Iowa judges fear anti-gay attacks in upcoming retention elections

by on July 20, 2010  •  In Judiciary, Marriage

According to this article in the Des Moines Register, judges in Iowa who will have retention votes in November are apprehensive about anti-gay groups targeting them in the campaign. Three of the justices on the Iowa Supreme Court (which unanimously invalidated the exclusion of gay couples from marriage) will be on the ballot, as will the trial court judge who also ruled that the exclusion violated the state's constitution.

Jeffrey Neary, [a] northwest Iowa judge, didn't know how to respond to the newspaper ads, radio spots or "Vote No" pamphlets calling for his removal after he divorced a lesbian couple in 2003. Judicial ethics rules banned campaigning, except to respond to an attack. Direct fundraising was not an option.

Neary survived that campaign against him six years ago, but judges who face retention votes this year are braced for similar political attacks, in response to the Iowa Supreme Court decision that made same-sex marriage legal.

At least one group that tried to impeach a Polk County judge in 2007 over a same-sex marriage ruling is considering an effort this fall to boot judges off the bench. Others who opposed that decision say they will encourage supporters to vote "no" on all judges who appear on the November ballot….

Legal observers predict the Varnum vs. Brien same-sex marriage case will inspire last-minute calls to unseat judges, potentially politicizing the retention votes of jurists who are supposed to remain impartial. The ruling's opponents say that the justices have already injected politics into the court and exceeded their constitutional power.

"I'm not at all hesitant to say I expect attacks," said Rachel Paine Caufield, a Drake University assistant professor who studies judicial selection and retention. "We've seen it in other states, and we've seen that they often come late in the game."

Among those on the ballot this November: Iowa Supreme Court Chief Justice Marsha Ternus, and Associate Justices Michael Streit and David Baker — all part of the seven-member court that last year unanimously overturned the state's decade-old gay marriage ban. Each declined to be interviewed for this article.

Neary, appointed by Gov. Tom Vilsack in 2002, was challenged after he divorced a Sioux City lesbian couple that had formed a civil union in Vermont. Neary later said he did not realize the couple was same-sex, and amended his ruling to say he had only ended a civil union.

The 2003 decision — before gay marriage was legal in Iowa — triggered an outcry from social conservatives and calls by Rep. Steve King, a Republican, to vote Neary off the bench. Neary held his seat with 59 percent support, but that was the narrowest margin of any Iowa judge retained in the past decade, a Des Moines Register review of voting data shows. Judges in that 2004 election were retained with an average of 77 percent support, a figure that has changed little in recent years.

But Neary didn't forget the campaign against him. "I will tell you, honestly, that for two years after my retention election, I thought carefully about how I was going to rule on things," said Neary, who stands for retention again this year. "I don't want to say that I changed rulings, because I don't think I ever did. But you ask yourself: Who's going to care about this decision?"

Judge Robert Hanson said in an interview that he anticipates some effort before the November election to remove him….The Polk County district judge made the initial ruling in the landmark Varnum vs. Brien case, deciding that same-sex couples could not be denied licenses to marry. Iowa's Supreme Court unanimously upheld his decision.

Hanson was appointed by Gov. Tom Vilsack in 2003 and was retained the next year with 79 percent support. But, he said, after the ruling he was contacted by individuals who appeared to believe that the judge himself had initiated the lawsuit.

Political attacks on judges are rare in Iowa, said Dwight James, a Des Moines lawyer who heads an Iowa State Bar Association panel on judicial independence. But, James said, he anticipates attacks this year on the three Supreme Court justices who face retention, and possibly on judges who have performed same-sex marriages. Judges who marry heterosexual couples must also perform marriage ceremonies for gay couples, the Iowa attorney general's office has said….


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