Same-Gender Marriage Judges Get the Boot In Iowa


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Three Iowa Supreme Court justices lost their seats Tuesday in a historic upset fueled by their 2009 decision that allowed same-gender couples to marry.

Vote totals from 96 percent of Iowa’s 1,774 precincts showed Chief Justice Marsha Ternus and Justices David Baker and Michael Streit with less than the simple majority needed to stay on the bench.

Their removal marked the first time an Iowa Supreme Court justice has not been retained since 1962, when the merit selection and retention system for judges was adopted.

The decision is expected to echo to courts throughout the country, as conservative activists had hoped.

“It appears we’re headed for a resounding victory tonight and a historic moment in the state of Iowa,” said Bob Vander Plaats, the Sioux City businessman who led a campaign to remove the justices because of the 2009 gay marriage ruling. “The people of Iowa stood up in record numbers and sent a message … that it is ‘We the people,’ not ‘We the courts.’ ”

Ternus, Streit and Baker will remain on the bench until Dec. 31.

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 (Source: Des Moines Register)


  1. It matters not one iota what is the underlying political issue; voting out judges because people don’t agree with their legal decisions is dangerous – and runs counter to a tradition of an independent judiciary that is hundreds of years old in all legal systems that developed from Britain’s.

    This tradition reflects a public policy, wise I think, that says a judge should not be swayed by public opinion, but only by his reading of the law – and it’s the reason why most judges in British based common law systems, including most judges in the United States, are appointed for life.

  2. #1, Yonasan Lib: I hope you understand that there is “also” the “slight” danger that judges will be totally unaccountable to anyone or anything, and make up their own laws; otherwise known as “legislating from the bench”. Maybe the people of Iowa thought that’s what happened in this case…

  3. Incidentally, goodbye – the “law” that requires an employer to make reasonable accommodations for a Shomer Shabbos employee comes from judiual interpretations of the Constitution and Civil Rights statutes. Don’t confuse disdain for a legal result with the judicial process that led to that result.

    The common law system we inherited from Britain gives the judiciary the responsibility to interpret law, and to add to the body of law through judicial decisions. That is neither conservative nor “Lib” – it is part of the very the core of our legal system

  4. Under the US Constitution sovereignty lies with the people. The concept of Judicial independence means to be free of influence or pressure from other sectors of the Government or special interests. It does not mean to be independent of the influence of the people. The Iowa system seems like an excellent way of reestablishing the sovereignty of the people over all parts of the US Government. My hope is to see something like this for Israel in the near future.
    Aryeh Zelasko
    Beit Shemesh

  5. arey_z, your “sovereignty of the people” argument sounds good when you say it fast, but it collides with fundamantal principles related to protecting minority rights.

    I think you might be interested in reading James Madison on the need to protect minorities from what Alexis De Tocqueville called the “tyranny of the majority.” A democracy requires a strong defense of minority rights, equally as much as it needs majority rule… a minority’s rights must be protected no matter how alienated that minority is from the majority opinion.

    This has been proven time and time again in American history. Electorates in the deep south would never have countenanced civil rights for minorities in the 60s, unpopular classes of criminal defendents are not left to the whim of popular mob psychology, and the rituals and beliefs of religious minorities are not simply pushed aside by majority opinion – and these protections could not have taken legal root and flourished in the United States without a totally independent federal judiciary, one where judges are not subject to electoral recall

    If you don’t like the substantive results of the Iowa Court’s toiva marriage decisions, that’s fine, even proper. But if you move against a truly independent judiciary, the next time you are faced with the issue may be in the context of shechita, as an example, if the “sovereign” public deams it cruel.

  6. yonasanW (no. 1) says: “It matters not one iota what is the underlying political issue; voting out judges because people don’t agree with their legal decisions is dangerous …”

    …And I say: it depends on the issue. “Gay Marriage” is an oxymoron, and any judge who approves it lacks fundamental common sense, and belongs in an insane asylum.

    “Im ain daas, havdalah minayin!”

  7. There is no contradiction between sovereignty of the people and minority rights. It is not the Judiciary, independent or controlled that protect a minority or even the majority. It is the cultural commitment of a people to be tolerant. That is what John Adams meant when he wrote that the American system could only work as long as the people were religious and moral. As long as the general public believed that it was G-D that gives men rights, as the Declaration of Independence stated, it is possible to have laws that protect minorities and majorities. However once G-D is removed from the nation, there can no longer be a system based on the rule of law but the rule of men and then anything is possible. The ruling of these ousted judges clearly shows that they have removed G-D from their world view and that is why they lost the support of the people. The masses of Americans are still religious and moral and want their judges and other government official to reflect that. That is what sovereignty of the people means.

  8. #5,

    You should reread the Federalist Papers regarding the importance of judicial independence. There are very good reasons the Founding Fathers made federal judges appointed and not elected.

  9. Same sex marriage might repealed in New Hampshire, too, as the Republicans won veto-proof margins in both houses of the legislature. However, a lot of Republicans in NH support same sex marriage so it isn’t clear how this will work out.

  10. EDITORIAL: A blow to judicial tyranny
    Iowans dispose of activists on the state Supreme Court

    The Washington Times
    6:54 p.m., Thursday, November 4, 2010
    This week’s elections weren’t just about the economy. Concerned about judicial tyranny, Iowans booted all three of the state Supreme Court justices who appeared on Tuesday’s ballot – the first high court justices to be defeated since 1962, when Iowans created a system of voting on whether or not judges should be retained.
    The Hawkeye State’s judicial elections rarely generate much controversy or interest, with most judges generally enjoying approval levels of around 75 percent. That changed with the high court’s unanimous 2009 decision discovering a right to homosexual “marriage” in the state constitution – a view that would have shocked those who drafted the document long before homosexuality was the subject of polite conversation, let alone political debate.
    Most of the voters repudiating those justices oppose homosexual marriage, but the rebuke did not come just from traditional conservatives. In a state where polls show residents evenly divided on the issue, opponents of homosexual marriage were joined by political moderates and even supporters of homosexual marriage who understand there is a more fundamental issue at stake than who can marry whom. For those voters, the uncharacteristic ousters appear to have been driven by a distaste for judges who attempt to rewrite the law. In our system of divided government, members of the judicial branch have a very specific duty to interpret the fine points of constitutional law and to apply the meaning of more mundane legislation to specific cases. When judges step outside this role and act as robed political leaders, they don’t just become controversial, they become a threat to our political system based on the separation of powers.
    That fact should not be lost on judges across the country who are tempted to substitute their personal policy views for the disinterested application of the law. Judges should realize that even people who agree with their views want judges to keep those views to themselves.
    It also is a warning to Republicans. Two of the three judges who now will spend more time with their families were appointed to the bench by then-Gov. Terry E. Branstad, a Republican. The same voters who rejected the justices Tuesday decided on the same ballot to return Mr. Branstad to the governor’s mansion. Appointing judges who understand their starkly limited role is among the most critical duties of governors and the president. Republicans only have themselves to blame if the chief executives they select do not understand this fact.