Former Iowa Supreme Court Justices Marsha Ternus and Michael Streit visited the UMKC School of Law last Friday to discuss the court’s 2009 ruling that struck down the state’s same-sex marriage ban.
UMKC OutLaws, a social and academic group for lesbian, gay, bisexual, transgender and allied law students, presented the panel.
The lecture is timely, in anticipation of the California Proposition 8 and federal Defense of Marriage Act hearings being presented before the U.S. Supreme Court March 26-27.
Missouri State Senator Jolie Justus moderated the discussion.
“This is the first time the U.S. Supreme Court has taken up the issue of same-sex marriage, and it will be interesting to see what happens,” said Jim Breckenridge, OutLaws treasurer and UMKC graduate. “What is particularly interesting is that the U.S. Supreme Court will have to use the same legal analysis that Justice Ternus and Streit had to use in Iowa.”
The Iowa Supreme Court case began as a lawsuit filed by six same-sex couples who were denied marriage licenses between November 2005 and January 2006 in Polk County, home of Des Moines.
The lawsuit went to the Polk County District Court in 2007, and Judge Robert Hanson ruled that denying same-sex couples marriage licenses was unconstitutional.
An appeal on behalf of Polk County sent the case, Varnum v. Brien, to the Iowa Supreme Court.
The court received 24 amicus curiae briefs—documents drafted by lawyers in support of one party.
After hearing the oral arguments, the court was able to make an immediate decision.
“We realized it was going to be a unanimous decision, and it was going to be based on equal protection,” Streit said. “It just struck us as shocking. We thought there would be someone in our group would have opposed.”
When the final decision was announced in April 2009, the Supreme Court’s website received 700,000 visits, causing the server to crash.
“It’s been ramped up since the ’90s, and now the [U.S.] Supreme Court is taking it,” Streit said of the same-sex marriage question. “I think they took it up for the chaos that will come up if they don’t—where we have pockets of marriage equality, you move to another state and you’re not married anymore.”
The judges’ controversial decision led to many politicians campaigning to remove Streit, Ternus and Justice David Baker from their seats on the court in the 2010 judicial retention election.
Though not all states hold retention elections, names of justices whose terms are up are placed on a ballot and voters are asked “Should judge (X) be allowed to serve another term?”
“It was pretty clear there was going to be ample, organized opposition to us,” said Ternus. “We were literally begged by the American Bar association not to campaign for our seats.”
After discussing the best course of action, Streit, Ternus and Baker decided not to fundraise to stay on the court. Out-of-state conservative groups in opposition with the Iowa decision campaigned in favor of the justices’ removal.
Ultimately, the three justices were voted out of their seats on Nov. 2, 2010. This marked the first instance of an Iowa Supreme Court justice not retaining his or her seat since the retention system was adopted in 1962.
Ternus compared this removal to any other job loss and said she did not regret the court ruling.
Neither justice believes the U.S. Supreme Court will rule unanimously in either case, but both are optimistic it will consider the same equal rights and due process factors as the Iowa ruling.
“It’s good to be aware of these issues and to have an idea of what’s going on politically, and how political movements affect courts,” Breckenridge said. “Traditionally, courts were thought of as cold reviewers of legal issues and not tied to political motives. As you could see from today’s discussion, this is beginning to change.”