Marriage Equality brought to you by… Republicans?

Timothy Kincaid

July 14th, 2010

The Atlantic’s Joshua Green gives a brief listing of the “liberal activist judges” who have been instrumental in bringing about marriage equality in those states in which it exists.

Nearly as significant as the [finding that DOMA is unconstitutional] itself is the political affiliation of the judge who made it: 79-year-old Joseph Tauro, the longest-serving appointee of Richard Nixon. Why is this significant? Because while the recent confirmation hearings for Elena Kagan dwelt on whether ”activist” liberal judges appointed by Democrats would trample legal precedent, the judges who have begun the constitutional protection of same-sex marriage have mostly been Republican appointees like Tauro.

Last year, the Iowa Supreme Court struck down a gay-marriage ban on the grounds that it violated the due process and equal protection clauses of the state constitution. The unanimous decision was written by Justice Mark Cady, a conservative placed on the court by the former Republican governor Terry Branstad. In 2008, the Connecticut Supreme Court struck down a comparable prohibition in an opinion written by Justice Richard Palmer, an appointee of Governor Lowell Weicker, a three-term Republican senator who became an independent. The Massachusetts Supreme Court ruling was written by Chief Justice Margaret Marshall, named to the court by one Republican governor (William Weld) and elevated to chief justice by another (Paul Cellucci).

Green sees these judges as being in contrast with more recent Republican judicial appointments.

What all these judges share is their distinctiveness from Republican appointments over the last two decades, who tend to be activists affiliated with conservative outfits like the Federalist Society — think John Roberts and Samuel Alito. This makes the Republican pedigrees of the judges moving gay marriage toward legality all the more striking, particularly in how it contrasts with conservative outcries about judicial activism. But more than that, it’s a gauge of how far from the mainstream modern conservative jurists have drifted.


July 15th, 2010

Reading this article further confirms to me that I didn’t leave the Republican party, it left me!

From the age of 18 to 34, I was a “straight” line Republican. Then came G.W. and the hawkish neo-cons and their religious right crusaders and I just got tired of being thrown under the political bus everytime G.W. needed to bring out his anti-gay base to shore up his poll numbers or vote in the elections.

I am now registered as an Independent and will only vote for pro-gay civil rights candidates.


July 15th, 2010

This is really no surprise — until the rise of the rabid right, Republicans were quite often supportive of the Constitution. And it’s not just on gay rights — the judge who decided Kitzmiller vs. Dover School Board was a Republican appointee.


July 15th, 2010

We should be more fair than Mr. Green. To say that membership in the Federalist Society makes one a “conservative activist,” opposed to marriage equality is not accurate. Ted Olson, who has so strongly fought to repeal Prop 8, was at the founding meeting of the Federalist Society and speaks to them regularly.

I know of many members of the Federalist Society who support full equality of rights for gay and lesbian people.

Green’s statement is as inaccurate as those about a “gay agenda” or “activist judges” from the Right. There are other groups where there are no substantial blocks supporting equal rights. Then it is fair to mention them, but Federalist Society has a very large segment of pro-equality members.


July 15th, 2010

I think it should be pointed out that Tauro was also the judge who heard and wrote the initial opinion in Largess v SJC. That was the federal lawsuit in the summer of 2004 where some Massachusetts anti-marriage activists sued for overturn of the Goodridge verdict because in their view it violated the Tyranny Clause. The plaintiffs lost with Tauro, they lost on appeal at the appeals court level, and the Supreme Court refused to take their appeal after that.

The federal First Circuit court in Boston has dealt with 3-4 serious federal gay rights lawsuits in the past 6 years. First there was Largess. In 2007 there was Parker v Hurley (the school “coercion” case. Parker had lost on three levels in Mass. state courts, the federal lawsuit was a stretch and got dismissed by a judge Wolf). Recently it’s been Gill and Commonwealth.

In short, Joe Tauro is quietly something of a federal circuit court specialist of sorts on gay marriage rights cases. I have to say he’s done honorably and been/kept above criticism either personal, professional, or political. People may not long remember his name in the American struggle for gay marriage, but he’s done the right thing every time.

I’m sure there are a couple of colleagues in that courthouse who give him advice and support, and it’s Boston, so the atmosphere will be the Yankee one of finding stupidity understandable but giving it no solace. But that does not take away from what he’s done, which is really impressive for a pragmatic conservative in his mid and late seventies.

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