Disorder in the Court
The Iowa Supreme Court publishes, on average, a little more than 100 decisions a year. Each ruling goes online first thing Friday mornings. When Varnum v. Brien went live at 8:15 A.M. April 3, 2009, the court's website crashed when more than a million visitors tried to read the opinion. In a unanimous decision, the seven supreme court justices--five Democratic and two Republican appointees--had ruled that Iowa's ban on marriage for same-sex couples violated the equal-protection clause of the state constitution. When county clerks began issuing marriage licenses three weeks later, Iowa became the third state with legalized same-sex marriage.
The Massachusetts and Connecticut courts had previously ruled that banning marriage for same-sex couples was unconstitutional. So had California, but in 2008 voters reversed that decision with Proposition 8. The location of those first rulings didn't surprise opponents of marriage equality. These were, after all, the states that had elected John Kerry and Nancy Pelosi. Iowa, though, was supposed to be different. It's smack-dab in the heartland. Home of John Wayne, Field of Dreams, and Captain James T. Kirk, the state is about as all-American as it gets. If Iowa ruled in favor of marriage equality, then maybe the movement wasn't confined to liberal redoubts on either coast.
The plaintiffs, six same-sex couples, were not among those clicking refresh that morning. They had sued the state in 2005. At the suggestion of one of their lawyers, Camilla Taylor from Lambda Legal, they went to the courthouse without their cell phones, where they waited for Taylor to announce the outcome in front of a throng of national media. "They understood that their tears in defeat or their thrill in victory would be meaningful in and of itself," she says. When Taylor announced the verdict, images of the couples with ear-to-ear grins, embracing each other and celebrating with their children, were sent around the world.
Opponents of gay marriage, though, were dismayed. None more so than Bob Vander Plaats, who had risen early that morning and driven three hours to join several evangelical pastors in praying outside the supreme court building. He learned of the decision when smiling gay-rights supporters streamed out of the courthouse. "The feeling was one I haven't felt very often," he says. "It was a void. It wasn't one of being angry, of being sad. It was void of emotion. I can't recall another time I've had that emotion. It was a dark time in Iowa's history."
A marginal political figure, Vander Plaats was already laying the groundwork for his third run for governor, but that morning he stayed on the sidelines as social conservatives held a press conference on the supreme court's steps. He didn't keep quiet for long, though. He made his feelings known when he appeared on a popular conservative talk-radio station later in the day. "This is what happens when you have the absence of leadership," he said. "I believe all of Iowa is going to get a wake-up call today and say, 'This is not who we are.'"
Vander Plaats lost the Republican nomination for governor yet again, but Varnum gave him the issue he had always been looking for. A year after the decision, he mobilized an unprecedented attack against Iowa's judiciary, which had been known for its lack of partisanship. With assistance from a powerful evangelical organization from out of state, he exploited an obscure clause of judicial selection and mounted a full-throttle assault against the supreme court judges who legalized same-sex marriage. No laws changed, but three of the judges lost their positions. The state's progressive community is still grappling with the question: How did a fringe political candidate upend what had once been a model of judicial independence?
The groundwork for the Varnum case had been laid two years before the lawsuit was filed in December 2005. After Massachusetts legalized same-sex marriage in 2003, other states--Maryland, New York, California--appeared ready to follow, but all of them were bastions of liberalism. Lambda Legal, the country's leading LGBT legal defense fund, wanted to target the Midwest. "We thought that it would be important," says Kevin Cathcart, Lambda Legal's executive director, "from a public-education point of view and from a law-reform point of view to show people that progress can be made not just in New England, the mid-Atlantic states, and not just on the West Coast. It would give gay people and our allies in the middle of the country a shot in the arm that victory and change is possible where they live."
Lambda Legal asked Taylor, who was based out of the organization's Chicago office and now directs its Marriage Project, to identify a Midwestern state where a lawsuit stood a strong chance of success. She did not have many choices. In 2004, Republicans--to increase turnout among social conservatives--had helped pass constitutional bans on same-sex marriage in 13 states. Iowa was not one of them.
Taylor had other reasons to consider Iowa. It is a solidly purple state that voted for Barack Obama in 2008, George W. Bush in 2004, and Al Gore in 2000. Although evangelical Christians make up a large bloc of the Republican Party in Iowa, a live-and-let-live populism pervades the state's politics.
