With LGBT issues prominent in an increasing number of court cases, we are accustomed to hearing conservative outcries about “activist” judges “legislating from the bench”. However, an examination by Joshua Greene at the Atlantic of the key judgements holds a surprise: the judges involved are not democratic activists, but conservative judges appointed by GOP presidents and governors. This should not surprise, of course. The issues are not only”civil rights”, but also two deeply important conservative principles. The first has already been highlighted by the recent DOMA judgement, that federal government cannot overrule states’ rights in their areas of competence. The other is parallel to this, at an even more basic level: government has no business interfering in people’s personal lives. What can be more personal than our love lives?
In addition to the DOMA judgement, Greene discusses the Iowa, Connecticut and Massachusetts marriage rulings by Justices Mark Cady and Richard Palmer who had been appointed respectively by the Republican governors at the time of their appointments Terry Branstad (Iowa) and Lowell Weicke (Connecticut). In Massachusetts, the judge responsible was Chief Justice Margaret Marshall, who owed her position to two Republican governors: William Weld, who placed her on the bench, and Paul Cellucci, who elevated her to Chief Justice.
In California, Chief Judge Vaughn Walker is widely expected to rule in favour of the plaintiffs and overturn Prop 8 (before it inevitably winds its way up to the Supreme Court). He was appointed by Ronald Reagan – and fiercely opposed by Nancy Pelosi.
In the Supreme Court, Justice Anthony Kennedy, appointed by President Reagan, gets two mentions for important decisions on gay rights: Romer v Evans, which protected state and municipal anti-discriminations measures, and the renowned Lawrence v Texas, which struck down anti-sodomy laws. He has also been widely described as the swing vote that tipped the balance in the recent judgement in favour of Hastings College, ruling that it did not violate the First amendment by withholding funding from a “Christian” which discriminated against gays and lesbians.
As Greene quite correctly points out, it is not these conservative judges who are departing from conservative principles, but the conservative activists appointed by Bush, cheered on by NOM and similar wingnut activists, who want government to intervene in our private lives. No wonder the Tea Party groups are now declaring neutrality on marriage.
Reagan and other GOP judicial appointments protecting queer rights: who’d have thunk it?
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- How The GOP Gave Us Judicial Equality (andrewsullivan.theatlantic.com)
- Those Liberal Judges (andrewsullivan.theatlantic.com)
- No judge left behind: Even deeply GOP Bush appointees earn ‘activist’ ire (pinkbananaworld.com)
- Making a Supreme Court Case for Gay Marriage (time.com)