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Vote on Iowa justice seen as test for gay marriage

Published: Tuesday, Oct. 9, 2012 11:24 a.m. CDT

IOWA CITY (AP) — Iowa Supreme Court Justice David Wiggins isn’t well known outside the legal community of his state, and even inside that group, isn’t particularly popular.

But the question of whether he should keep his job has become one of the most fiercely contested judicial issues on the Nov. 6 ballot because of what he symbolizes in the debate over gay marriage and the role of courts.

Three years ago, Wiggins and his six colleagues ruled that the state’s law banning gay marriage was unconstitutional, which made Iowa the third state to recognize same-sex unions and the first outside the coasts. The decision triggered a furor among conservatives, who mounted an aggressive campaign a year later to defeat three of the justices whose terms came up for ballot review.

Now, the future of Wiggins, whose term comes up this year, is sparking an even bigger battle as liberal groups and lawyers shocked by the outcome in 2010 fight back on his behalf. The race is being watched not only as barometer of the public’s changing attitude toward gay marriage but as a message for judges who might take up similar cases in the future.

“2010 was like a hand grenade into the Supreme Court chambers and we don’t want to have that repeated,” said Des Moines attorney Guy Cook, president-elect of the Iowa State Bar Association, which is campaigning to support Wiggins.

The opposing sides have launched “Vote Yes” and “No Wiggins” campaigns and are spending heavily to get their messages out. The National Organization for Marriage provided $100,000 for an anti-Wiggins television ad this week and conservative stars Rick Santorum and Bobby Jindal led a cross-state bus tour denouncing Wiggins as a liberal judicial activist. At each stop, they were trailed by a bus carrying members of the bar who defended Wiggins against that accusation.

The passion around an obscure state justice captures the heightened tension this year over gay marriage, with questions on the ballot in four states and surveys showing that public opinion is shifting on the subject.

Along with the ballot issues in Minnesota, Maine, Maryland and Washington, the Iowa vote could contribute to “a watershed moment” for gay rights, said longtime activist Donna Red Wing, executive director of One Iowa, a gay rights group supporting Wiggins.

“The reality is, if you’re living in Alabama or South Carolina, you don’t look to California or New York as your yardstick. But you do look to Iowa. If it can happen here, it can happen in those other places. That’s part of the importance,” said Red Wing.

During the bus tour, National Organization for Marriage President Brian Brown said that defeating the justices shows that gay marriage isn’t inevitable and can’t be imposed by the courts.

“Change the course of history. Take a bold stand,” he told supporters. “Do not allow activist judges to rewrite your constitution. Hold them accountable and the world will be watching.”

More state court decisions on gay marriage lawsuits are expected in coming years. Currently, six states and the District of Columbia permit same-sex marriage while more than 30 prohibit it.

Iowans did not embrace the Iowa court’s ruling when it came down following a lawsuit brought by gay couples who were denied marriage licenses. Justices up for retention in 2010 were easily defeated, receiving about 45 percent of the vote, the first judicial ousters since the state adopted a merit-selection system in 1962.

But views have changed as more than 4,500 same-sex couples have married since 2009. A Des Moines Register poll in February found that voters overwhelmingly opposed amending the constitution to ban gay marriage. Those surveyed were split on the 2009 ruling and one-third said they “don’t care much” about the issue.

Several other factors also may help Wiggins, who was appointed by Democratic Gov. Tom Vilsack in 2003, as he seeks a second eight-year term. His supporters are running a stronger campaign than the ineffective pro-retention effort in 2010. The presidential race also means the electorate will be larger and more liberal than the one that turned out for the Republican-dominated midterm election.

“It makes it more difficult,” concedes Bob Vander Plaats, whose group, the Family Leader, leads the opposition. He said that “with limited resources,” it would be harder to get an anti-Wiggins message out as Iowa gets saturated with ads for presidential and congressional races.

The bar’s boost for Wiggins comes even though its members like him less than many of his colleagues. A survey conducted by the bar every two years on the performance of judges up for retention found that 63 percent of lawyers believed Wiggins should be retained, second lowest of 74 judges on the ballot. Lawyers gave Wiggins only adequate marks for his temperament and demeanor, and backers concede he can be brusque.

The process of replacing his ousted colleagues also brought Wiggins criticism. He chaired the committee that interviewed candidates and recommended nine finalists, including one woman, to Republican Gov. Terry Branstad. Branstad appointed three white men, making the court one of the only ones in the nation without a female member.

Wiggins is honoring the tradition in which Iowa judges do not campaign. However, he wrote recently in the Register, “I do not want Iowa o end up like states with highly partisan courts. Iowa is better than that.”

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