The state also has a history of extending civil rights earlier than the federal government. In 1839, the Iowa Supreme Court's first opinion granted citizenship to a slave when he entered the territory from Illinois. Iowa had desegregated its schools by 1868; a year later, it became the first state to admit women to the bar. Iowa law also makes it difficult to amend the constitution. Unlike California, where voters changed the constitution six months after its supreme court legalized same-sex marriage, Iowa requires that an amendment pass both sides of the legislature in two consecutive sessions before it can be placed on the ballot.
But there was another argument for Lambda Legal to choose Iowa. Its courts were renowned for being free from political influence. The U.S. Chamber of Commerce ranks Iowa courts as the fifth fairest in the country. In an indication of the state's standing in the country's legal community, Iowa Supreme Court decisions are the fourth most cited by other states' courts, according to a study from the University of California, Davis.
The state owes that reputation to its 1962 adoption of the "Missouri Plan" for placing judges on the bench. Under the system, a panel of 15--seven selected by the governor, seven by the bar association, plus a sitting state supreme court justice--interviews potential judges on their experience and knowledge of the law. The panel is barred from asking interviewees their political affiliation. The governor picks from three finalists. Supreme court justices go on the ballot at the first general election after they are selected and every eight years after. Until 2010, Iowa's retention votes had always been ho-hum affairs. Only four lower-court judges had ever lost a retention vote, in each case because they were accused of malfeasance. A campaign had never been waged against a supreme court justice.
When Varnum came before the justices, national groups from the Human Rights Campaign to the Knights of Columbus flooded the court with amicus briefs. On the day of oral arguments, a winter storm hit Des Moines, and fewer spectators than expected gathered in the galleries. Because the justices asked extensive questions, the hearing lasted for almost two hours, twice as long as usual. By the time they were done, the courtroom was packed. "The judges were better prepared than probably any panel I've been in front of," says Dennis Johnson, whom Lambda Legal had brought in to represent the plaintiffs.
After every hearing, the justices slip out of their judicial robes and, if they have time, grab a cup of coffee before they meet in a small conference room on the fourth floor of the supreme court building. Clerks are barred. Justice Mark Cady, one of the two Republican appointees, had been randomly selected to write the majority opinion on the Varnum case, which meant that he would speak first. If any of the justices were going to find fault in the plaintiffs' interpretation of the constitution, it would likely be Cady, the strictest constitutionalist of the group. After laying out both sides' arguments, Cady announced he was ruling in favor of the plaintiffs. The justices went clockwise around the granite-topped table. They did not agree on every legal point, but after two hours, all of them had sided with the plaintiffs. "We went around the table, and we just pushed back and said, 'Jeez, this is going to be unanimous.' We were just shocked," a justice later told me.
Bob Vander Plaats lives in Sioux City, a town of 82,000 sequestered on the northwestern edge of the state near the Nebraska and South Dakota borders. The drive from Sioux City to Des Moines, Iowa's capital, is about the same as the one from Washington, D.C., to Manhattan, but culturally the cities are far apart. To oversimplify, Sioux City prides itself on its number of churches; Des Moines on its number of Starbucks outlets. Vander Plaats, who is 48 years old, grew up in Sheldon, an agricultural town of 5,000; he was one of eight kids in what he describes as a "very Christian home." He attended local Northwestern College on a basketball scholarship, and he still has the physique of a high-school baller--tall and lanky but not imposing. After graduation, he worked in high schools around the state, teaching business and coaching basketball before becoming a principal at age 29. On the stump, he speaks in a slow, lecturing manner as if he were still addressing a classroom full of recalcitrant students.
While sitting on a governor's council on children with disabilities, Vander Plaats decided to pursue politics. In 2002, he ran for the Republican nomination for governor and came in third. In 2006, he ran again but dropped out to serve as the party's lieutenant-governor nominee. Although the ticket lost the general election, he had become a favorite among social conservatives, and former Arkansas Governor Mike Huckabee tapped Vander Plaats as his Iowa state chairman in his run for the presidency. Huckabee's surprise victory in the 2008 caucuses imbued Vander Plaats with more clout than he'd ever had. Still, when he prepared to run for governor again in 2010, many observers dismissed him as a joke, the perpetual candidate who always loses.
