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Non-partisan analyzes NOM’s Iowa ad: “Rooted mostly in opinion,” not in fact

NOM Exposed NOM Tour Tracker-Iowa Right-wing


The ardently non-partisan web site reviews the Iowa TV ad by the National Organization for Marriage and has this to say:

In Iowa, the only issue anyone talks about in connection with the three justices facing retention votes is the court’s 2009 ruling in the case Varnum v. Brien making Iowa the third state in the U.S. to allow same-sex marriage. (Currently five states and Washington, D.C., issue marriage licenses for same-sex couples.) Opposition has been heated, and anti-gay marriage groups are out for the justices’ scalps.

Narrator: Activist judges on Iowa’s Supreme Court have become political, ignoring the will of voters, and imposing same-sex marriage on Iowa. Liberal, out-of-control judges ignoring our traditional values and legislating from the bench, imposing their own values on Iowa. If they can usurp the will of voters and redefine marriage, what will they do to other long-established Iowa traditions and rights? Three of these judges are now on the November ballot. Send them a message. Vote no on retention of Supreme Court Justices.

This ad is rooted mostly in opinion, and everyone is entitled to that. If Iowa for Freedom and the National Organization for Marriage believe that the state’s justices have “become political” and are “liberal” and “out-of-control,” we’re not going to argue. We can, however, point out a few facts and provide some context.

For one thing, the court decision was unanimous. That means that it included the two justices who were appointed by a Republican governor, Terry Branstad – who, by the way, signed the law that was overturned by this decision and has criticized the court’s action. One of those two justices, Mark Cady, was the author of the opinion. The other, Marsha Ternus, is one of the three justices — the others are David Baker and Michael Streit — who are up for a retention vote.

Second, like it or not, “ignoring the will of voters” is exactly what justices are called on to do. They are meant to base their decisions on the facts and the law, most important, the state constitution. Furthermore, the “will of the voters” is not entirely clear; most polls, such as one conducted for Des Moines television station KCCI last February, have found Iowans closely divided (this one asked respondents whether they’d favor a constitutional amendment barring same-sex marriage). Several months before that, a poll for the Des Moines Register found similar results. It also found that well under half of those polled said they disapproved of the court’s decision:

Des Moines Register, Sept. 21, 2009: The poll shows that 26 percent of Iowans favor April’s unanimous court ruling legalizing same-sex marriage, 43 percent oppose it and 31 percent don’t care much or are not sure.

Finally, the ad says that the justices were “legislating from the bench” and “imposing their own values” when they issued the decision. Those are clearly opinions. But we would point out that the court ruled that the legislature had violated the state constitution’s guarantee of equal protection. Here’s part of what Cady wrote about that:

Varnum v. Brien, April 3, 2009: We are firmly convinced that the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective. The legislature has excluded a historically disfavored class of persons from a supremely important civil institution without a constitutionally sufficient justification. …

This approach does not disrespect or denigrate the religious views of many Iowans who may strongly believe in marriage as a dual-gender union, but considers, as we must, only the constitutional rights of all people, as expressed by the promise of equal protection for all.


  • 1. Wine Country Lurker  |  November 1, 2010 at 6:04 am

    Checkin' the box while waiting for more Scribed URLs from Kathleen!

  • 2. Kathleen  |  November 1, 2010 at 6:04 am

    Just checkin' the box

  • 3. Ann S.  |  November 1, 2010 at 6:10 am

  • 4. Lesbians Love Boies  |  November 1, 2010 at 6:36 am


  • 5. StraightForEquality  |  November 1, 2010 at 7:14 am

  • 6. JonT  |  November 1, 2010 at 10:29 am

  • 7. Alan E.  |  November 1, 2010 at 6:05 am

    When it comes to a battle between facts and opinions, judges are supposed to heavily weigh facts over opinions. I said are supposed to instead of do because we all know too well that some judges just ignore facts. You usually see that when there is disagreement on decisions, but in this case, it was a unanimous decision. Seems a little difficult to point out "legislating from the bench" here.

