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It has been nearly six years since the 2010 election that followed the Iowa Supreme Court’s Varnum decision redefining marriage in Iowa. Before Varnum, Iowa law reflected age-old wisdom about channeling adult human intimate behavior into permanent, exclusively monogamous pairs would care for and nurture the children such unions likely produce. Varnum set this understanding of marriage aside and replaced it with a legally incoherent definition of marriage as “a loving, committed relationship” between two people.
Many Iowans were outraged by this decision that cast opponents of same sex marriage as homophobic bigots, and gay marriage supporters as human rights pioneers cut from the same cloth as early anti-slavery abolitionists, and the American civil rights movement of the 1960’s.
Many thoughtful Iowans felt the the Supreme Court had overstepped its bounds, that a complicated policy decision such as the purpose and meaning of a complex, foundational institution like marriage is rightly given to the legislature. They are closer to the people by virtue of biannual and quadrennial elections, and there the many facets of such a decision will be aired, weighed and balanced.
Others, who carefully studied the decision found it contemptuously dismissive of good arguments in favor of traditional marriage, circular in its logic, and having the appearance of having been cribbed from the Lambda Legal Defense Fund amicus brief filed by the gay activist law firm that propounded the entire series of legal actions that led up to Varnum.
Iowa was a good target for Lambda to select for their project. Iowans do not have the right of ballot initiative so it is especially difficult here for citizens to undo the mischief of liberal activists on the bar and on the bench. In Iowa,the structure of power in the legislature allowed Senator Gronstal to prevent the Iowa Senate from taking any action to undo Varnum.
In 2010, the only way Iowa voters could register a vote against Varnum was to vote against the three Supreme Court judges who had come up for a routine vote on whether to retain them on the court. Iowans voted all three off the bench in an unprecedented rejection of the kind of judicial activism that overruled the will of the people and the Defense of Marriage Act passed by the Iowa legislature and signed by the Governor.
The anti retention vote was criticized by the liberal media as an undue politicization of our court system. That criticism ignores the a priori political nature of the Varnum decision itself. It was the court itself that brought politics in to marriage in the making of their decision. The people of Iowa availed themselves of their constitutional prerogative when they voted “no” on retaining these judges.
I do not advocate popular review of unpopular decisions as a matter of course. But in the case of Varnum there is egregious judicial over reach, and political judgement employed in selection of degree of scrutiny and in weighting of testimony. In my view, these amount to judicial malfeasance, full grounds for removal by the people. I would hope a vote against retention would be seen in this light.
For the rule of law to flourish in our society, a high level of trust and respect must exist between the court and the people. Peace in our society requires an understanding that the police and the court administer justice fairly and equitably. After Varnum, there is reason to doubt this particular Supreme Court’s fairness in dealing with cases that involve social issues popular on the left. I would not expect my own conservative beliefs to be given fair hearing in Justice Cady’s court, were I ever to stand there defending them.
There are many today in Iowa who hope that opposition to Varnum has blown over. They hope the reaction of the ’10 elections got it out of the voters’ systems and that by ignoring the issue of the meaning and purpose of marriage in Iowa, society will change and genderless marriage will come to be accepted as normal. And all of this by judicial fiat.
This is certainly the position of the current leadership of th Iowa Senate. The Iowa House lacks courage to press the matter. So it falls once again to the voters to make their voices heard on the meaning of marriage, and on the proper role of the courts.
And as has been the case for the past six years, the only avenue open to voters is the retention vote for the Iowa Supreme Court justices. Voting “no” on retention remains the only way an Iowa voter can express disapproval of Varnum. This coming election cycle, Mark Cady, author of the Varnum decision will be up for retention along with two fellow concurring justices. A second wave of expulsions would have a much needed humbling effect on activist judges. And it would signal that Iowa voters do not accept judicial redefinition of marriage in our state, and that we have not forgotten. Perhaps after a second round of “no” votes on judicial retention, the legislature will be emboldened to undo the ill effects of the Varnum decision.