Iowa Republicans divide roughly into two groups: the evangelical right devoted to social issues and fiscal conservatives concerned with minimal government. The pro-business Republicans have long run the party, but their power has waned. In the last decade, evangelicals have developed a sophisticated infrastructure that includes motivated volunteers, expertise in phone banking, and deep ties to the national Christian right, which has poured resources into Iowa because of its outsized influence on presidential campaigns. Evangelicals were 60 percent of the Republican caucus voters in 2008. U.S. Representative Steve King, a Tea Party favorite, is their most visible elected official, but they have also infiltrated the party's inner circle. Three years ago, Steve Scheffler, president of the evangelical group Iowa Faith and Freedom Coalition, displaced a moderate in the state's delegation to the Republican National Committee who had held the spot for 20 years.
Heading into the 2010 gubernatorial election, the moderate wing of the Iowa GOP was depleted, and it appeared Vander Plaats might back into the nomination. For the first time in his career, he had a galvanizing issue. Varnum was the sign of government overreach he had been warning about for years. At almost every campaign stop, he vowed that on his first day in office he would issue an executive order to halt marriage licenses for same-sex couples until the public voted on a constitutional amendment--an idea dismissed by legal scholars as outside the governor's authority.
Vander Plaats's extremism frightened Republican elder statesmen, who were convinced he would cost the party the general election despite the unpopularity of the incumbent Democratic governor. They were desperate for an alternative and found the perfect candidate in Terry Branstad. A four-term governor in the 1980s and 1990s, Branstad had left office during an economic boom and remained a beloved figure. The primary turned into an all-out war between the two wings of the party.
Branstad dismissed Vander Plaats's executive order as a fantasy. Vander Plaats hammered the former governor for being soft on gay marriage, emphasizing that Branstad had appointed two of the justices who had ruled on Varnum. With money, name recognition, and the party establishment on his side, Branstad was considered the favorite, but thanks to enthusiastic support from Christian activists and favorable coverage from WHO-AM, the state's most influential radio station, Vander Plaats ran a much more competitive race than anyone imagined. Branstad won with only 50 percent of the vote, while Vander Plaats gained 41 percent. If another social conservative hadn't siphoned off 9 percent, Vander Plaats might have won.
After the election, Vander Plaats found himself in political limbo. He had no desire to endorse Branstad, but he did not want to fade from the spotlight after outperforming expectations. Rumors circulated about a third-party gubernatorial run. Indeed, he says, the possibility crossed his mind before he decided not to pursue a campaign that had no shot of winning.
On August 6, Vander Plaats held a press conference on the steps of the supreme court. Instead of announcing that he would run for governor as an independent, he surprised everyone when he declared that he would spearhead an effort to remove the three supreme court justices up for retention in November: Chief Justice Marsha Ternus and Associate Justices David Baker and Michael Streit. "This election, in my opinion, to remove these judges," he said, "is one of, if not the, most important election in our country."
The immediate reaction was one of bewilderment. It was only three months before Election Day, and an all-out assault on supreme court justices was something new to Iowans. Not only did Vander Plaats need to convince voters that the judges must be removed; he had to teach them the mechanics of the retention vote, a matter so arcane that voters had to flip to the back page of the ballot to find the names of judges. Vander Plaats's new campaign was also strictly symbolic. Whatever the outcome, marriage equality would remain law. If he succeeded, the only change would be three new names added to the unemployment rolls. Liberals scoffed. Vander Plaats had never won an election, and Iowans, they were convinced, would never want to politicize their courts.
A few days before announcing the anti-retention campaign, Vander Plaats gathered evangelical allies to gauge their interest in removing the judges. The attendees were a who's who of activists. They included Chuck Hurley, head of the Iowa Family Policy Center, which had pledged to sit out the general election if Branstad won the nomination; Barbara Heki and Vicki Crawford from the Network of Iowa Christian Home Educators, a new group on the political scene, which had played a key role in Huckabee's victory; and Chuck Laudner, Republican Party of Iowa state director during the 2008 caucuses and a former chief of staff to Representative Steve King. Laudner agreed to serve as campaign manager for Iowa for Freedom, as Vander Plaats's organization would be called. Laudner was the original believer in the cause. He votes "no" on the retention of any judge on the ballot and had floated the idea of a campaign against the three judges back in February 2010. At that time, social conservative circles showed little interest in the effort.
