Thursday, November 04, 2010

What's the Status of Varnum v. Brien After the Iowa Judicial Retention Election?

By Mike Dorf

In Tuesday's election, Iowa voters decided not to retain Chief Justice Marsha Ternus and Justices David Baker and Michael Streit of the state supreme court.  Based on exit polls and the campaign that preceded the election (as reported here), the voters' decision was pretty clearly a repudiation of the court's 2009 decision in Varnum v. Brien, which found a right to same-sex marriage in the Iowa Constitution.  Here I want to ask what effect the voters' decision will and should have on the legal status of same-sex marriage in Iowa.

1) Clearly the election supplies the remaining Justices--and whatever Justices are appointed to replace the ousted Justices--a prudential ground for seeking to overrule Varnum.  Doing so will help them keep their jobs.  But even for elected judges, it is presumably inappropriate to consider the voters' wishes so directly.  As I shall explain below, there are legitimate ways to take account of public opinion, but a simple calculation that a certain decision will be popular or unpopular is not generally thought consistent with the rule of law.  So, we should ask whether the voters' decision to dismiss three Justices supplies the remaining and new Justices any principled ground for overruling Varnum.

2) Had Varnum been directly rooted in notions of evolving values--in the way that the federal constitutional jurisprudence of the death penalty and of fundamental rights makes social attitudes relevant--it would be a straightforward matter to say that the court should now reconsider the ruling.  The logic would be that the court thought a right to same-sex marriage was fundamental to Iowans' understanding of "liberty" or some such term in the state constitution, but that the voters' reaction reveals that the court was mistaken.  Although the US Supreme Court did not put it exactly this way, that's more or less what happened with respect to the death penalty.  In 1972, in Furman v. Georgia, the Court invalidated then-extant death penalties.  Rather than simply accepting that decisions, many states then adopted new death penalty statutes.  Hence, in 1976, in Gregg v. Georgia, the Court upheld the death penalty. To be sure, Gregg did not overrule Furman.  Nonetheless, the difference in the Court's attitude almost certainly reflected the Justices' accounting for the popular understanding as manifest by legislation.

3) The foregoing analysis does not directly apply here, though, because Varnum relied on equal protection rather than a fundamental right to marry.  The court found that laws discriminating on the basis of sexual orientation trigger heightened judicial scrutiny under the Iowa Constitution.  Contemporary values are, of course, relevant to equal protection analysis.  As the court said in Varnum, "equal protection can only be defined by the standards of each generation."  Thus, the non-renewal vote arguably shows that by the standards of the current generation of Iowans, same-sex couples do not warrant the same right to marry as opposite-sex couples.

4) But seen in a different light, Tuesday's vote to fire the three Justices actually provides additional support for the result in Varnum.  It demonstrates that gays and lesbians continue to face discrimination and underscores the relative lack of political power of gays and lesbians--both factors that led the court to apply heightened scrutiny in Varnum in the central portion of the opinion.  At best, it seems, what the court learned about Iowans' attitudes from the non-retention vote was a wash.  Given that, the vote hardly counts as a sufficient reason to overcome stare decisis.

5) To be sure, the calculus would be different for a new Justice coming to the Iowa Supreme Court with a firm conviction that Varnum was wrong.  So the question arises whether the non-retention vote will result in the appointment of such Justices.  It appears that Iowa's lame-duck governor, Democrat Chet Culver, will appoint replacements.  Culver supported the retention of the three Justices and, if left to his druthers, would presumably appoint three like-minded replacements, given his opposition to legislative efforts to overturn
Varnum.  What should he do under the circumstances?  That question implicates an oddity of our public understanding of the relation between politics and law.  Judges are not supposed to rely directly on their own values in deciding cases, but we know that they do--perhaps because they can't avoid doing so--and so political actors who select judges are generally thought to be acting permissibly in considering the judicial philosophy and values of their prospective appointees.

6) I think Culver would be justified in ignoring the non-retention vote and simply appointing three Justices that he thinks well-qualified and who have what he regards as appropriate values, even if that means frustrating the evident intent of the voters.  Perhaps one could see the Iowa appointment/retention process as deliberately making it difficult to change the law by voting Justices and judges out of office.

7) But Culver would also be justified in placing some weight on the scale for the voters' evident preferences.  Even on prudential grounds alone we can imagine Culver worrying that appointing three relatively liberal Justices to replace the removed Justices would so anger the backers of the non-retention campaign, that they would pour even more money into it the next time, and keep going until they had packed the courts.  I suppose that if Culver were inclined to capitulate to avoid this even worse outcome, he might simply decline to appoint replacements, leaving that task to his successor, Republican Terry Branstad.

It's hard to imagine a Republican ceding the appointment opportunity to a Democrat, if the circumstances were reversed, but then, that difference seems to be generally characteristic of the two parties: Democrats try to hedge and win by losing, while Republicans go for the jugular and win by winning. 


Sam Rickless said...

Very nice post, Mike. There is only one thing I would take issue with. You write:

"Contemporary values are, of course, relevant to equal protection analysis. As the court said in Varnum, "equal protection can only be defined by the standards of each generation.""

