On April 3, 2009, the Iowa Supreme Court made history by unanimously striking down a statute barring same-sex marriage, making Iowa the third state in the U.S. and the first state outside of New England to allow same-sex marriage. Massachusetts and Connecticut already allowed same-sex marriage at the time; California had done so before the passage of Proposition 8, a 2008 constitutional amendment defining marriage as strictly between a man and a woman.
The Iowa case, Varnum v. Brien, was notable for several reasons. It was the first unanimous high court opinion supporting the constitutionality of same-sex marriage. It also established Iowa as the first state to protect marriage rights for same-sex couples despite weak popular support; until Iowa’s ban was struck down, support among Iowans for same-sex marriage remained below 50%.
In establishing the right of same-sex couples to marry, the Iowa Supreme Court articulated the essential role of the judiciary in protecting minority rights. The opinion, written by Justice Mark Cady, explained: “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.” In this way, the decision echoed the United States Supreme Court’s famous ruling in Brown v. Board of Education in 1954, which declared racial segregation in public schools to be unconstitutional, despite a lag in public opinion supporting school integration.
The Court noted in its decision that Iowa had a long history of progressive thought on civil rights. Seventeen years before Dred Scott was deemed merely the property of his owner, the Iowa Supreme Court “refused to treat a human being as property to enforce a contract for slavery and held our laws must extend equal protection to persons of all races and conditions.” Eighty-six years before “separate but equal” was struck down by the U.S. Supreme Court in Brown v. Board of Education, the Iowa Supreme Court ruled such practices unconstitutional in Iowa. In 1869, Iowa was the first state in the union to admit women to the bar and to allow them to practice law. Three years later the U.S. Supreme Court affirmed the State of Illinois’ decision to deny women admission to the bar.
The unanimous decision concluded: “We are firmly convinced 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. There is no material fact, genuinely in dispute, that can affect this determination. We have a constitutional duty to ensure equal protection of the law. Faithfulness to that duty requires us to hold Iowa’s marriage statute, Iowa Code section 595.2, violates the Iowa Constitution. To decide otherwise would be an abdication of our constitutional duty. If gay and lesbian people must submit to different treatment without an exceedingly persuasive justification, they are deprived of the benefits of the principle of equal protection upon which the rule of law is founded. Iowa Code section 595.2 denies gay and lesbian people the equal protection of the law promised by the Iowa Constitution.”
Shortly after former Iowa Supreme Court Justices David Baker and Michael Streit and former Chief Justice Marsha Ternus joined their four colleagues in ruling in favor of marriage equality based on the state constitution’s equal protection clause, they faced a pro forma retention election. A provision of Iowa’s court system established 50 years ago to protect the bench from unscrupulous or corrupt judges, retention votes were explicitly non-political. But when Ternus, Baker and Streit cast their votes to legalize same-sex marriage, they were aware that national groups opposed to marriage equality were preparing to launch an unprecedented retaliatory campaign to oust them. They were the only three Iowa Supreme Court justices up for retention in 2010.
Marsha Ternus was appointed to Iowa’s Supreme Court in 1993 and was elected Chief Justice by her colleagues in 2006. She grew up in rural northern Iowa and focused her judicial career on improving oversight for children within the court system. David Baker was appointed to the Court in 2008. His previous experience included service as a district court judge and appellate judge and as part of Iowa’s Ethics and Grievance Committee. Michael Streit was appointed to the Court in 2001 after 13 years as a district court judge and five years as an appellate judge; he had also served as chair of the Judges Association Education Committee.
In the fall of 2010, Ternus, Baker, and Streit faced a million-dollar opposition campaign managed by the National Organization for Marriage. The justices did not campaign on their own behalf, believing it was inappropriate for members of the court to solicit votes in a political context. They only spoke publicly about the vote shortly before Election Day. All three were defeated, marking the first time since Iowa’s modern judicial system was established that any high court judge was ousted in a retention vote. The National Organization for Marriage has planned to launch similar campaigns in 2012 and 2016 against the remaining four justices who decided Varnum v. Brien.
The ouster of the three Iowa justices signaled a profound shift in the influence of special interests on the judicial branch. In an interview with The New York Times, Erwin Chemerinsky, the dean of the University of California, Irvine, School of Law, explained, “What is so disturbing about this is that it really might cause judges in the future to be less willing to protect minorities out of fear that they might be voted out of office.” He went on to warn, “Something like this really does chill other judges.”
Since the Iowa Supreme Court decision in 2009, Vermont, New Hampshire, the District of Columbia, New York, Maryland, and Washington have joined the list of states allowing same-sex marriage. Despite an evident shift in public opinion and legislative action on the issue of gay marriage, national interest groups such as those who financed the campaign against Ternus, Baker, and Streit continue to pledge their resources to block any expansion of rights for gay and lesbian couples.
The 2012 Profile in Courage Award is presented to Marsha Ternus, David Baker and Michael Streit for their demonstrated political courage and judicial independence in upholding, in the face of popular opposition, the basic freedoms and security guaranteed to all citizens under the Iowa constitution.