Justices' decision based on rule of law

By Marsha Ternus, Michael Streit and David Baker


Iowa justices are required to take an oath to uphold the Constitution of the state of Iowa. Yet, once again, a justice of the Iowa Supreme Court is being targeted for doing just that.

America’s system of justice is based on the rule of law, a process of governing by laws that are applied fairly and uniformly to all people. The rule of law protects the civil, political, economic and social rights of all citizens — not just the rights of the most vocal, the most popular, or the most powerful. Applying the rule of law is the duty of the courts.

Our Founding Fathers considered judicial independence an indispensable part of the rule of law. “Judicial independence” means a judiciary that is committed to the rule of law, independent of — free of — outside influence, whether that influence is from a political party or politician, a private interest or popular opinion.

Alexander Hamilton stated in the Federalist Papers that “[t]he complete independence of the courts of justice [was] essential.” He recognized it was the duty of courts “to declare all acts contrary to the manifest tenor of the Constitution void.” “Without this,” he said, “all the reservations of particular rights or privileges would amount to nothing.”

Our Constitution says

The Iowa Constitution expressly adopted this view: “This constitution shall be the supreme law of the land,” and “any law inconsistent therewith, shall be void.”

Constitutional provisions are given meaning when the courts resolve disputes between citizens and their government, including claims by citizens that the government has violated their constitutional rights. Regardless of whether a particular result will be popular, courts must protect the supremacy of the constitution by declaring an unconstitutional statute void. That is what the Iowa Constitution requires and that is what justices promise to do in their oath of office.

In Varnum v. Brien, a group of Iowans claimed a provision of Iowa’s marriage statute was inconsistent with the Iowa Constitution. Iowa’s marriage statute states: “Marriage is a civil contract,” but “[o]nly a marriage between a male and a female is valid.” Relying on this provision, the Polk County recorder refused to issue marriage licenses to six same-sex couples. They sued the recorder, claiming this statutory prohibition violated the equality clause in the Iowa Constitution, which states: “[T]he general assembly shall not grant to any citizen or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.”

Many marriage benefits


More than 200 benefits and privileges are given to married couples under Iowa law. The court considered the constitutionality of the Legislature’s restriction of these benefits and privileges to a limited class of citizens, using the same analysis the court had applied in many prior cases. The court unanimously concluded in 2009 that the statutory restriction violated the Iowa Constitution’s equality clause. Because the Iowa Constitution expressly states that any law inconsistent with the constitution is void, i.e., not valid or legally binding, the Supreme Court declared the offending statute unenforceable and required the recorder to issue the licenses.

It is important to understand what the court decided. The law at issue in the Varnum case governed a civil contract, not the religious institution of marriage. The court pointed this out, stating that “religious doctrine and views contrary to this [holding] are unaffected,” and “[a] religious denomination can still define marriage as a union between a man and a woman.”

The justices did not decide the Varnum case as politicians, turning to public opinion polls and party platforms for direction. Nor did the justices decide the case as theologians, looking to the Bible for guidance. As noted in our decision, justices are civil judges who are not permitted to resolve religious debates or base rulings on religious doctrines. Our decision was based on the rule of law, nothing more and nothing less.

No freedoms denied

The Iowa Supreme Court took away no one’s liberties or freedoms when it held the statute unconstitutional. To the contrary, the rights of same-sex couples to the benefits that flow from the civil contract of marriage were upheld.

The views of individuals and religious institutions were unaffected by this decision and their religious freedom to define the religious institution of marriage as only between one man and one woman was expressly preserved. Nor did the court exceed its proper role by declaring the law void and unenforceable, as that is what the constitution requires.

In the end, the question facing Iowans is simple: Do residents want judges who issue rulings based upon public opinion polls, campaign contributions and political intimidation, or judges who issue impartial rulings based upon the rule of law?

The Varnum case was correctly decided under the rule of law and provides no basis for a “no” vote in the retention election. Justice David Wiggins is an intelligent, hardworking and fair jurist and deserves to be retained on the Iowa Supreme Court.

Marsha Ternus, Michael Streit and David Baker are former Iowa Supreme Court justices removed by voters in the 2010 general election retention vote. Comments:, or 



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