What changed between February and August? Vander Plaats's presence certainly lent credibility, but the anti-retention campaign would not have gotten off the ground if an organization outside of Iowa hadn't stepped in. Although Vander Plaats insisted that he was leading a "grassroots" operation that was a pure product of Iowans' discontent, it was, in fact, an extension of the American Family Association (AFA). Iowa liberals claim that the entire campaign was an AFA invention, with Vander Plaats serving as a paid spokesperson, but it is unclear who approached whom. Records do, however, prove that once Iowa for Freedom was formed, it received all of its funding from the AFA. Its literature and ads included a disclaimer defining Iowa for Freedom as a "project" of the AFA.
The Reverend Donald Wildmon founded the American Family Association, originally called the National Federation for Decency, in 1977. Headquartered in Tupelo, Mississippi, the group runs a 200-station radio network across 33 states and claims it receives financial contributions from 180,000 supporters. The organization attracted national attention in 1989 when it joined Senator Jesse Helms of North Carolina in attacking the National Endowment for the Arts. Bryan Fischer, the AFA's policy director, is notorious for making inflammatory statements. He once said that the United States should forbid the construction of new mosques, because each "is dedicated to the overthrow of the American government." The immorality of homosexuality has been a constant topic. Fischer once explained that Adolf Hitler was gay and surrounded himself with gay soldiers, as "homosexual soldiers basically had no limits and the savagery and brutality they were willing to inflict on whomever Hitler sent them after." The group tells its members to boycott businesses that promote safe LGBT work environments, and Fischer has said homosexuals should not be teachers. In 2010, the Southern Poverty Law Center included the AFA on its list of hate groups.
For the AFA, the Iowa retention vote was not about three particular justices. Rather, it was a chance to make a statement on a favorite conservative issue: the activist judge. The specter of courts "creating" law has pervaded modern conservatism at least going back to Brown v. Board of Education and has been a primary focus of conservatives since Roe v. Wade. "For a decade or so," Hurley says, "the most frequent phone call we would get at election time was 'What are we going to do about the judges?'" But most of the decisions that offended conservatives came from the federal courts, which left the Christian right no avenue to confront judicial activism; once federal judges are in office, they are insulated from political pressure. Varnum, though, offered the AFA the perfect opportunity to organize against judicial activism. Removing the three justices might be symbolic, but it was a powerful symbol: State judges would know their jobs would be at stake when they ruled against the values social conservatives cherished.
From the beginning, the judges' supporters floundered. Numerous organizations came out and defended the merit-selection system--from the state Bar Association to the Interfaith Alliance of Iowa--but because they were all nonprofits, they were prevented from campaigning for the judges themselves. It wasn't until early September that Democratic operatives formed a direct advocacy organization called Fair Courts for Us. When the group approached national donors, though, their entreaties were dismissed--an early indication of the uphill struggle pro-retention forces would be facing. "The threat was not apparent," says Jeff Link, a strategist who worked for Fair Courts.
In contrast, several social-conservative groups joined the AFA in its effort to oust the judges. The National Organization for Marriage spent $635,627, almost all of it on TV ads. The Family Research Council contributed $55,996 and ran a "Judge Bus" tour in conjunction with Hurley's Iowa Family Policy Center. Vander Plaats led the tour, joined by figures like Steve King and former Pennsylvania Senator Rick Santorum. Republican presidential hopefuls Tim Pawlenty and Newt Gingrich lent their support when stumping in the state. Gingrich went even further, funneling $125,000 to the AFA to help launch the campaign. According to campaign-finance filings, the AFA only spent $171,025 on Vander Plaats's organization; the true figure, though, would be higher if the staffers they provided were included. All told, conservative groups poured in a little less than a million dollars--an unheard-of figure for an Iowa retention election and a kingly sum for the state's inexpensive media markets.
Fair Courts for Us only raised $366,000. For any voter tuning in, the imbalance in resources was clear. Iowa for Freedom had placed TV ads by early September, and the attacks bombarded viewers the rest of the fall. The pro-justice groups never made it past a few radio spots. Strapped for money, Fair Courts could only purchase airtime after each new check arrived, whereas Iowa for Freedom could map out a media strategy. Fair Courts tried to send a piece of mail to every voter who had requested an absentee ballot; Iowa for Freedom had the same idea, but its financial advantage allowed it to call every absentee voter.
