The threats to impeach 4 Iowa Supreme Court justices for their same-sex marriage decision (Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009)) is now a partial reality. Late yesterday HR 47, HR 48, HR 49, and HR 50 were filed against (in order) Justice Brent Appel, Chief Justice Mark Cady, Justice Daryl Hecht, and Justice David Wiggins. (The other three justices who ruled on the case were voted out of office in November 2010.)I am supporter of judicial elections and a supporter of coordinate construction of constitutional meaning, but I don't support this impeachment effort.
The Iowa state constitution provides that, "The governor, judges of the supreme and district courts, and other state officers, shall be liable to impeachment for any misdemeanor or malfeasance in office." These justices are not accused of any crime or malfeasance in the sense of corruption or actions undertaken in bad faith.Impeachment is not, therefore, an appropriate constitutional remedy for a court's misinterpretation of the state constitution.
Instead, it seems to me that the appropriate legislative response is to create a new statute in opposition to the Varnum ruling and the state Supreme Court from deciding the constitutionality of the new law, which the legislature is empowered to do under Article V, Section 4 of the Iowa state constitution, which reads:
The supreme court shall have appellate jurisdiction only in cases in chancery, and shall constitute a court for the correction of errors at law, under such restrictions as the general assembly may, by law, prescribe; and shall have power to issue all writs and process necessary to secure justice to parties, and shall exercise a supervisory and administrative control over all inferior judicial tribunals throughout the state. [Emphasis added.]As for the justices themselves, the people of Iowa will have the chance to retain them in office or replace them with new justices soon enough. That's what elections are for.
I should probably mention that I am, in fact, a supporter of same-sex marriage, and I believe that the Fourteenth Amendment to the United States Constitution requires states that license marriages to issue such licenses to homosexual couples on equal footing with heterosexual couples. However, I also recognize that this is an issue over which there exists substantial disagreement---for the time being---both in the sense of the even division of public opinion on the question and the intensity with which the two sides hold their beliefs. Such disagreement about the issue should support much deference to legislative actions and other democratic processes (e.g. referenda) with respect to marriage policy.