Same-Sex Marriage and the War on Our Courts

Legislative efforts to punish judges for their rulings on the issue are destructive to an essential institution.
March 12, 2015
By Jamie Barnett  |  Contributor
Jamie Barnett, a retired Navy rear admiral and attorney, is a member of the board of directors of Justice at Stake.
By Liz Seaton  |  Contributor
Liz Seaton, an attorney, is deputy executive director of Justice at Stake.

Bombarded by daily headlines, it's easy to forget that the U.S. Supreme Court has not yet ruled on the constitutionality of states denying marriage to same-sex couples. And while all eyes are on Alabama's high-profile struggle over issuing marriage licenses, it's even easier to be unaware that in a growing number of states politicians are mounting attacks to subvert what impartial courts have done or to thwart future court rulings.

The reality in many states is now this: Legislators are pushing bills to intimidate, punish or fire public employees, including judges, who recognize or grant marriage licenses to same-sex couples. This follows threats by legislators to impeach judges over single rulings they disagree with. In the wake of judges overturning state bans on marriage for same-sex couples, these impeachment calls have multiplied.

As attorneys, we have fought against discrimination. And seeing these assaults on courts reminds us of twin truths: First, our courts occupy a unique role, not only as impartial protectors of rights but as an independent check on the executive and legislative branches. Second, it is an ugly fact that opponents of equal rights may turn on the institutions that defend all of our rights and seek to circumvent or cripple them.

Regardless of which political flank is attacking our courts, it upsets this system of checks and balances if elected politicians try to manipulate judges and if they attempt to strip a court of its authority or nullify its judgments.

Consider some of the bills that have been introduced in state legislatures: In South Carolina, proposed legislation would force state courts to automatically dismiss any case challenging its ban on marriage for same-sex couples; any judge who did not immediately dismiss such a case would be removed from the case and his or her pay would be docked. There is similar legislation in Texas, and a version in Oklahoma goes further to say that if a judge grants a marriage license for a same-sex couple, the judge could be removed from office.

In Iowa, a bill would bar court registrars from granting these marriage licenses until a constitutional amendment is voted upon by the state's electorate. The legislation also would strip the Iowa Supreme Court of appellate review of the marriage-license ban.

Iowa judges are no strangers to political reprisal. Two years ago, an amendment sought to slash, by 85 percent, the pay of four Iowa Supreme Court justices over a unanimous 2009 court opinion invalidating a ban on marriage for same-sex couples. Legislators earlier had filed impeachment articles against these justices.

That attack died, although three other justices were voted out in 2010 following a well-financed ouster campaign. Efforts to remove another justice failed in 2012, but only after state leaders waged a campaign to defend him and court leaders undertook public education to help citizens better understand courts.

Efforts to impeach judges over a controversial ruling are particularly troubling. They ignore the U.S. Constitution and are destructive to our justice system. The Constitution limits impeachment to "high crimes and misdemeanors." Whether courtroom decisions may seem progressive or conservative, they are not criminal. They are not grounds for impeachment.

And there is a practical side too. If one judge were impeached over a decision, who honestly thinks that would be the end? In a hyperpartisan political climate, impeachment hearings could become all too common. No credible system of justice could survive such a political wrecking ball.

It may seem sad, even heartbreaking, that this vitriol against courts and judges is engendered by adults' desires to form loving unions. But emotions aside, it's outrageous that sitting judges who decide cases based on the law and constitution should fear reprisal from politicians. And when judges themselves act like politicians, it honestly doesn't help.

The Supreme Court will ultimately decide whether same-sex couples have a constitutional right to marry. Whichever way the court rules, controversy over the issue is unlikely to end. But our democracy has remained strong based on liberty under law, where our judiciary is free from political interference, threats of impeachment for judicial decisions, and outright bullying. Anyone who engages in such tactics is undermining our system of fair and impartial courts and therefore our American system of government. To preserve this essential pillar of our democracy, the bullying of judges must stop.