November 1, 2010
The ardently non-partisan web site Factcheck.org reviews the Iowa TV ad by the National Organization for Marriage and has this to say:
In Iowa, the only issue anyone talks about in connection with the three justices facing retention votes is the court’s 2009 ruling in the case Varnum v. Brien making Iowa the third state in the U.S. to allow same-sex marriage. (Currently five states and Washington, D.C., issue marriage licenses for same-sex couples.) Opposition has been heated, and anti-gay marriage groups are out for the justices’ scalps.
Narrator: Activist judges on Iowa’s Supreme Court have become political, ignoring the will of voters, and imposing same-sex marriage on Iowa. Liberal, out-of-control judges ignoring our traditional values and legislating from the bench, imposing their own values on Iowa. If they can usurp the will of voters and redefine marriage, what will they do to other long-established Iowa traditions and rights? Three of these judges are now on the November ballot. Send them a message. Vote no on retention of Supreme Court Justices.
This ad is rooted mostly in opinion, and everyone is entitled to that. If Iowa for Freedom and the National Organization for Marriage believe that the state’s justices have “become political” and are “liberal” and “out-of-control,” we’re not going to argue. We can, however, point out a few facts and provide some context.
For one thing, the court decision was unanimous. That means that it included the two justices who were appointed by a Republican governor, Terry Branstad – who, by the way, signed the law that was overturned by this decision and has criticized the court’s action. One of those two justices, Mark Cady, was the author of the opinion. The other, Marsha Ternus, is one of the three justices — the others are David Baker and Michael Streit — who are up for a retention vote.
Second, like it or not, “ignoring the will of voters” is exactly what justices are called on to do. They are meant to base their decisions on the facts and the law, most important, the state constitution. Furthermore, the “will of the voters” is not entirely clear; most polls, such as one conducted for Des Moines television station KCCI last February, have found Iowans closely divided (this one asked respondents whether they’d favor a constitutional amendment barring same-sex marriage). Several months before that, a poll for the Des Moines Register found similar results. It also found that well under half of those polled said they disapproved of the court’s decision:
Des Moines Register, Sept. 21, 2009: The poll shows that 26 percent of Iowans favor April’s unanimous court ruling legalizing same-sex marriage, 43 percent oppose it and 31 percent don’t care much or are not sure.
Finally, the ad says that the justices were “legislating from the bench” and “imposing their own values” when they issued the decision. Those are clearly opinions. But we would point out that the court ruled that the legislature had violated the state constitution’s guarantee of equal protection. Here’s part of what Cady wrote about that:
Varnum v. Brien, April 3, 2009: We are firmly convinced that the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective. The legislature has excluded a historically disfavored class of persons from a supremely important civil institution without a constitutionally sufficient justification. …
This approach does not disrespect or denigrate the religious views of many Iowans who may strongly believe in marriage as a dual-gender union, but considers, as we must, only the constitutional rights of all people, as expressed by the promise of equal protection for all.