In Brief: Fair Courts Under Attack

From November 2010 eNews

The loss of the three well-respected Iowa Supreme Court Justices voted off the bench this week after a vicious campaign by antigay groups who targeted them because of the unanimous decision the Iowa Supreme Court issued in Lambda Legal's marriage equality lawsuit should sound the alarm for all of us.

But first, let's be clear about what happened this week in Iowa and what didn't happen: Three skilled jurists lost their jobs, but the Court's ruling in the case allowing same-sex couples to marry is still the law of the land, enshrined in the Iowa Constitution and same-sex couples continue to marry in Iowa. Anti-gay groups have lost on the big issue—equality—and they are attacking our courts for protecting it.

This spiteful campaign is a wake-up call to voters who must resist future attempts to politicize the courts. It is the responsibility of us all to protect the system of checks and balances that defines our democracy, and it continues to be our responsibility at Lambda Legal to make our case for equality, not just before judges, but in the court of public opinion.

We are angry, but we also take the long view: The Iowa Supreme Court delivered justice that will outlast this political fight by upholding the Iowa Constitution's guarantee of equality for all Iowans. The unanimous panel of judges was so aware of what their duty to the constitution required that at both oral argument and in the written opinion in the case they very diligently explained the legal review process and the role of the Court to the public.

"Our responsibility… is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time." —Iowa Supreme Court Justice Cady, Varnum v. Brien.

It is alarming that one-issue ideologues spent nearly $1 million in an attempt to intimidate judges in Iowa (and, by extension, jurists in other states as well). The antigay bullies who toured Iowa represent some of the same groups whose appeals were rejected by the United States Supreme Court earlier this year when they attempted to conceal the names of supporters who signed an antigay ballot measure in Washington State by making false claims that they were fearful of retribution. In one state they play 'victim' while in another they intimidate.

Judicial retention elections are usually unremarkable, and intended not to provide a referendum on individual court decisions but to allow voters a say about the overall competence of judges or specific instances of corruption, neither of which was even an issue in Iowa. In their effort to ramp up public sentiment against the justices in Iowa, however, antigay groups lied to voters saying that their vote against the justices would also overturn the marriage ruling. A flier from their hateful bus tour through Iowa reads, "The ruling by these judges, a ruling which goes directly against the will of the citizens, can be reversed through the act of Iowans voting 'No' on the retention of all three activist judges…" This is a blatant lie. Retention elections have no effect on prior court decisions. To date, our opponents have failed to gain sufficient political or popular support to begin the lengthy process of amending Iowa's constitution, and recent polls demonstrate that Iowans oppose such an effort. Gay and lesbian couples will continue to get married in Iowa, just as they did before this election.

Political attacks on the judiciary are nothing new. In 1954, after the U.S. Supreme Court ruled in Brown vs. Board of Education that state-mandated segregation in public schools violated the U.S. Constitution, there were cries that the Court had overstepped its role and usurped power from the legislature. Billboards to "Impeach Earl Warren" littered the South. Thankfully, the nation rejected those attempts to politicize the judiciary and the Warren Court's landmark civil rights decisions are celebrated today.

The result in Iowa shines a light on a dangerous agenda to undermine the democratic system of checks and balances that has served us well for over 200 years. The American history of civil rights protected by our Constitution is a proud one. In Iowa, seven jurists were posed a question by people who'd been denied basic fairness guaranteed by the state constitution. The judges did their jobs with integrity—as they must. If an embattled judiciary lost its ability to protect our laws and constitution with impartiality, that would be a tragic loss for our country.

Courts are under attack in our country and it is critical that we all understand what is at stake. Ordering or downloading your copy of Lambda Legal's Gear Up! A Fair Courts Toolkit for Everyday Advocates is a good start.