Even if they'd had more money, the pro--retention groups would have been in trouble. They couldn't offer the same easy message as Vander Plaats. "A lot of people were trepidatious about making this about same-sex marriage," says Troy Price, executive director of One Iowa, the state's largest LGBT-rights group. "People had looked at other states and had seen what had happened, and they were afraid that if this was a straight-up referendum on Varnum, that would be why the judges were defeated."
Discarding the issue that most concerned liberals, Fair Courts offered instead a prolonged civics lesson on the need for judicial independence--which did not make for compelling 30-second commercials. "We were not as nimble as Vander Plaats," says Scott Brennan, a former Iowa Democratic Party chair who worked on the campaign. "We spent a lot of time talking about facts as opposed to attractive concepts, which is what Vander Plaats spent a lot more time doing."
The pro-retention side still might have prevailed if it could have presented a human face. But the judges refused to campaign--it would politicize the judiciary, and that was against their principles. When Vander Plaats announced his plans, the judges had discussed forming committees and campaigning to keep their seats. Although this would have been acceptable under the court's code of ethics, they never gave the idea serious consideration. Part of their decision was practical; unlike Vander Plaats, they didn't have an infrastructure at hand, and only one had ever run for office and that was 27 years earlier.
With each passing day, Vander Plaats's campaign seemed less and less implausible. Republican turnout was expected to be huge and, to the surprise of many, the retention vote dominated the attention of Iowans, much more so than the gubernatorial race, where Branstad was the heavy favorite. "It was a hot issue," strategist Link says. "People were talking about it at work. People mentioned that there were conversations about it at churches." According to a Des Moines Register poll conducted a few days before the election, the anti-retention forces held a statistically insignificant lead. On Election Day, though, it wasn't even close. Justices Baker and Streit lost by eight-point margins, Chief Justice Ternus by ten.
"We didn't think Iowa voters would ever swallow Vander Plaats's story, and I don't have that confidence anymore today," Justice Streit says. Seven months after the election, he is still angry--about the lack of support he and his fellow justices received from groups that promised it, about the bind he and his fellow justices were put in. We are sitting in the offices of Ahlers and Cooney, the Des Moines law firm where he is of counsel. Sixty-one years old, Streit has been a prominent member of Iowa's legal community for most of his adult life. He's both forceful and gregarious, and it is easy to understand why he was a popular judge.
Since he left office in January, Streit has been the most vocal of the defeated judges. In fact, his eagerness to go after Vander Plaats and the AFA makes one wonder how he remained silent during the campaign. "The AFA hired him to be the face of Iowa for Freedom," Streit says of Vander Plaats. "They maintained until the very end that this was a grassroots campaign--it wasn't. There was no grass or roots."
Streit epitomized the nonpartisan court. Bran-stad nominated him for two positions on the lower courts before Governor Tom Vilsack, a Democrat, elevated him to the supreme court in 2001. Vander Plaats, though, painted Streit not just as an overreaching liberal but as an elitist autocrat far removed from normal Iowans. When he and his fellow justices shied away from public attention, they played right into Vander Plaats's strategy; Vander Plaats was then free to portray them any way he wanted. On the other hand, if the justices had responded to the attacks--introduced themselves to voters on TV, planted yard signs--they wouldn't have been the disembodied figures voters could so easily dismiss. But for Streit, Baker, and Ternus, such an action would have led to other, more elemental quandaries.
"If we had done what we should have done, that is, form committees, raise money, and just run some commercials," Streit says, "this court system would have been changed drastically. Our biggest stock-in-trade for the court system is our credibility, our integrity, and our ability to be fair and impartial to all people. That is slowly but surely being whittled away by us being dragged into partisan elections and/or elections where money is involved."
Two concerns arise when a court is politicized: money and electoral pledges. Once judges accept campaign donations, impartiality loses any semblance of legitimacy. When an environmental group sues an oil company, neither side's lawyers want to worry if their argument has been jeopardized because opposing counsel contributed to the judge's re-election campaign. Judges are expected to recuse themselves if a conflict of interest arises, but Iowa, like most states, has a vague definition for what constitutes such a conflict.
