Another contest is going on this election season that has little to do with marriage equality directly. It is one that infuriates me. I am referring to the effort to oust Iowa Supreme Court judge, David Wiggins. Same-sex marriage was legalized in Iowa following the unanimous ruling of the Iowa Supreme Court in Varnum v. Brien on April 3, 2009. The Roman Catholic Church hierarchy was particularly displeased.
In retaliation, National Organization for Marriage (as a proxy for the US Conference of Catholic Bishops) organized a well financed campaign to oust three Iowa judges who were up for a retention vote in 2010. Robert George’s American Principles Project also provided considerable resources to the campaign. The three were dismissed by Iowa voters marking the
first time an Iowa Supreme Court justice was not retained since the
retention system was adopted for Iowa justices in 1962.
Furthermore, judges generally do not campaign to retain their seats and did not do so in Iowa in 2010. Doing so would tarnish the dignity of the court. Therefore, almost any well funded and organized effort to oust a judge is going to be successful. As the American Bar Association Journal noted in January, 2011:
Reactions to the elections were immediate. Some praised the election
results as a victory against judicial activism and promised they would
be repeated elsewhere across the country. Others decried them as a
direct threat to judicial independence due to the politicization of
judicial selection by special interest groups, many of them out of
state, who funded the anti-retention campaign. A few contended that this
election would give pause to judges before deciding future
The journal concluded that Iowa was a “2010 outlier.” Yet, here we are again, facing the same situation. This time, NOM has enlisted the assistance of Rick Santorum to incite the electoral opprobrium. Retention elections were never intended for this purpose. This short-circuits the appropriate process which is to seek a state constitutional amendment. NOM’s objectives are perfectly transparent. They want to punish judges for making a decision that is contrary to their religious views and they want to intimidate other sitting judges elsewhere who might be facing a similar decision. That is not how the system is supposed to work. Our judicial system is supposed to be as apolitical and independent as possible.
Lawyers comprise less than 0.4% of the population which means that approximately 96% of the electorate are unable to make a professional assessment of judges up for retention. Furthermore, a trained lawyer would make a determination based solely on the merits of the decisions that a judge was responsible for. The 96% is basing its decision on whether they like or dislike the decisions. As a lawyer, Robby George should oppose such efforts. Sadly, he does not.
This has the effect of submitting decisions regarding minority rights to the majority without regard to the constitutional or legal issues involved. What is of particular concern to me is the influence of one particular religious group, the Catholic Church, over matters of state. Without considerable push-back, they have the resources to affect a considerable amount of public policy; often in opposition to their own members. The financial resources of National Organization for Marriage seem limited only by the number of items on their agenda.