her removal, there is now a great opportunity to create a system in which judges are free to protect minority rights without fear of reprisal.”

The original Varnum opinion is available here.

For more information on judicial elections, please see Judicial Elections: Will They Destroy the Third Branch? in the Spring 2008 issue of All Rise, which features former U.S. Supreme Court Justice Sandra Day O’Connor and the late Ohio Supreme Court Chief Justice Thomas J. Moyer ‘64