Positions staked out during a campaign pose an even graver threat to a jurist's independence. Is the candidate for or against the Affordable Care Act? Does he think the national debt should be reduced through higher taxes or spending cuts? It's essential for voters to know what kinds of policies a politician would pursue. The same standard, though, can't be applied to judges. They are meant to be impartial referees who treat each case as a unique instance, not a chance to apply their broad ideological perspective. Campaigns also force judges to take simplified stances on complex issues. A judge might pose with police officers to present a tough-on-crime image during a campaign. Is that person then capable of rendering an unbiased opinion when a case involving police abuse comes before her?
"When you get involved in politics, you get labeled. You label yourself, or you let other people label you," Streit says. "You have expectations that you've raised in other people's minds on how you're going to behave, and you will try to reach those expectations."
The more Streit speaks of the retention election, the more his anger gives way to resignation. The world he grew up in, the world he believed in--where judges were removed from the rough-and-tumble of politics--is losing sway, and he isn't sure it can be regained.
"It is not up to the people to determine what our Constitution means," Streit says. "If that were the case, we would not have integrated schools, we would not have integrated lunch counters, we would not have women voting. All those civil rights pioneered by the courts, if they were left up to the people, would be different."
The retention election transformed Vander Plaats's reputation. The candidate who had never won office is now a political figure whose blessings presidential candidates seek. He has become the de facto head of Iowa's Tea Party. Shortly after the election, he launched a new organization called The Family Leader and announced a "presidential lecture series" that would feature all the major Republican candidates. The political newspaper The Hill named Vander Plaats, alongside Chris Christie and Sarah Palin, on its list of "10 coveted endorsements for Republicans running for president."
In July, he asked presidential candidates to sign a pledge that opposed same-sex marriage but that also stated that African American families were better off during slavery than they are during Obama's presidency. It's been Vander Plaats's one misstep. All the candidates except for Michele Bachmann and Rick Santorum have refused to sign the pledge. The retention campaign has turned into a rallying cry for the Republican presidential candidates in 2011. "I love the backbone of Iowans who stand for marriage as one man and one woman," Michele Bachmann said in Ames just before she won the Iowa Straw Poll in early August. "Believe me, you set every judge in this country quaking when you did not retain those three judges."
Once the caucuses are over in 2012, Vander Plaats will need a topic to keep his name in the headlines, especially if he plans yet another run for governor in 2014. Targeting David Wiggins, the next Varnum judge up for retention, would be a logical move, and Vander Plaats is already leveling threats. "What role I'll take personally I'm not sure yet," he says. "But I do believe he should be held accountable."
If Vander Plaats does go after Wiggins in 2012, though, he will face a tougher opponent than he did in 2010. The pro-judge activists drew a number of lessons from their defeat. They've been holding meetings to discuss forming a new organization to replace the disjointed collection of groups that stumbled last time around. They also believe that they will be able to raise considerably more money for their cause. But the biggest difference may be the candidate himself. Wiggins has a fiery temperament, and many, including his former colleague, Justice Streit, predict that he will not stay silent if attacked. "I think he is going to have to run some commercials," Streit says, "and explain to people, 'Here is who I am, and here's what I stand for.'"
When I met with Justice Wiggins at his office in the supreme court building, he spent most of the hour lauding Iowa's history of judicial independence at the forefront of civil rights. That Wiggins would speak at all indicates that he has begun to contemplate his next retention vote. He and the three other remaining Varnum judges have started to shift tactics, making a conscious effort to increase their public presence. The judicial code of ethics states that a justice cannot campaign unless there is an active opposition, which grants Wiggins some time before he must decide.
"Right now, I'm just doing my job," Wiggins told me. "I don't know what I'm going to do. I don't know if I'm going to campaign. I don't know if there is going to be a campaign against me. I can tell you for certain I am going to be on the ballot and for certain if there is a campaign against me, I'm going to have to make a decision on whether to do what the other people did or whether to form a campaign committee."
The defeat of his three colleagues, he acknowledges, has already left a mark. "They took the position that judges should not get involved in politics. They maintained their integrity," he says. "And sometimes you lose your job by doing the right thing."
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