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Decade after same-sex marriage ruling, former justice has no regrets

'It was our job,' the now-Cedar Rapids lawyer says

Former Iowa Supreme Court Justice David Baker, photographed at his Cedar Rapids law office last Tuesday. Baker was one of three justices who lost their retention election in the wake of a 2009 court decision legalizing same-sex marriage in Iowa. (Liz Martin/The Gazette)
Former Iowa Supreme Court Justice David Baker, photographed at his Cedar Rapids law office last Tuesday. Baker was one of three justices who lost their retention election in the wake of a 2009 court decision legalizing same-sex marriage in Iowa. (Liz Martin/The Gazette)
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CEDAR RAPIDS — David Baker admits he was “terribly disappointed” when the public voted in 2010 to kick him off the Iowa Supreme Court for having joined other justices in overturning a law banning same-sex marriage in the state 10 years ago this month.

“We knew the risk … we saw the polling but even though you know it’s coming, it’s still shocking,” said Baker, 66, who was appointed to the court in 2008 by Democratic then-Gov. Chet Culver and now has a mediation practice in Cedar Rapids. “But you can’t allow that to affect how you analyze a case.”

The morning after the retention vote, he was left with the realization that he “had to figure out what I was going to do with the rest of my life,” Baker said.

He probably commiserated with former Chief Justice Marsha Ternus and former Justice Michael Streit, also ousted in the retention election, he said, but doesn’t remember for sure.

Even if he had known he would be ousted because of the ruling, that wouldn’t have changed his mind. The state law that gave marriage rights only to heterosexual couples violated the equal protection clause of the Iowa Constitution, he said.

“None of us regretted our decision. We got it right,” Baker said.

SERVICE CONTINUES

His career path and ambition led Baker to the bench because he “loved the intellectual challenge” of appellate courts and figuring out how the law works. He became a lawyer, following in his father’s footsteps, then pursued a judgeship because he wanted to serve.

In 2005, he was appointed to the 6th Judicial District Court; in 2006 to the Iowa Court of Appeals; and in 2008 to the Iowa Supreme Court.

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His public service didn’t end with his ouster. He has continued to be involved, whether it be on the Iowa Judicial Nominating Commission, the Cedar Rapids Board of Ethics or teaching at the University of Iowa College of Law.

For Baker, a self-described “curmudgeon” who does not like to share feelings, talking about how he personally was affected by the public vote that got national attention is difficult.

He has spoken around the nation of his concerns about how out-of-state money was the driving force behind the campaign to vote out the three justices — out of seven total — who faced retention that year.

Baker said the organized campaign against the judges was more than an “assault” on Iowa courts. Those special interest groups, he said, were sending a message to all judges.

Baker recalled that during one trip out of state addressing concerns over judicial independence, a judge told him that the ruling was correct but he wouldn’t have ruled that way out of fear of losing his seat.

Baker noted that he, Ternus and Streit made a decision to not campaign to keep their jobs leading up to the retention vote. He said he never would have asked lawyers and others to raise money for him — not wanting to appear beholden to anyone who might come before the court.

Politicizing Courts

Politicizing the courts has been a common theme across the country before and after the same-sex marriage ruling and, Baker said, continues today in Iowa.

Legislative Democrats this year assailed Republican plans to take away the role of the Iowa Bar in selecting half the members of a panel that vets applicants for the Iowa Supreme Court.

Critics said Republican advocates of that plan were sore over the 2009 same-sex marriage ruling and a more recent ruling striking down a restriction that effectively would end most abortions in Iowa.

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In the closing hours of this year’s legislative session, lawmakers dropped the original plan and settled on one that maintains lawyers on the panel but gives the governor more power.

Baker said the court system with an independent judiciary was established by the Founding Fathers as a “check on the legislative and executive powers — not to impose the will of the people when it concerns the Bill of Rights.”

He said there already are two branches of government for the “will of the people.”

INSIDE THE RULING

In the same-sex marriage case, each justice had gone through “three-ring binders of 5,000 pages” of documents before hearing oral arguments Dec. 9, 2008.

After hearing about two hours of arguments, the justices went to the conference room to discuss the issue. Baker said the case had been randomly assigned to Chief Justice Mark Cady, which meant he would give his assessment first and eventually write the opinion. After Cady spoke, justices went counterclockwise around the table.

“It’s the first time you hear what they others are thinking,” Baker said. “We all agreed it was equal protection.”

In the 2009 opinion, Cady wrote, “We are firmly convinced the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective.”

With that decision, Iowa became the third state in the nation to allow same-sex marriage. Six years later, in 2015, the U.S. Supreme Court allowed same-sex marriage nationwide.

Baker said the Iowa justices usually follow the same process with every opinion, but did a few things differently with this one because of its importance.

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The case, Varnum v. Brien, included a Cedar Rapids couple among the plaintiffs suing a Polk County recorder for denying their marriage license applications.

This process was more like a “group project,” Baker said, to ensure nothing was missed.

“The writing part took a lot of time because we knew it would be read by the public, the press, critics and legal scholars,” Baker said. “As a group, we put the draft on a screen and went over it line by line.”

A day before the ruling was released, the court informed the Iowa Division of Criminal Investigation it would be coming because the justices knew this issue was controversial. Justices were aware of the backlash that 5th Judicial District Judge Robert Hanson had experienced after he made his 2017 ruling at the district court level.

Earlier this month, at a UI law school event marking the 10th anniversary of Varnum, Hanson told students about receiving hate mail, which he laminated and keeps in a binder. He also played a recording of messages threatening him and disparaging gay people.

The state Supreme Court as an institution probably received some threats, Baker said, but he didn’t personally. Instead, people came up to him on the street and thanked him for his part in the decision. Some were gay couples or individuals, others had gay children and said “they felt like they could talk about it, and their kids didn’t have to be embarrassed” about being gay.

‘IT WAS OUR JOB’

In 2010, when Baker’s term on the court ended, he started teaching law at the UI and then started his mediation practice.

In 2012, he got a call from the John F. Kennedy Presidential Library, asking him if someone could give him a call to talk about judicial independence.

Then, a few days later, he got a call from Caroline Kennedy, telling him he, Ternus and Streit were being honored for their judicial courage.

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They each were honored with the Profile in Courage Award, the same award Speaker of the House Nancy Pelosi received this year.

“I was thinking ‘Why me?’ Baker said. “It was our job.”

In May 2012, during a ceremony in Boston, Kennedy said that “they don’t think they did anything special; they were just doing their job. But for public officials, just doing their job often demands a special kind of courage. Standing up for human rights requires courage. Serving the interest of all citizens, not just the majority, requires courage.”

Baker said he was honored and “overwhelmed” by the award and to meet Kennedy, but didn’t view what they did as “brave … I see it as having integrity as a judge.”

“It was never a courageous act,” Baker said. “We were following the rule of law and upheld the constitution.”

• Comments: (319) 398-8318; trish.mehaffey@thegazette.com

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