DES MOINES, Iowa – On Friday, the Iowa Supreme Court refused former Governor Terry Branstad’s request to stop the trial for a long-running discrimination lawsuit that he, his former legal advisor Brenna Bird, and his former chief of staff Jeff Boeyink are named in as defendants.

Branstad had former Workers’ Compensation Commissioner Chris Godfrey’s pay slashed by 35 percent after Godfrey refused to resign after the governor requested it in 2011. Godfrey was confirmed to a six-year term as Commissioner by the Iowa Senate. He claims that Branstad’s actions were because he is gay. Branstad said he wanted a pro-business commissioner and had received complaints from members of the business community about Godfrey who was appointed by former Democratic Governor Tom Vilsack and then reappointed by former Democratic Governor Chet Culver.

The trial started last week with District Court Judge Brad McCall, a Culver appointee and former plaintiff’s attorney, presiding. McCall, who is a district court judge in Jasper County (Judicial District 5A), was assigned the trail despite its location in Polk County (Judicial District 5C).

Branstad’s attorneys, Katie Graham and David Bower, petitioned the Iowa Supreme Court to place a stay on the trial until the resolution of a dispute over evidence McCall allowed.

According to the petition, McCall ruled that the following “circumstantial evidence” is admissible at trial:

  • Evidence of candidate/Governor Branstad’s public policy positions on Varnum v. Brien, same-sex marriage, and the constitutional amendment process in Iowa;
  • Evidence of Governor Branstad, Boeyink, and Findley’s affiliation with the “anti-gay” Republican Party of Iowa;
  • The private, religious beliefs of individual members of the Iowa Association of Business and Industry (“ABI”) regarding whether homosexuality is sinful; and
  • Opinion testimony that the Republican Party of Iowa is “anti-gay” from elected officials who had no involvement in Governor Branstad’s decisions.

Regarding Branstad’s public policy positions, McCall ruled:

If a particular statement or announced position is circumstantial evidence of discrimination, it doesn’t matter whether the statement or announced position is made by a political office holder or a non-office holder. . . The Court concludes a candidate or public office holder’s stated position may be evidence of a state of mind and may be offered as circumstantial evidence that the individual acted in a discriminatory manner.

In allowing the admission of Branstad’s affiliation with the Republican Party of Iowa, he ruled:

If the evidence establishes that the Republican Party is, in fact, ‘anti-gay’, testimony of the individual defendant’s affiliation with the Republican Party would make it more likely that a particular action was motivated by ‘anti-gay’ animus…

…Quite simply, if the evidence establishes the Republican party was “anti-gay” in 2010 and 2011, and in the individual defendants were members of the Republican party, it is more probable the employment actions taken against Godfrey were due to his sexual orientation.

McCall plans to allow testimony from Democratic lawmakers and public figures who shared how “anti-gay” the Republican Party of Iowa was.

In denying the defendants’ request to exclude that testimony as evidence he wrote:

Godfrey is entitled to present to the jury any evidence that makes it more probable the employment actions taken against him were due to his sexual orientation. Quite simply, if the evidence establishes the Republican party was “anti-gay” in 2010 and 2011, and in the individual defendants were members of the Republican party, it is more probable the employment actions taken against Godfrey were due to his sexual orientation.

Branstad’s attorneys argued that “not one shred of evidence” was presented that demonstrated the governor took action because of Godfrey’s sexual orientation.

The evidentiary rulings for this trial have implications for all Iowans in future discrimination lawsuits.

In their petition, they wrote, “(T)he District Court’s rulings have now officially converted this trial into an eight-person referendum on the viewpoints of the Republican Party of Iowa and its approximately 640,000 registered members, as well as the private religious beliefs of many others.”

They are right. One’s political party registration should not be considered “evidence” and neither should a person’s religious views. It’s possible for people to believe homosexuality is a sin, same-sex marriage is wrong, and still have LGBT employees. It’s possible because it happens all of the time.

The only “evidence” that the plaintiffs appear to bring is the fact that an employee of the Iowa Association of Business and Industry (ABI) who advised the Branstad Administration about Godfrey admitted that he is an evangelical who believes the Bible teaches homosexuality is a sin who favored a constitutional amendment to protect traditional marriage.

Because of this, Godfrey contends that ABI is “anti-gay.” I’ll note that ABI has opposed, much to my frustration, Iowa’s version of the Religious Freedom Restoration Act.

Branstad’s attorneys described the problem with this “evidence.” They wrote, “(A)n elected official – like Governor Branstad – may be subjected to civil liability in the future if he listens to his constituents who may hold, in his private life, certain religious views.”

McCall’s rulings have put Iowa’s freedom of speech, freedom of religion, and freedom of association at risk. By not stopping it, the Iowa Supreme Court just gave its tacit approval.

Branstad’s attorneys warned, “The District Court’s ruling – if allowed to stand – would fundamentally and inalterably chill the constitutional rights of the People, and transform the judiciary into a forum for litigation of political disputes.”

owans should be gravely concerned about the precedent this sets even if the plaintiffs prevail.

Read the petition below:

Photo credit: Gage Skidmore (CC-By-SA 2.0)

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