Baker, Streit, Ternus - About their Political Courage

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. The Iowa case, Varnum v. Brien:

  • Was the first unanimous high court opinion supporting the constitutionality of same-sex marriage; 
  • 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%.

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.

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.

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