The National Organization for Marriage conducted a dark and troubling experiment in Iowa on Tuesday. Funded by secret donors from out of state, NOM and other anti-gay groups poured an estimated $1 million into attack ads in a bold attempt to punish three Supreme Court justices for ruling in 2009 that the state constitution applied equally to heterosexuals and homosexuals, and that both groups have an equal right to marry. The effects of this experiment were intended to resonate beyond the boundaries of Iowa, and to send a warning to judges from coast-to-coast: If you try to defend the constitutional rights of this particular minority, your seat on the bench will be at risk.
Even more distressingly, NOM’s experiment in monkey-wrenching one of the basic checks and balances of American democracy — an independent judiciary — was triumphantly successful. For the first time since the state’s current system was adopted in 1962, Iowa voters chose to remove a sitting Supreme Court justice; and in this case, not one, but three: Chief Justice Marsha Ternus, and Justices David Baker and Michael Streit.
The Sioux City businessman who allied with NOM to lead the effort after a failed Republican campaign for governor, Bob Vander Plaats, was exultant. “It’s the people rising up, and having a voice for freedom, and holding an out-of-control court in check,” he told reporters. “I think we sent Iowa a message, but also sent the country a message.” On his blog today, Former Speaker of the House, Republican Newt Gingrich, praised the “unprecedented and largely unreported decision.”
Never mind that the removal of the judges threatens to impede the operation of the judiciary in Iowa, denying justice not only to the minority targeted by NOM’s mystery donors, but to anyone else in the state court system. Never mind that the state’s governor, Chet Culver — also defeated by a Republican on Tuesday — is unlikely to fill those vacancies on the bench before his term ends in January, further tampering with the due process of law in the state. Never mind that John Adams, one of the founding fathers who people like Gingrich and Sarah Palin like to invoke at any opportunity, believed that a judiciary protected from the political storms that rage around the contentious issues of the day is one of the foundations of a stable democracy:
The dignity and stability of government in all its branches, the morals of the people, and every blessing of society depend so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checks upon that. The judges, therefore, should be always men of learning and experience in the laws, of exemplary morals, great patience, calmness, coolness, and attention. Their minds should not be distracted with jarring interests; they should not be dependent upon any man, or body of men.
The sweeping ramifications of NOM’s success in Iowa this week are not lost on legal authorities. “What is so disturbing about this is that it really might cause judges in the future to be less willing to protect minorities out of fear that they might be voted out of office,” Erwin Chemerinsky, dean of the University of California, Irvine, School of Law, told the New York Times. “Something like this really does chill other judges.”
Though the judges themselves declined to mount a campaign in their self-defense or talk to the press until it was too late, they issued a statement after the vote decrying the “unprecedented attack by out-of-state special interest groups” and warning that the continued existence of a fair and impartial judiciary “will require more than the integrity and fortitude of individual judges, it will require the steadfast support of the people.” Though a loss for gay marriage in the Corn Belt may seem unsurprising, the unprecedented nature of this vote was particularly notable in Iowa, where the Supreme Court has traditionally led shifts in public opinion on issues like slavery and segregation.
NOM’s ever-escalating assault against the lives, liberties, and happiness of gay people in America is a perfect example of the type of “jarring interest” that Adams sought to protect the judicial branch of government against. The very name of the organization is a damned lie, as it exists solely to prevent one stigmatized minority from enjoying the many quantifiable benefits of lifelong commitment, which include not only tax breaks and the ability to visit a spouse in the hospital if he or she gets sick, but improved mental and physical health and more robust connections with family and community. (Naming the group the National Organization for Marriage is like christening a group devoted to keeping minority or disabled students out of public schools the National Organization for Education.)
If NOM didn’t cloak its mission in intentionally misleading, focus-grouped, Frank Luntz-approved slogans about defending “freedom” and “common sense” from the “overreaching” of “activist judges,” its grotesque nature would be readily apparent. Imagine an organization founded for the sole purpose of getting state laws passed barring Jews, those of Japanese descent, or left-handed people from settling down and taking vows of matrimony.
Yes, NOM claims to have a more high-minded purpose than that, though its leaders have a hard time articulating it beyond vague sloganeering. The group’s ubiquitous founder, National Review pundit Maggie Gallagher, took advantage of the occasion of a recent, highly-publicized series of suicides by gay teens to declare that she has “no blood” on her hands, in the kind of ghoulish public pronouncement that could have been ghostwritten by Pontius Pilate himself. In her statement, Gallagher relieved herself of the burden of ever being taken seriously again as a lay interpreter of social science — her former career goal as the author of such unheeded bids for bestsellerdom as Enemies of Eros and The Age of Unwed Mothers — by claiming that “four years of legalized gay marriage” in Massachusetts should have been enough to slash the gay teen suicide rate there.
Imagine that kind of specious reasoning applied to the life and death of your own child. Yet groups like NOM, Focus on the Family, and the Family Research Council are routinely given a pass in the mainstream press for retailing crap faux-science and simply making things up in the interest of the media maintaining an illusion of balance on hot-button issues.
I agree with Newt Gingrich on one point: What happened in Iowa on Tuesday deserves more attention from the press and public, in the same way that cancer cells that have taken root in the body and flourished into a tumor with its own blood supply deserve more attention. It’s time for our collective immune system to focus on these toxic intruders roaming from state to state with their multimillion-dollar war chest, metastasizing in a series of mean-spirited ballot measures that — particularly as of Tuesday’s vote — strike at the very core of our democracy.
Even if I was a staunch red-state conservative who was personally uncomfortable with the notion of same-sex marriage, I’d be taken aback by NOM’s careless disregard for the safeguards of liberty that the Founders fought so hard to insulate from the fickle ambitions of opportunists like Gallagher and Vander Plaats. (Though the original decision was unanimous with seven justices presiding, University of Iowa law professor Todd Pettys told the Wall Street Journal that he doesn’t expect the remaining jurists to face threats when they come up for retention, because the “out-of-state money will be finding new homes by then.”)
What does “states’ rights” mean when NOM can parachute into your state, emboldened with cash from an elusive network of partisan and religious groups like the Mormon Church, to rewrite your constitution or unseat judges for making a decision they don’t approve of? Precedents like this are not only regrettable if you happen to fall on the wrong side of them — they’re fundamentally dangerous to the integrity of our nation, as John Adams knew.
For some liberals, it’s tempting to dismiss NOM as a sour joke that’s well past its sell-by date: Don’t they realize that young people don’t care about gay marriage? Chill out, folks — demographic attrition will do the job; just wait long enough for the rabid homophobes to die off and we’ll all be cool. In their view, NOM is a nothing more than a fumbling Hail Mary pass in the waning twilight of the Falwell-era culture wars. After all, don’t they let gays appear on TV now?
Far from becoming a more and more impotent threat, however, NOM — fed by a shadowy network of donors who may have nothing personal against the gay dude who cuts their hair or interns in their office, you see, but are happy to stoke bigotry to boost turnouts on Election Day — is morphing and evolving into something much more pervasively destructive: a late-stage cancer in the American body politic. It’s time for a thorough biopsy of this malignancy before it becomes terminal.