September 28, 2004
Category: Domestic Partners
You be the Judge
By Cheryl Jacques, HRC president, and Kevin Cathcart, Lambda Legal executive director
"A state cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause, and the judgment of the Supreme Court of Colorado is affirmed."
- Justice Anthony Kennedy, writing for the majority in Romer v. Evans, which invalidated a discriminatory Colorado law
"What can explain the court majority's decision? Only the newly faddish approval of homosexual conduct among the elite classes from which the justices come and to which most of them respond."
- Judge Robert Bork on Romer
Reading these two passages, it's hard to believe that each was written by a nominee for the same spot on the U.S. Supreme Court.
Justice Anthony Kennedy, who was ultimately confirmed, would later affirm the equality of the gay, lesbian, bisexual and transgender community in the landmark cases of Romer v. Evans, which declared that Colorado could not disadvantage gay people in its political system, and Lawrence v. Texas, which struck down state sodomy laws.&nbsp&nbsp&nbsp
Robert Bork, President Reagan's first pick for this position on the Supreme Court who was denied confirmation in the Senate, probably would have come to very different conclusions. An outspoken opponent of GLBT rights, Bork was critical of the Romer and Lawrence decisions.
As leaders of two of the nation's most significant GLBT advocacy groups, we know that the selection of judges has a profound effect on our community.
But too many people in the GLBT community don't know that when we vote for candidates, we're also helping to shape the judiciary for years to come. In other words, when we choose to stay at home on
Election Day, we're choosing to let someone else put together a branch of our government that will directly affect our lives.
Our votes for president and senators directly affect the composition of the courts, which in turn can make the difference between equal justice under law, as exemplified by Lawrence, and being branded as criminals, the shameful legacy of Bowers v. Hardwick that Lawrence put to rest.
Since Lambda Legal's heroic victory in Lawrence, we've seen unprecedented attacks on the courts by anti-gay forces. They are advocating for the appointment of extremists who will not recognize, as Justice Kennedy did, our basic rights as citizens.
They are pushing the unprecedented and unconstitutional "Marriage Protection Act," which would close the courts to our community by preventing federal court challenges to the so-called "Defense of Marriage Act."
They are even attacking the judges themselves. On Sept. 8, anti-gay forces in California requested the recall of Judge Loren McMaster, who upheld California's domestic partnership law over the objections of the extremists who sued to have it invalidated.
This last effort - in which the anti-gay forces were actually asking a judge to strike down popular legislation - exposes the truth about complaints that judges are "activists." It's simply an effort to diminish judges who put the Constitution ahead of anti-gay ideology.
Case in point: The same people who label Justice Kennedy as "activist" hurled no such accusations at an Alabama judge who defied a federal court order to comply with the First Amendment and remove a monument to the Ten Commandments from public property. Opponents of equality want judges to promote an agenda - their agenda.
Already, we're seeing evidence that judges nominated in service of a right-wing agenda will deliver the goods when they get the opportunity. On July 21, 2004, a federal court of appeals upheld Florida's discriminatory adoption ban by a one-vote margin. Who sat on that bench? Judge William Pryor.
Pryor has an abysmal record on GLBT issues and recently received a temporary judicial appointment in a move that circumvented congressional approval. His temporary appointment expires at the end of this year. It is in the interest of our community to insure that Pryor, and judges like him, do not receive lifetime appointments to the bench.
When it comes to the Supreme Court, the stakes couldn't be higher. Four of the justices are older than 70. With many cases decided by the narrowest of margins, who appoints the next Supreme Court justice will change life for GLBT Americans - for good or for bad.
That's why the Human Rights Campaign Foundation recently released "Justice for All," a publication explaining the role every vote plays in shaping the judiciary in years to come. It's why Lambda Legal educates about the effect one judge can have on millions of lives, while exposing the truth behind rhetoric about so-called "activist judges."
In the end, though, it's not up to us. It's up to you. Your vote can make the difference between giving a lifelong job to someone who spouts the rhetoric of Bork or someone as fair and impartial as Kennedy. It's your vote. You be the judge.