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.