Varnum v. Brien

  • November 7, 2012

    by Jeremy Leaming

    State court judges in Iowa and Florida remain on the bench despite the fevered and well-funded efforts to remove them because of their involvement in rulings that rankled conservatives.

    In Iowa, State Supreme Court Justice David Wiggins, who was part of the majority in the 2009 Varnum v. Brien decision that supported marriage equality, retained his seat with about 55 percent of the vote. In Iowa 50 percent of the vote is needed to hold judicial seats. Some of the same organizations and individuals who successfully removed three other Iowa Supreme Court justices in 2010 – again for their involvement in advancing marriage equality – were targeting Wiggins. Typically judicial retention votes are intended for removing judges from the bench because of ethical breaches, corruption or incompetence. But religious right groups such as the National Organization for Marriage, the American Family Association and the so-called Iowans for Freedom committee abused the retention vote to go after judges for doing their jobs. But their efforts this time faltered.  

    Religious right activist Bob Vander Plaats, also involved with the Iowans freedom group, told the Des Moines Register that Wiggins’ retention vote of nearly 55 percent was “not a great validation for Justice Wiggins.”

    The newspaper noted that the other judges up for retention votes, but not targeted by the religious groups, retained their high court seats with vote “totals of more than 74 percent.” The Register surmises that the lower vote for Wiggins (pictured) might fuel another effort by religious right groups to target the other justices involved in the Varnum majority when they face retention votes in 2016. Plaats refused to speculate on those justices.

    In Florida an effort funded by a Super Pac of the billionaire rightwing Koch brothers also flopped. The brothers’ Super Pac had urged voters to remove three Florida Supreme Court justices, primarily for their involvement in scuttling a 2010 ballot measure declaring that Affordable Care Act would not the law in the Florida. (This summer, the U.S. Supreme Court upheld the constitutionality of the law’s integral provision, the one requiring most Americans starting carrying a minimum amount of health care insurance in 2014.)

    But Justices R. Fred Lewis, Barbara Pariente and Peggy Quince “easily” survived the retention votes, The Miami Heraldreports. As in Iowa, the justices only need a 50 percent vote to retain their seats. Despite “an unprecedented campaign” to dislodge the justices, The Herald reported that all three received “about two-thirds of the vote, with most votes counted.”

  • July 14, 2011
    Guest Post

    By Craig J. Konnoth, Legal Research Fellow, The Williams Institute, UCLA School of Law. Mr. Konnoth's views are his own, and not those of any institutions or activities in which he is involved.


    New York marks the fifth state in a row in which marriage equality has been achieved legislatively rather than through state court intervention: soon after Varnum v. Brien in Iowa, Vermont, New Hampshire, Maine and the District of Columbia all passed marriage recognition bills for same-sex couples legislatively (though Maine’s law was later overturned by voter referendum). This is part of a pattern: since Iowa, all other relationship recognition victories have been legislative: Rhode Island, Hawaii, Illinois and Delaware passed civil union laws; Washington, Wisconsin, and Nevada recognized domestic partnerships, and Colorado passed a designated beneficiaries bill. The only court victory on state recognition of same-sex marriage has been federal, with a district court striking down Proposition 8 in California. Contrast with early victories which were all court based – including marriage in Hawaii in 1993 (repealed by referendum) and Massachusetts (2003) and civil unions (Vermont), or events leading up to Iowa when the supreme courts of Connecticut and California also recognized marriage rights in quick succession. 

    The issue is not that court-based strategies are important, as some commentators have argued. There have been numerous high-profile developments regarding marriage rights in the federal arena, including in immigration, bankruptcy, district and appellate courts. Yet these concern federal laws and benefits that spouses enjoy in the areas of bankruptcy, immigration, and taxation, and thus differ from the Proposition 8 litigation. However, is the battle for state marriage rights in state courts over?

    The answer depends on how broadly you define the struggle for marriage equality. If one is simply talking about going to state court, and filing suit for the right to marry under the state constitution, the answer, I would argue, is probably “yes.” As of today, thirty states have banned marriage recognition by state constitutional amendment. In the remaining twenty states, six already recognize marriage rights. The remaining fourteen states include three states in which the supreme courts have already rejected challenges (Washington, New Jersey, Maryland, though activists recently re-filed in New Jersey, a possible exception), four other states (Wyoming, Minnesota, Indiana and Rhode Island) in which courts are Republican dominated (or dominated by Republican appointees –hardly an exact predictor of judicial voting patterns, but not an insignificant one either), and in another state, Maine, voters rejected marriage equality at the ballot, possibly making a court wary of going the other way on the issue. Finally, Minnesota and North Carolina seek to pass constitutional amendments banning marriage equality. The five remaining states, Pennsylvania, West Virginia, Delaware, New Mexico and Illinois, are not necessarily the best candidates for litigation, when the other options are also considered. Thus, in short, victories in these types of cases will be fewer and further between: the most promising litigation, I would argue, has already been filed.