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Another Republican judge weighs in on marriage

Timothy Kincaid

October 19th, 2012

One of the things one regularly hears during election season are “Don’t vote for that Democrat, he’ll appoint pro-homosexual judges” and “Don’t vote for that Republican, she’ll appoint anti-gay judges.” But such simplistic assumptions are seldom accurate.

And in the fight for marriage rights in the courts, more often than not the judges finding that gay people are entitled to equal treatment under the law have been appointed by a Republican president or are themselves Republicans, sometimes quite conservative ones. And in this latest ruling – one that goes further than any to date – this pattern holds (LATimes)

“Homosexuals have suffered a history of discrimination,” Chief Judge Dennis Jacobs said for a 2-1 majority. And while gays have been winning political victories, he said, they are still subject to many discriminatory laws. Jacobs said courts should view all laws that discriminate based on sexual orientation with the same skepticism accorded to laws that discriminate based on gender.

Jacobs, who has a generally conservative reputation, was appointed to the court by former President George H.W. Bush. He was joined by Judge Christopher Droney, an appointee of President Clinton. In dissent, Judge Chester Straub, another Clinton appointee, said judges should not change the traditional definition of marriage. If it is to be changed, he wrote, “I believe it is for the American people to do so.”

It isn’t just disabusing us of silly memes that makes me appreciate this trend; I also think that it provides us with both a stronger position and greater hope. For one thing, it silences the screams about “liberal activist judges” and gives our neighbors assurance that our victories aren’t being awarded because of partisan legislation from the bench. Bipartisanship goes a long way towards cultural acceptance of judicial decisions.

But an even more important reason is the message it send to the Supreme Court. As Republican judges address this issue, they do so from a particular perspective with particular viewpoints on what the Constitution means. And when they write opinions, they do so utilizing language that reflects these perspectives and viewpoints. And as it is believed that the Supreme Court justices which will need to be swayed in our favor are all Republicans, these opinions can speak to them in the terms which best plead our case.

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TominDC
October 19th, 2012 | LINK

On the other hand, how many of the judges that G.W.Bush appointed to the supreme court are pro-equality?

TominDC
October 19th, 2012 | LINK

Damn, clicked “post” prematurely.

I think you’re being a little naive here. Yes, it’s great when republican-appointed judges side with us. Yes, they can better “speak their language.” But has it actually done us any good?

Do you have any evidence that proves that having bipartisan support on the bench “silences the screams about ‘liberal activist judges’ and gives our neighbors assurance that our victories aren’t being awarded because of partisan legislation from the bench.”

We all know that it certainly hasn’t stopped anti-gay organisations like NOM from branding such judges as activists. As for the latter, the vast majority of Americans won’t read their decisions, and I suspect won’t know/care who appointed these judges.

Gene in L.A.
October 19th, 2012 | LINK

“And in the fight for marriage rights in the courts, more often than not the judges finding that gay people are entitled to equal treatment under the law have been appointed by a Republican president or are themselves Republicans…”

“more often than not”? Sorry, that’s as easy to say as that conservative judges are anti-gay. Without statistical evidence all such statements are unprovable as anything more than the opinion of the speaker. So far in my life I’ve seen evidence that your “more often than not” is unlikely.

Russ
October 19th, 2012 | LINK

Nice post, Timothy. Would have been even nicer if you had said which case this refers to, instead of making your readers have to go to the LA Times to find out.

Timothy Kincaid
October 19th, 2012 | LINK

Russ, good point. I’ve now linked it back to the commentary Jim posted yesterday.

Timothy Kincaid
October 19th, 2012 | LINK

TominDC,

Well, we just don’t know yet, do we? Marriage has not been addressed by the Supreme Court. But as for W’s appointments, here’s who they are:

Alito – considered a conservative, but also has a libertarian streak. In college he chaired a conference which called for decriminalization of homosexuality and proposed employment discrimination protections – though it is not entirely clear the extent to which his paper reflected his own views.

Roberts – is part of the more moderate middle and is, in my opinion, a possible ally on the court. He did pro-bono work on Romer v. Evans, our first significant win at SCOTUS. It is Roberts, along with Kennedy, that it is so important that the issue be nonpartisan and written in terms that can appeal to a Republican.

Timothy Kincaid
October 19th, 2012 | LINK

Gene, we know who the judges are who have ruled on marriage. It’s not a long list.

TampaZeke
October 19th, 2012 | LINK

I’d like to know the political appointment details of the judges who have ruled against us or have written dissenting opinions.

It’s impossible to know if Timothy’s point is completely valid if we don’t know that piece of the puzzle.

Timothy Kincaid
October 19th, 2012 | LINK

Zeke,

We could track it down, though that is a different question. I think the presumption is that those who ruled against us are likely Republicans or Republican appointees, but that would also have been my assumption (reversed) about the cases in which we have won – a false presumption.

We haven’t lost many marriage cases recently so we’d have to go back a bit. Maybe when my schedule clears up a bit more I can do that. It would be interesting to know and add a little nuance to the issue.

Timothy Kincaid
October 19th, 2012 | LINK

Zeke,

It will take quite a bit of research to fully answer your question.

Just looking at one single state case, Goodridge v. Dept. Public Health (Mass) yields four votes for equality (three R appointees and one D) and three votes against (all R). Justice Tauro, a R federal judge denied a challenge in federal court.

Looking up losses will be even more difficult. As they are seen as less news-worthy than wins, I’ll have to do some digging even to get a list of them.

