Legal Commentary

Same-Sex Marriage and the Defeat of Iowa Supreme Court Justices

By Eugene Volokh

As Todd discussed two weeks ago, three Iowa Supreme Court Justices were defeated this month, because of the court?s unanimous decision to strike down the opposite-sex-marriage-only rule under the Iowa Constitution. (Those three were the only ones who were on the ballot this year.)

Of course, this vote doesn?t undo the Iowa Supreme Court?s decision; and one question is why the opponents of the decision didn?t try to undo it via constitutional amendment. Amending the Iowa Constitution isn?t easy, but it?s not that hard ? certainly not as hard as amending the U.S. Constitution would be. But someone whom I know and respect, and who knows the Iowa politics around the issue pretty well, has this perspective (some paragraph breaks added):

[A]n alternative mechanism for constitutional amendment would have made all the difference in Iowa. The retention vote was not the most straight-forward path for opponents of gay marriage. Rather, it was the last resort.

The political and legal establishment was surprised by the Varnum decision, although hints of that possibility became apparent at the oral argument (when it also became apparent that the state was offering only a token legal defense of traditional marriage before the Iowa Supreme Court[] ? focused on the weakest argument that allowing gay marriage would discourage heterosexual marriage[)].

Governor Culver, who had signed the Defense of Marriage Act, undoubtedly expected the Iowa Supreme Court would spare him having to do anything and would not constitutionalize gay marriage. He said said the state would let the judicial process go forward and then be ready to respond it necessary. Just a couple of months before the Iowa Supreme Court decision, Culver promised he would ?do whatever it takes to protect marriage between a man and a woman.? But after the decision, Culver disappeared from public view for days and then back-tracked, saying he did was ?reluctant? to try to amend the state constitution. Next, the Democratic leader of the state senate announced that, even if a majority of state senators from both parties asked for the matter to be put to a vote in the next election, he would block it under his special powers as senate president.

The legal establishment turned on a dime from arguing that the state supreme court should liberally construe the state constitution to adapt to the times and uphold gay marriage to now arguing that anyone disagreeing with the decision was attacking the constitution, the courts, and the rule of law. In sum, the majority of Iowans who were opposed to the decision were denied any outlet for a vote at every turn and told their objections were illegitimate and they should silently accept the decision. Thus, at the end of the day, they concluded that the retention vote was the only venue left to them.

If Governor Culver had kept his promise and if the Iowa legislature had allowed a vote on a constitutional amendment, that would have been an end to it, however the vote turned out. There would have been no campaign in Iowa to oust the justices.

Of course, none of this speaks to whether the Iowa Constitution should have been amended, or the Justices should have been voted out of office; it just suggests why this vote might have happened the way it did.

Full post as published by The Volokh Conspiracy on November 18, 2010 (boomark / email).