Frank Bruni - Justice Denied

Op-Ed Columnist

Frank Bruni, NY Times

 

Heartland Justice

By FRANK BRUNI

Published: May 5, 2012

 

WE tend to think of people who play pivotal roles in the advancement of social justice — and who pay steep prices for it — as passionate advocates with intense connections to their cause. We imagine them as crusaders.

Marsha Ternus wasn’t. She just tried to be fair.

The first woman ever to preside over the Iowa Supreme Court, she was asked three years ago to rule on a challenge to an Iowa statute banning same-sex marriage. She looked at the case and at the law and deemed the ban a violation of equal-protection language in the state’s Constitution, which said that no privileges should be reserved for a limited class of citizens. Her six fellow justices agreed. Their unanimous decision is why Iowa is among the minority of states in which two men or two women can marry.

It’s also why Ternus lost her job. The following year, she and two other justices came up for what are usually pro forma retention votes, and Iowans booted them from the bench. National groups on the religious right had mounted a furious campaign against them, calling them members of “an arrogant elite” with a “radical political and social agenda.”

“We laughed about that,” Ternus told me, referring to the accusation, not its career-ending consequence. “I mean, honestly, I can remember the first time somebody used the words ‘gay marriage.’ And I said, ‘What is that?’ ”

Which happened... when?

“Sadly, not that long ago,” she said, looking embarrassed.

It was news to Ternus when I mentioned that on Tuesday, North Carolinians would be voting on a constitutional same-sex marriage ban, which will probably pass. She doesn’t track the issue, though it continues to dominate the news, as it did last week when an openly gay aide supportive of marriage equality quit Mitt Romney’s presidential campaign. And she has rarely given interviews about the ouster of her and her colleagues David Baker and Michael Streit, who have been similarly reticent. None of them, she said, wanted their hurt feelings in the foreground.

“The important thing that happened wasn’t us losing our jobs,” she said over dinner here on Thursday. “It’s what it represents about what people think of justice and the rule of law and constitutional rights.”

Ternus, who is 60, agreed to meet with me because on Monday, she, Baker and Streit are receiving Profile in Courage awards from the John F. Kennedy Library Foundation in Boston. The timing, she said, felt right.

But she worried that she was talking too much about herself and too far beyond her authority.

“I’m just a judge from Iowa,” she said, speaking of the past in the present tense. “What do I know?” She had just been to the hairdresser’s — her flight to Boston was in the morning — and was allowing herself a Key lime martini.

Until she encountered so much religious opposition to the court’s decision, some of it from Catholics, she was a loyal member of her local Catholic parish. Two of her three children graduated from Catholic high schools. One went to Notre Dame University.

Ternus’s parents and grandparents and great-grandparents were all farmers, and she’s the oldest of six children reared among fields of corn and soybeans, with a wood-burning stove in the kitchen.

“Don’t make me sound like ‘Little House on the Prairie,’ ” she pleaded. She said her childhood wasn’t nearly as austere as that.

At the University of Iowa, she majored in home economics. Law school entered her thoughts only when a job after college as a bank teller bored her to tears.

I asked about gay people in her life. She mentioned a man who lived in a nearby apartment at college and an architect she has worked with. “But was my best friend gay or anything like that?” she said. “No.” Nor are any relatives, as far as she knows.

She said that after the ruling, “when I saw and heard the reaction of people whom it actually impacted, I just couldn’t — I mean — it was amazing to me. I just had never been conscious of how meaningful it was to gay and lesbian couples.”

Ternus spent her early legal career as a litigator specializing in insurance law. She was appointed to the Supreme Court, her first judgeship, in 1993, by a Republican governor. In Iowa, voters weigh in at later intervals, usually every eight years, but many don’t bother to. Their rejection of Ternus, Baker and Streit was the first such dismissal of Supreme Court justices in the history of the state’s current system.

SHE said that she and the other justices knew there was risk in taking on the same-sex marriage case and began researching it months before hearing arguments. They agonized over the wording of the decision.

As for the decision itself, they learned in the first hours of discussion that none of them saw any way to square the marriage ban with equal-protection language. “Everyone’s jaws dropped — that we had a unanimous decision,” she recalled.

Theodore B. Olson, one of the lawyers who has argued the high-profile case against California’s same-sex marriage prohibition, praised the Iowa justices’ ruling for its painstaking thoroughness.

“What the Iowa Supreme Court did — and they did a terrific job of this — was to go through the objections systematically,” he told me.

That same-sex marriage offended tradition? Well, many musty traditions proved indefensible over time. That marriage was for procreation? Childless couples abounded. That it undermined religious tenets? The court was dealing with civil marriage, not church weddings. That it devalued male-female unions, as conservative religious groups claim?

Ternus told me: “If these organizations are really worried about marriage, rather than being motivated by bigotry and hatred, then they would be going after the divorce laws. But they’re not.”

What most concerns her, though, is what she sees as the politicization of the judiciary, with elected officials and partisan groups firing warning shots at judges and screening them for preordained allegiances. The judiciary, she said, can check and balance legislatures — and mete out true justice — only by being less casually reactive to public opinion.

A registered independent, she said that she and her fellow justices divorced politics from their thinking.

Referring to her subsequent punishment at the polls, she said, “If people think that what happened here doesn’t influence other judges, they’re really naïve.”

She now gives speeches (usually for no charge) on that topic. Even so she has time for once neglected chores.

“The first week I was off, I took everything out of the kitchen cupboards and I washed them all down,” she said. “And then I cleaned every closet in the house. And I’m telling you, the pleasure that gave me was indescribable.”

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