DES MOINES — Supporters of Supreme Court Justice David Wiggins are hoping that a low-key campaign stressing Iowa’s history of equality will convince voters to reject a conservative effort to oust him for approving same-sex marriage.
Wiggins’ critics are asking voters to remove him Nov. 6, claiming he and his colleagues abused their power when they struck down Iowa’s ban on gay marriage in a 7-0 ruling in 2009. They are hoping for a repeat of 2010 — when voters took the unprecedented step of firing three of the justices — but acknowledge the state’s legal establishment and liberal groups are mounting a stronger campaign for Wiggins this year.
“I think that the retention vote will be much closer than it was two years ago,” said retired psychologist Rich Zeis of Walker, who donated $250 to the group leading the opposition to Wiggins. He said he voted against the justices in 2010 and has only grown angrier over the court’s decision, which he called “an effort to change our culture and some deeply held values that we have had for thousands of years.”
But backers of Wiggins, including the Iowa State Bar Association and Justice Not Politics Action, said the decision is in line with Iowa’s history of being ahead of the nation in equal rights. The justices ruled that Iowa’s ban on same-sex marriage violated the state constitution’s equal protection clause. More than 4,500 gay and lesbian couples have since wed in Iowa, one of six states where the practice is legal.
Wiggins, a lawyer appointed by Democrat Gov. Tom Vilsack in 2003, needs 50 percent to win another eight-year term.
His colleagues ousted in 2010 received about 45 percent support.
The other three justices up for retention — Thomas Waterman of Pleasant Valley, Bruce Zager of Waterloo and Edward Mansfield of Des Moines — were appointed in 2011 after the three justices were ousted on retention votes. District and associate court judges from the 7th Judicial District also are on the retention ballot.
With competitive presidential and congressional races in Iowa, the campaign has been less high-profile than in 2010. The National Organization for Marriage has run a television ad attacking Wiggins — the sole one by either side — at a cost of $100,000, a fraction of what it spent two years ago. Both sides are using social media, appearing before editorial boards and contacting voters to get their messages out.
One video by Iowa filmmaker Scott Siepker, funded by the state’s trial lawyers, uses humor to defend the marriage ruling. More than 40,000 people have viewed the viral video that reminds viewers to flip over their ballots and vote in the race — something that 150,000 voters skipped in 2010.
“Unanimous is a fancy word that meant our state constitution left no doubt,” Siepker says in the video. “Iowa has been ahead of the curve for a century. We’ve got a good thing here. Don’t let politics screw it up.”
Wiggins’ backers note that the Iowa Supreme Court ruled in 1839 that that “no man in this territory can be reduced to slavery” in concluding that Dred Scott, a Missouri slave who had moved to Iowa, a free state, was not a fugitive.
In 1868, the court ruled that public schools that were segregated on the basis of race were inherently unequal, 86 years before the U.S. Supreme Court ruled similarly. The next year, the court allowed the first female lawyer in the nation, ruling that women cannot be denied the right to practice.
Wiggins has not directly campaigned, saying he’s following the long-standing tradition in which Iowa justices do not raise money. But in appearances at civic groups, schools and churches that he bills as educational, he has mentioned those rulings to argue that what the court did in 2009 was not a stretch.
“He was amazing,” said Rev. Patti Aurand of First Congregational United Church of Christ in Mason City, which invited Wiggins to speak on a recent Sunday. “I learned more about the Iowa state constitution than I had any idea that was out there. To find out our role of equality. Iowa has been a forerunner in those issues since the 1800s, which is pretty incredible.”
She said when Wiggins finished speaking to a crowd of 50, one man stood and thanked him for the history lesson.
Tamara Scott, co-chair of Iowans for Freedom, a conservative group campaigning against Wiggins, said the marriage ruling overstepped the court’s bounds by creating rights that no one imagined when the constitution was drafted. Justices should have left the issue to state lawmakers, she said.
Scott said it was disingenuous for Wiggins’ supporters to argue they want to keep politics out of courts since special interests such as unions and the League of Women Voters were part of the coalition supporting his retention. “The other side has been campaigning for two years, holding campaign events on college campuses under the guise of educational forums,” she said.
Allison Heffern, a Cedar Rapids lawyer who donated $100 to Justice Not Politics, is among dozens of attorneys who have become more involved in supporting retention this year. She’s mailed postcards to relatives and talked over the issue with friends, saying that removing Wiggins would intimidate other judges from making unpopular but necessary rulings.
“Right now, the courts are the recourse for people who are being treated unfairly by the majority,” she said. “If that is gone, you are out of luck.”