  • 8. Ronnie  |  November 1, 2010 at 6:07 am

    hahahahaha…NOM gets pwnd….<3…Ronnie

  • 9. Sagesse  |  November 1, 2010 at 6:18 am

    Subscribing ('cause I'm HTML challenged and can't do cute symbols).

  • 10. Rhie  |  November 1, 2010 at 6:19 am

    Great analysis, as usual.

    The funny thing is that I know ardent Conservatives who think is very liberal.

    They are also the same one's who think that Drudge Report is a serious news aggregate and not a gossip/Conservative fan page.

  • 11. John B.  |  November 1, 2010 at 6:45 am

    It's not "legislating from the bench" when the decision says that EXISTING laws have to be applied EQUALLY.

  • 12. Mouse  |  November 1, 2010 at 7:03 am

    In NOMnut speak it is legislating from the bench if the decision goes against what they want. They aren't hindered by things like reality.

  • 13. Cat  |  November 1, 2010 at 7:41 am

    I personally distrust any message that contains at least one of the following snippets:

    – activist judges
    – legislating from the bench
    – will of the people
    – out-of-control
    – big government
    – increase taxes
    – hand-outs
    – cripple our economy
    – lying
    – at-it-again
    – clown
    – socialist
    – communist
    – fascist

    and so on…

  • 14. Kate  |  November 1, 2010 at 7:51 am

    – procreation
    – God

  • 15. Sagesse  |  November 1, 2010 at 10:36 am

    Unfortunately, I now cringe whenever I hear 'public square'. Too bad, it was a useful image when discussing free speech.

  • 16. Bob  |  November 1, 2010 at 7:13 am

    have you all seen the votin information on the mathew shepard site it's got really good info about voting, how to find your polling station etc. with lots of other good stuff

  • 17. Ann S.  |  November 1, 2010 at 7:32 am

    There is also a lot of good information at the Election Protection site,

    Remember, if you have a problem or see anyone intimidating voters or otherwise attempting to illegally influence the vote, please call 1-866-OUR-VOTE.

    Leaving soon for my shift.

  • 18. Bob  |  November 1, 2010 at 10:43 am

    democrats need to vote, seriously, I want to get on my broom and fly over every corner of the country, and whisk people off their butts, and to the polls.

  • 19. Ann S.  |  November 1, 2010 at 1:29 pm

    You are so right. The switchboard was pretty quiet tonight during our shift, which was slightly disappointing. Then again, maybe everyone was watching the game.

    Oh, and Hooray, Giants!!

  • 20. Alan E.  |  November 1, 2010 at 7:24 am

    Ted Olson Talks Marriage Equality at Huffington Post Event

  • 21. Bennett  |  November 1, 2010 at 8:02 am

    “Ignoring the will of voters” is exactly what justices are called on to do.

    I love it.

    How confused these people are. Voting booths are the new judges. After Sharon Angle is defeated, second ammendment remedies will be the new judges. Oh well, if she insists.

    Honestly, I've had a few second ammendment remedy thoughts myself this election season. Thats a little scary huh?

  • 22. Bennett  |  November 1, 2010 at 8:04 am

    Whew, Republicorp got here quick.
    "I was only using Hyperbole, sarcasm, snarkiness, etc."
    I'm innocent, Dont shoot!
    Good by cruel world.

  • 23. Alan E.  |  November 1, 2010 at 8:09 am

    BREAKING: DADT Stay Order held.

    order can be read here:

  • 24. Alan E.  |  November 1, 2010 at 8:11 am

    The government persuasively adds that “[t]he district
    court’s injunction does not permit sufficient time for such appropriate training to
    occur, especially for commanders and servicemen serving in active combat.” We
    also note that the government takes issue with the district court’s constitutional