If this were true, then Reed v. Reed might well have been wrong if it had been decided in 1850 or 1900, or maybe even 1940. Similarly, Brown might have been wrong if it had been decided in 1896. I can't accept either of these consequences. Contemporary values, understood as widely held beliefs about whether this or that form of discrimination is justified, should be irrelevant to equal protection analysis. The 14th amendment does not say that a State shall not deny to any person within its jurisdiction what is perceived by most people at the time to amount to equal protection of the laws. What people believe the amendment requires or permits is neither here nor there. It is an objective matter whether the ban on gay marriage discriminates against gays in violation of the EP clause. The fact of the matter is that it does. So there is no "wash" here. As you say, the recall vote is a reaffirmation of majority anti-gay sentiment, the presence of which means that gays do not possess the kind of political power that many take to be relevant to the issue of suspect classification.

Doron said...

Well done, Mike. As an outsider, I truly appreciate the legal (and logical) gymnastics you attempt in trying to justify what seems to me as a complete non-sequitur: The ELECTION of judges to a supreme court. If that were the case federally, then we would probably never had Brown, Roe, Lawrence v. Texas, and many others (although we would probably safely stay with Bush v. Gore and Citizens United). The Supreme Court safeguards not only the "majority rule" part of a constitutional democracy, but also its "human rights" part. As such, it cannot - and should not -- respond (and be accountable to) the popular will. The fact that it does makes it precisely what Hamilton wrote in Fed. 78 -- the least dangerous (and in a sense, most ineffective) branch. It is enough that two branches respond to popular will; there is no need for a third.

Michael C. Dorf said...

Sam: Your position is close to Dworkin's and calls to mind language the Supreme Court has sometimes used (e.g., "Plessy was wrong the day it was decided"). A judge could nonetheless reject your position for any number of reasons. Here are some possibilities: 1) The judge might be a moral skeptic, and think that terms like "equality" have no meaning beyond that given them by social consensus of the framing or later generations; 2) the judge might be a moral realist but follow Holmes in thinking that law's use of moral language instantiates something short of the full content of that language in other domains; or 3) the judge could be a moral realist but have epistemic doubt about his ability to reason to the correct moral outcome, and thus use contemporary consensus as a better proxy than--or at least a constraint on--his own moral reasoning. My point in the post was that even if the judge believes he has any of these or other reasons for thinking that contemporary values as expressed by the electorate count somewhat in favor of the overruling of Varnum, those reasons are outweighed by the other factors, on which you and I agree.

Doron: Just to be clear, in Iowa, a non-partisan committee proposes names to the Governor, who then appoints Supreme Court Justices; they are then subject to periodic retention elections. Other states have competitive elections for the judiciary.

Sam Rickless said...

Hi Mike,

Yes, my position is similar to Dworkin's, though I don't buy into the entire Dworkinian apparatus (which is another story). Sure, a judge could take issue with me (or Dworkin) in any of a number of ways. But I have never seen a decent argument for moral skepticism (the position of judge #1) or the position of legal pragmatism (which, I take it, is Holmes's position, give or take), while the arguments against these two positions are very powerful. Either position licenses what we all agree (and here, I include folks across the legal ideological spectrum) to be absurd results (e.g., that Brown was wrongly decided). The Bill of Rights is a document written by moral realists in terms that call for realistic construal. As a judge, I myself may be a moral skeptic or a pragmatist (I might not even believe in the existence of rights), but in my capacity as a judge reading the Bill of Rights, I should put these philosophical views of my own aside and put myself in the position of a realist. Judge #3 (the humble moral realist, who doubts whether s/he can discover the moral facts) is either overly pessimistic about the acuteness of her/his own moral faculties or simply needs more philosophical training. In any event, if these judges use contemporary beliefs as a proxy, then to my mind they are abdicating their function as judges under the constitution. The whole point of the Bill of Rights is to constrain the will of the majority (as Madison well explained). If one uses majority views about how provisions of the Bill of Rights should be applied as a proxy, then the Bill of Rights automatically loses its constraining function and might as well not be there.

Yes, indeed, I agree with everything else you say.

Joe said...

I wonder how Sam Rickless' remarks fit with Souter's recent Harvard address. FWIW, I think realistically contemporary values are "relevant" and time does affect the application of equal protection analysis.

"Democrats try to hedge and win by losing"

Well, not all of them. Republicans also "hedge" too. Angle refused to go on record on much of anything. Even on Election Night, Eric Cantor et. al. refused to discuss particulars on debt ceilings etc.

Dems do try to "hedge" in some ways. Often this is the more adult way of doing things, since real legislating involves compromises. But, true enough nuance often doesn't sell in close races.

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Michael Ejercito said...

Contemporary values, understood as widely held beliefs about whether this or that form of discrimination is justified, should be irrelevant to equal protection analysis.
But according to the Iowa Supreme Court in Varnum, they are not.
The fact of the matter is that it does.
I can not write for certain whether or not the original public understanding of Iowa's Equal Protection Clause is inconsistent with the historical and traditional definition of marriage.

But Baker v. Nelson and the Mormon anti-polygamy cases have already settled the 14th Amendment issue.