The freedom to marry remains intact in Iowa. In fact, the freedom to marry in Iowa was not on the ballot this election cycle — and every poll leading up to the vote showed that Iowa voters have accepted the constitutional command of equality unanimously upheld by their state supreme court in 2009 and ranked overturning it at the bottom of a range of concerns on their minds.
Still, Election Day in Iowa saw a vicious attack from some of the nation’s most notorious antigay organizations and leaders. Politicizing for the first time ever a low-attention, normally routine down-ballot vote regarding whether to “retain” three of the justices, these groups flooded the state with an unprecedented amount of money — more than $700,000 — targeting judges who, out of respect for the judicial selection system, did not campaign for retention or run ads defending themselves. Sadly, the three went down.
At the same time as they were warping the retention vote, NOM (the so-called National Organization for Marriage) and its fellow antigay groups (Focus on the Family and American Family Association) also went after Iowa attorney general Tom Miller, who was attacked by his opponent for not challenging the ruling that led to the freedom to marry. Miller won reelection because, along with his record over seven four-year terms of service as attorney general, he could defend himself against baseless attacks in a political campaign, unlike the three justices. And, by a two-thirds majority, Iowans also rejected the “Call the Convention” campaign that would have initiated a constitutional convention at which the antigays could pursue a change in Iowa’s constitution that would end the freedom to marry in the state.
In this intense and angry election, Iowa’s voters were not voting on marriage or on gays. Still, as Carolyn Jenison, executive director of the state LGBT group One Iowa, sees it, “three courageous justices who recognized the freedom to marry in Iowa fell victim to a perfect storm of electoral discontent and out-of-state special interest money.”
Like many state legislatures this election, Iowa’s house has now flipped to Republican control, and the Democratic margin in the senate has decreased substantially — not because of the electorate's feelings about gay people or marriage, but in a way that requires vigilance. It will fall to senate majority leader Mike Gronstal, a true champion, to hold the line against efforts to railroad through a constitutional amendment stripping the freedom to marry from gay couples. And One Iowa will need support from all of us committed to defending liberty and justice in Iowa against the out-of-state attacks that will again swamp the state in an effort to advance an attack amendment aimed at undoing the freedom to marry.
NOM’s real target was not just Iowa and the freedom to marry, but rather, the American judiciary. They will wave their bloody shirt around the country in a thuggish effort to intimidate courts and deter judges from fair and independent consideration of cases challenging antigay discrimination. The attack on the Iowa judges was a new low, even for NOM — a despicable and dangerous assault on bedrock American principles. The antigay forces’ desperate tactic displayed their contempt, not just for gay couples, but also for the court, our Constitution, and the American system of checks and balances.
In one way, this is nothing new. Undermining courts and impartial judges has been a favorite tool in the right-wing attack machine’s toolbox for decades. At various civil rights moments in American history, the courts' vital role in enforcing equal protection has come under tremendous pressure, as have judges themselves. Recall, for instance, the "Impeach Earl Warren" billboards following Brown v. Board of Education and the concerted wave of political attacks against that hallmark ruling; the vitriol against the California supreme court when it had to strike down a 1964 constitutional change that undermined protections against race discrimination; and the Rovian campaign of intimidation waged against so-called activist judges during the last administration. Remember the attacks on Judge Vaughn Walker when he struck down Proposition 8 a few months ago.
What is new, however, is the recklessness of the right wing’s desperation. Without the courts, our country would not have made the changes we needed to end legal race discrimination, to advance the equality of women, to ensure freedom of speech, or to protect religious minorities against stigma and oppression. While courts do sometimes get it wrong, they have a vital and legitimate role to play in our American constitutional system.
With the law clearly not on their side, without any facts to rely upon, and with a majority of Americans on the side of fairness, antigay forces are desperate and willing to lay waste to our courts and our most cherished American principles in order to get their way and punish same-sex couples. As the losses continue to pile up for these extremists, their attacks become more vicious and they resort to shoveling torrents of money into one-sided elections, as they have done in Iowa.
Over the years advocates of the freedom to marry have turned to the courts to end exclusion from marriage, asking judges to consider what reason the government has for withholding civil marriage licenses. We have won some cases and lost many others. Unlike right-wing opponents of equality, who denounce and seek to punish courts for doing their job, I criticize only when they flinch or fail to do it. But we have never resorted to the malicious tactics demonstrated by antigay forces.
Disagreeing with a specific decision on its merits is one thing. But when you hear politicians or antigay groups like NOM attacking jurists for doing their jobs, consider whether people in other countries without an independent judiciary committed to upholding constitutional guarantees are really more free, equal, or safe. There is a reason why everything does not get put up to a vote. There are certain basic rights and protections that belong to each individual and cannot be taken away — not even by the majority. As Americans, we count on our Constitution and courts to safeguard the inalienable rights guaranteed to all of us. It’s not as if politicians never get things wrong; we want independent judges there to police the boundaries and uphold the Constitution. In the words of former Supreme Court justice Sandra Day O’Connor, “Obstructing the other branches when they break the rules is precisely what the judiciary is constitutionally obligated to do.”
As we saw again in the Prop. 8 trial, there is no good reason to exclude loving and committed same-sex couples from marriage. Prop. 8 defenders of antigay discrimination went as far as to assert during their closing arguments in the case that they “don’t have to have evidence” — a shocking assertion in any case and more proof of their utter disregard for the judicial process. With no evidence to back up their antimarriage position, attempting to dismantle the courts is all that remains for antigay activists, and so they resort to funneling their flood of secret money into campaigns that suggest we don’t have to have independent judges either. Nothing, in their view, should stand in the way of their antigay agenda, and so their attack campaign continues.
In a September speech in Iowa, Justice O’Connor — hardly a liberal partisan — praised the merit-based judicial selection process in Iowa (as has the U.S. Chamber of Commerce and Iowans for Fair and Impartial Courts) and condemned politicization of the retention process. She urged Iowans not to oust judges simply because of disagreement with a decision.
“There are some threats to our court systems from judicial elections with the vast amounts of contributions that come into the courtroom, in effect,” said Justice O’Connor. In earlier statements, she put it even more forcefully: “We must be ever vigilant against those who would strong-arm the judiciary into adopting their preferred policies.”
America’s courts are under attack by antigay forces, and we can’t leave defending the Constitution to judges alone. All of us, gay and nongay, have to create the climate of receptivity in which judges, legislators, and politicians are emboldened, encouraged, and, indeed, enlightened to do the right thing. It’s bad enough that NOM and its ilk violate the Golden Rule in imposing different treatment on gay couples seeking the legal commitment of marriage. We must not allow them to trash the basic rules of the American constitutional system or subvert the courts whose job it is to protect those rules, including constitutional safeguards, for all of us.
Evan Wolfson is the founder and executive director of Freedom to Marry.