Gene in L.A.
October 19th, 2012 | LINK

Timothy, if your point about judges is limited to the issue of gay marriage, I stand corrected. If it were not, and more generally referred to gay equality and rights under the law, I would stand by my post.

Jim Hlavac
October 20th, 2012 | LINK

The gay issue is so complex that no one thing — law, science, theology, rights, what have you, is going to “solve” the heterosexual problem with gay folks. There’s so many laws that need to be changed. We’ll have opponents at every step of the way. Liberals are coming at it from a “justice” point of view, while conservatives are coming at it from a “liberty” point of view. It’s sort of “equality” v. “individualism,” but more are judges and politicians are coming to our side. Meanwhile on the social and cultural scene we’re at different levels of acceptance and inclusion. Religions have been slowly including us. Amongst the serious religious right there’s questioning. Among the rabid, there may be no hope. Look at the entirety of this struggle, like a 1000 piece puzzle — this little — and very good — analysis is just another look at another piece that we don’t know where it fits yet.

Jay
October 20th, 2012 | LINK

It is a big deal with a severely conservative judge like Judge Dennis Jacobs writes a pro-gay opinion. Some moderate Republicans, appointed by Republican presidents, have wonderful records on gay rights: I think of Justice Blackmun (whose dissent in Bowers v. Hardwick is a classic that was vindicated in Lawrence v. Texas) and Justice Kennedy (who, with Justice Ginsburg, has written the most beautiful majority opinions on gay rights.) But Romney’s ideal justices are Scalia, Thomas, and Alito, who have never written a single word that indicates any sympathy for gay people. And, indeed, Romney has made it clear that there will be litmus tests for any judicial appointment he makes. His chief judicial advisor is the viciously anti-gay Bork. Don’t be conceived that there will not be consequences on the courts if Romney is elected.

Lord_Byron
October 20th, 2012 | LINK

“And in the fight for marriage rights in the courts, more often than not the judges finding that gay people are entitled to equal treatment under the law have been appointed by a Republican president or are themselves Republicans…”

Interesting idea, but there are at least two republican appointed judges on the supreme court who will always rule against LGBT rights and same-sex marriage. Scalia and Thomas would never, and based on past statements I can say this, vote in our favor. Scalia is the one who thinks it is ok for states to have anti-sodomy laws.

“For one thing, it silences the screams about “liberal activist judges” and gives our neighbors assurance that our victories aren’t being awarded because of partisan legislation from the bench.”

Not likely. Remember that in the case of Judge Walker the groups that supported Pro 8 tried to find any reason to say why the ruling was not fair. In Iowa NOM successfully got Supreme Court justices David Baker, Michael Streit, and Marsha Ternus voted out of the Iowa State Supreme Court. In the case in Iowa it is interesting, though, that in the elections the vote for no retention was only 4 points more than those that voted to keep the Justices.

So in summary: The two most conservative justices on the supreme court will not be swayed. They claim to be originalists and will not let modern arguments change their views.

Timothy Kincaid
October 20th, 2012 | LINK

Byron

You are absolutely correct on Scalia. He votes proxy for the Pope.

But I’m going to go WAY out on a limb and say that there is possibility of support from Thomas. While Scalia calls himself an originalist, he’s more of a social conservative who assigns his own morality to the constitutional authors to justify his decisions. Thomas, though his votes very often mirror Scalia’s, does have a different approach. And I think that he may have the capacity to see within the clear language of the Constitution that “all” includes gay people.

Yes it’s unlikely. But there is a long shot. And -ironically – it is his opposition to affirmative action that suggests this to me. His insistence that groups cannot be treated preferably may direct him to oppose state amendments that do just that.

Remember, at its core, our opponents’ claim is that heterosexuals deserve preference because of child rearing, tradition, etc.

Ben M
October 20th, 2012 | LINK

I suspect the make-up of the Federal bench has a lot to do with the number of Republican judges that make pro-gay case law than anything else. In the last thirty years, more judges (at least at the appeals level) have been appointed by Republican presidents, by virtue of the fact that Republican’s have held the Presidency more often than Democrats.

I don’t have good data for the district courts, but I don’t think it is a stretch to assume that Republican appointees have historically outnumbered Democratic appointees.

In 2008 almost 60% of appellate federal judgeships were Republican appointees and by comparison, when Clinton left office in 2000, only 44% of the appellate federal judgeships were appointed by Democrats (the highest percent since 1984).

ZRAinSWVA
October 21st, 2012 | LINK

Truly, I don’t think these judges are making ‘pro-gay’ judgements. Rather, they are strictly interpreting and applying the law and are finding that a subset of the population is subject to discrimination and is not being treated equally by the law. That’s not ‘pro-gay’. It’s doing the job for which you were appointed. Which is why Scalia and Thomas are just a persistent disappointment.

“In dissent, Judge Chester Straub, another Clinton appointee, said judges should not change the traditional definition of marriage.” which is truly not what the case was about. Rather, the case was about the recognition of a civil contract (a.k.a., a marriage license) which conveys certain, specific rights and obligations, and the fact that certain people were being prohibited from the legal recognition of that contract even though every heterosexual married couple in the world could waltz into the same situation and suffer no animus.

Eric in Oakland
October 22nd, 2012 | LINK

Something we should keep in mind is that the Republican party (the same as any political movement) is not static, but changes over time. Thus today’s Republicans (in general) are much further to the right than Ronald Reagan or Barry Goldwater. I think this is why we may see reasonable decisions coming from judges that were appointed by Reagan or GHW Bush, while it would still be fair to say any Romney appointment would be a disaster.

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