Iowa’s Supreme Court Chief Justice Marsha Ternus fired back at critics Tuesday evening in the Sun Room of the Memorial Union, equating their rhetoric with the same comments made in the aftermath of the 1954 case of Brown v. Board of Education of Topeka.

“Despite the well-established authority the courts have the power of judicial review, critics now exclaim that courts overstepped their power when they void statutes for constitutional infirmities,” Ternus said. “Critics claim these decisions usurped the legislature’s power, again these claims are wrong.”

Much of the time during Ternus’ lecture was spent deflecting criticisms of the court stemming from the Varnum v. Brien decision, in which the court declared a ban on same-sex marriage violated Iowa’s equal protection clause of the state constitution.

Ternus said the court simply exercised its authority as the judicial branch.

“The power of the courts to exercise judicial review was also understood by the authors of our state constitution,” Ternus said. “Critics act as if this doctrine is late breaking news.”

Dianne Bystrom, director of the Catt Center for Women and Politics, said she never imagined campaigns on the retention issue would amount, and she is taken back by the split shown in the recent Des Moines Register poll.

“I think the justice made a really good point; this is about a civil contract, this is not about a religious ceremony,” Bystrom said. “And religious ceremonies are still operating the same. There are some churches that don’t marry same-sex couples and some that do, so they weren’t forced to.”

Bystrom said it’s important to recognize a civil contract with the county recorder is a separate issue than a religious ceremony performed in a church. She added the Varnum decision was very narrow and does not hurt Iowa in the long run.

The armies forming on both sides

Ternus also directly spoke about Cornerstone World Outreach, a Sioux City church whose pastoral staff sent out a mass letter encouraging other churches to join them in actively encouraging a vote against the retention of the three state Supreme Court justices.

“The pastor claims this law is unconstitutional, and has vowed to challenge the law,” Ternus said. “Where? In the courts. It seems the pastor is quite comfortable arguing the will of the people as expressed in this federal law can be declared void by the courts. So it seems to me the real criticism by the court’s critics is not the court had no power to declare an unconstitutional statute void — the court clearly did have that authority. Rather the critics simply disagree with the result.”

The Rev. Cary Gordon’s letter complains federal law prohibiting a 501(c)3 nonprofit organization, like religious institutions, which are tax exempt, from endorsing a vote for or against a candidate is unconstitutional. Americans United for Separation of Church & State filed a formal complaint with the Internal Revenue Service over Gordon’s politicking, and Gordon said he prayed the IRS would “mercilessly attack” his church so he can fight it in the U.S. Supreme Court.

A second Iowa pastor, Jeff Mullen, senior pastor of Point of Grace Church in Waukee, launched IowaPastors.com and IowaJudges.com which provide material to “educate” church members about the “out-of-control” judges. Some of the material on the website was provided by the conservative Iowa Faith & Freedom Coalition.

But groups are forming to protect the justices, like Iowans For Fair and Impartial Courts and Justice, Not Politics.

Justice, Not Politics is chaired by two former Iowa lieutenant governors —Joy Corning, a Republican who served in Branstad’s third and fourth terms in the 1990s, and Sally Pederson, a Democrat who served with Tom Vilsack.

To date, more than 40 groups joined the coalition as well as at least 81 community leaders, a majority of them religious heads of Jewish and Christian congregations.

Connie Ryan Terrell, executive director of Justice, Not Politics and Interfaith Alliance of Iowa, said many were concerned about the attacks on the judiciary prior to failed Republican gubernatorial candidate Bob Vander Plaats and Iowa For Freedom launching a full campaign against the justices.

“We really felt a grass-roots effort was warranted and the best way to address the issues,” Terrell said. “The coalition itself is broad-based … we wanted it to be clear we are a non-partisan coalition.”

Bob Vander Plaats and Iowa For Freedom have “mischaracterized” the role of the judiciary in Iowa, Terrell said.

“Intimidating judges are the goal of out-of-state interest groups,” Ternus declared, referring to the American Family Association, headquartered in Tupelo, Miss., which along with the National Organization for Marriage funds Iowa For Freedom’s campaign to oust the justices.

The Iowa Bar Association endorsed the retention of the three Iowa justices, David Baker, Michael Streit and Ternus, giving them ratings of 82.8 percent, 83.7 percent and 72 percent, respectively.

Former Republican Gov. Robert Ray, along with his former Lt. Gov. Arthur Neu, Republican, former first lady Christie Vilsack — a Democrat — and Sioux City attorney Dan Moore, a Republican who was a part of the Bob Vander Plaats for Governor campaign, announced Wednesday they came together to form the Fair Courts for Us Committee.

“The attack groups are running big-budget ad campaigns and deliberately misleading the public about the law and the Supreme Court decision,” the group said in a news release. 

Changing the nomination process

Iowans should take reflection on whether we should dismantle our highly regarded merit-based selection over one decision, Ternus said to the crowd. She worried about the discussion of changing the way justices are selected, as Branstad said he was open to.

Iowa got rid of popular elections for judges in 1962 in favor of a merit-based selection. Supreme Court justices are selected by a nominating commission consisting of equal parts of civilians and those with legal backgrounds.

Some critics of the process allege the commission is currently full of registered Democrats, but Ternus said this reminded her of a 1986 Des Moines Register editorial which complained Branstad packed it with Republicans. However, she said during her rigorous examination, the commission remained professional and objective and had no reason to doubt the current members.

“I think the groups that have formed to support retention of the justices reflect concern among a broad selection of Iowans how this election is being misused,” said Allan Vestal, dean of the Drake University Law School. “It’s a natural reaction for people to want to support the system of merit selection and to support the three justices who are on the ballot.”

Vestal said the groups like Justice, Not Politics are indicative of the fact retentions have always been bipartisan.

“If the campaigns against retention are successful it will mean the vote has been politicized,” Vestal said, adding it would be the first step toward degrading the merit-based selection process of Iowa’s Supreme Court justices. “It’s the first step in, I think, a very unwise progression.”

Ternus also pointed out the U.S. Chamber of Commerce, typically unfriendly to liberals, ranks Iowa’s judges as fourth in the nation for impartiality in 2010.

Ternus is the first female chief justice to serve on Iowa’s high court. She was first nominated to the court by Branstad in 1983 and became chief justice in 2006.