  • 25. Ronnie  |  November 1, 2010 at 8:24 am

    What [email protected]#king training needs to be done in order to repeal DADT?….umm…I'm sorry but I don't get why it is so hard to just not discharge someone because they are openly Gay…it really is this easy..just don't do it…It is hilarious….we are not the ones that make being Gay an is the Homophobic pigs who make it an issue…they don't know how to mind their own business… & if it is made known that somebody is Gay then get over it…they're permission in neither desired nor required… they are not the bosses of our personal lives, we are not their property, & they have no say in anything other then their own lives…maybe if they learn how to accept that they can move on with theirs & leave us the frak alone….<3…Ronnie

  • 26. Alan E.  |  November 1, 2010 at 8:14 am

    there are three reasons that persuade us to grant a stay
    pending appeal:

    First, Acts of Congress are presumptively constitutional, creating an equity
    in favor of the government when balancing the hardships in a request for a stay
    pending appeal

  • 27. Alan E.  |  November 1, 2010 at 8:17 am

    Second, “‘judicial deference . . . is at its apogee’ when Congress legislates
    under its authority to raise and support armies.”

  • 28. Steve  |  November 1, 2010 at 8:27 am

    Their whole argument basically boils down to "the military can do whatever the fuck it wants".

    They cite several DADT-cases, but if you apply "Lawrence vs. Texas" equally to everyone (civilian and military) they are invalidated by that. That was a big point in the whole LCR case. That DADT – far from only applying to military duty – unreasonably infringes on many private liberties.

    Cook vs Gates was a fuckup in any case.

  • 29. Alan E.  |  November 1, 2010 at 8:17 am

    Third, the district court’s analysis and conclusions are arguably at odds with
    the decisions of at least four other Circuit Courts of Appeal

  • 30. Alan E.  |  November 1, 2010 at 8:25 am

    2-1 vote. At least there is a dissent.

  • 31. Alan E.  |  November 1, 2010 at 8:26 am

    Here is the dissent:

    W. FLETCHER, Circuit Judge, dissenting:
    I respectfully dissent.
    I would have preferred to hear argument to assist our panel in deciding
    whether, or in what degree, to grant the Defendants’ motion to stay the district
    court’s order. However, our General Orders provide that one judge requesting oral
    argument on a motion is not enough. G. O. 6.3.g.(4) (“If two judges determine that
    oral argument on a motion is necessary, the panel shall direct the motions attorney
    to make the necessary arrangements.”).
    I would stay the district court’s order in all respects except one: I would
    allow the district court’s order to continue in effect insofar as it enjoins the
    Defendants from actually discharging anyone from the military, pursuant to the
    Don’t Ask Don’t Tell policy, during the pendency of the appeal. Defendants
    would not be required during the pendency of the appeal to change their recruiting
    practices, to change their personnel manuals, or, subject only to the requirement
    that they not actually discharge anyone, otherwise to change their practices. If the
    hardship that would be imposed on plaintiffs by actual discharge is removed, the
    balance of hardships would tip sharply in favor of the Defendants. A partial stay
    of the district court’s order, such as I have just described, would then be
    appropriate. See Golden Gate Rest. Ass’n v. City & Cnty. of San Francisco, 512
    F.3d 1112, 1115-16 (9th Cir. 2008) (a stay is appropriate when there are “serious
    legal questions” and the balance of hardships tips sharply in favor of the party
    seeking the stay).

  • 32. Ann S.  |  November 1, 2010 at 1:27 pm

    Ah, good old Willie Fletcher. He was a professor at Boalt when I was there. Unfortunately, I never had the pleasure of taking a course from him. He was well-liked by the students despite being considered a very tough teacher — not an easy thing to achieve.

    His mother Betty had to take senior status from the 9th Circuit when he was appointed in 1998. They must have interesting conversations around the Thanksgiving table.

  • 33. Richard A. Walter (s  |  November 1, 2010 at 12:12 pm

    We must also remember that those who are paying for this ad are the same ones who are trying to hide their donor lists and evade the laws regarding political action committees every day. These are the people who are trying to turn this country into the Republic of Gilead because they want to live in a theocracy.

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