December 2010 Church & State | Featured

About a week before the Nov. 2 election, Family Research Council President Tony Perkins sent an e-mail to supporters plugging a bus trip to Des Moines, Iowa.

Why was the Washington, D.C.-based FRC road-tripping in the Hawkeye State?

The message, sent under the auspices of FRC Action, laid it out: Three Iowa Supreme Court justices who had voted to strike down the state’s ban on same-sex marriage in 2009 were facing retention elections. FRC and its Religious Right allies aimed to take them all out.

And they did. On Election Day, Chief Justice Marsha Ternus and Justices Michael Streit and David Baker failed to garner 50 percent support to stay on the court.

The removal of the three does not affect the same-sex marriage ruling, but it will likely have the Religious Right’s intended effect: sending a message to judges in other states who face elections.

“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 at Irvine’s School of Law told The New York Times. “Something like this really does chill other judges.”

The FRC, the National Organization for Marriage (NOM) and other Religious Right groups began taking aim at the judges months ago. They poured money into the state, organized in fundamentalist churches and blitzed Iowa with a bus tour.

The purple bus, emblazoned with the words “Replace, Renew, Restore” and photos of the three targeted judges, made stops in 20 Iowa communities over four days in late October. FRC and NOM were so proud of the bus that they created a special Web site ( full of pictures and messages sent via Twitter. (You could even “like” the bus on Facebook.)

Some clergy jumped into the effort, heedless of the legal consequences of church-based politicking. In Sioux City, the Rev. Cary K. Gordon of Cornerstone World Outreach Church implored other preachers to attack the judges from the pulpit.

Americans United reported Cornerstone to the Internal Revenue Service. (See “Bully Pulpit,” November 2010 Church & State.)

For years, Religious Right groups have fulminated against “activist judges” who issue rulings the far right dislikes. Their success in Iowa will undoubtedly spur them to move on to other states and threaten more judges.

The effect could be profound. Although federal judges are appointed by the president (with review by the Senate), many state judges are elected. A 2008 New York Times story cited the National Center for State Courts, which says that 87 percent of judges in the states face some type of election. The Center says 39 states elect some or all judges.

In Iowa, judicial candidates are nominated by a committee of lawyers and sent to the governor, who chooses to appoint them or not.

To further complicate matters, Iowa is undergoing political change. Gov. Chet Culver, a Democrat, was defeated by former governor Terry Branstad last month. Branstad courted and worked closely with Religious Right groups during his time in office in the 1990s. It’s likely they’ll demand input into the judicial replacement process.

During the anti-judge campaign, FRC leaders railed against out-of-state gay-rights groups that they said were attempting to influence the outcome. But the FRC isn’t based in Iowa either and featured Louis Gohmert, a member of Congress from Texas, as one of its speakers.

The National Organization for Marriage, which is based in Princeton, N.J., poured $600,000 into the effort. The Christian Post reported that this was the largest donation made to the campaign.

The Des Moines Register reported that the vote “triggered a battle never seen in Iowa’s judicial history. Television, radio and Internet ads portrayed the justices as both activists and referees. Robo-calls urged a ‘no’ vote. U.S. Rep. Steve King embarked on a statewide bus tour to rally ‘no’ voters.”

Exulting in the victory, King remarked, “It’s something that will send a resounding message all across the country, and I think that every judge in the judicial branch of every state will learn about this decision by Iowans. We’ve been a little soft on the social issues lately, and we turned the corner last night.”

But the effort was not a total success. Two state judges in Polk County who were also targeted for issuing rulings favorable to same-sex couples were retained by overwhelming margins.

While the Religious Right celebrated the defeat of the Supreme Court judges, the Register sounded a note of caution.

“Tuesday’s vote was a body blow to the principle of an independent judiciary insulated from popular sentiment,” asserted the newspaper in an editorial. “If punishing judges for unpopular decisions becomes common, the people of Iowa will be the ultimate losers. That includes those who initiated this campaign, because their rights may one day be on the line.”