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Ousted judge discusses religion in law

Oct. 27, 2011

By Victoria Davis

Many understand that religion often motivates opposition to same-sex marriages both, directly and indirectly. In 2009, the Iowa Supreme Court legalized gay marriage and argued that the opponents cannot use religious objections to justify a ban on same-sex marriage under the Iowa Constitution.

Oct. 21, a forum was held at Cleveland State University to discuss politicization of judicial elections and its effect on judicial independence and LGBT rights. On the panel sat Marsha K. Ternus, former Chief Justice of the Iowa Supreme Court; Camilla Taylor, Lambda legal attorney and marriage project director; Daniel Tokaji, Ohio State University law professor; Susan J. Becker, Cleveland Marshall College of Law professor; and Matthew W. Green, Cleveland Marshall College of Law professor and panel moderator.

Ternus spoke passionately about the subject.

“These concepts, judicial independence and the threat posed by politicized judicial elections may sound like abstract concepts to you, but they’re not very abstract to me,” Ternus said. “I have lived them, or shall I say, I have survived them.

In the Varnum v. Brien case, a civil rights action lawsuit filed in the Polk County District Court, six same sex couples were not permitted to marry in Iowa. The 12 plantiffs challenged the statute, claiming the same-sex marriage ban violates certain liberty and equality rights under the Iowa Constitution, and the legislative and executive actions discriminated against them on bases which include discrimination.

Under the equal protection and due process clauses of the Iowa Constitution, the marriage statute, which was amended in 1998 defining marriage as a union only between a man and a woman, was declared unconstitutional. Summary judgement was granted to the plantiffs. Under equal protection, a state must treat an individual or class of individuals the same as it treats other individuals or classes in like circumstances, a guarantee under the 14th amendment to the United States Constitution.

In the unprecedented campaign launched against the three justices, by special interest groups which included the AFA Action Inc., an affiliate of the American Family Association (AFA), a Mississippi based Christian group, the campaign, Iowa for Freedom, aimed to oust the individuals with a view that their ruling was contrary to God’s law.

The campaign against the justices maintained a purpose to send a message to judges in Iowa and across the country that they cannot ignore the will of the people. The AFA has a mission to inform, equip and activate individuals to strengthen the moral foundations of American culture.

In response to the campaign, the justices decided not to retaliate.

“As for the justices themselves, we decided not to form campaign committees and not to engage in fundraising. This decision reflected our role as judges. Judges must be fair and impartial”, said Ternus. “We decided that we would not contribute to the politicization of the judiciary in Iowa even though we knew this decision could cost us our jobs.”

Retention elections are non partisan. Judges do not campaign with the affiliation of the democratic or republican party. They may seek endorsement from individuals but they do not receive party endorsement. They may not receive money from political parties. A judge running for retention must receive 60 percent of the vote in order to be retained.

Each of the three justices, Marsha K. Ternus, Michael J. Streit and David L. Baker, received about 45 percent of the vote.

Retention elections can pose a threat to judges who are being targeted by special interest groups based on decisions which are legally correct but politically or socially unpopular.

One may ask: does this cause judges to be apprehensive about protecting the rights of minorities such as LGBT’s due to fear of being voted out of office?

“My fear is that efforts to intimidate judiciary will over time destroy the ability and willingness of judges to do their duty as faithful guardians of the constitution, “ said Ternus. “It should come as no surprise that judges are most at risk when they uphold the rights of politically unpopular minorities against the wishes of the majority.”

Judicial independence expresses the ideal state of the judicial branch of government, encompassing the idea that individual judges and the judicial branch should work free of ideological influence. Under judicial independence, a judge seeks to obtain decisonal independence, with the ability to make decisions based solely on facts and the rule of law, free from political and social influence. Furthermore, establishing institutional independence, separate from the executive and legislative branches of government.

“Judge Ternus’s observation is 100 percent accurate”, said Becker.” Alexander Hamilton, one of this country’s founding fathers, recognized that a truly independent judiciary, one that is free of fear of retaliation for making unpopular decisions, is the key to protecting the constitutional rights of minorities in this country.”

Questions raised during the discussion include the following, should justices be accountable to those who shout the loudest or make the most threats?, Should judges be accountable to the majority? If so, what happens to the minority? and what happens to the judges responsibility to uphold the law and the constitution? Many believe the ousting of the justices was unfair and violated judicial independence.

“I completely agree with Chief Justice Ternus, said Tokaji, “When judges are voted out of office because a majority doesn’t like one of their decisions, it tears at the very fabric of our democracy. The framers of our constitution meant the courts to protect all citizens against the tyranny of the majority. Judges can’t fill this role, if they are forced to look over their shoulders to see if they’re being chased by an angry electorate.”

The opposition of same-sex marriage is expected to continue. It is only one aspect of a larger movement to mount religious views of evangelical Christians. There is great debate over whether biblical guidance is relevant when it comes to law.
“If the day comes when judges make decisions as politicians or theologians, this society and our democracy will be in serious trouble”, said Ternus.

It is believed that if judges ignore the rule of law to uphold their religious beliefs, the system of democracy will be jeopardized.

“Judges take an oath to uphold and defend the constitution and other laws without regard for who the parties are or whether the decisions they render will be popular with voters”, said Becker. “If judges make politicized decisions to ensure that will be re-elected, or if judges ignore the rule in law in favor of their personal religious beliefs, then our entire system is doomed to failure, she said.”