What the Supreme Court Appointment Could Mean for Gay Rights

Much has been made of the two open lesbians on the list of potential Supreme Court picks: Kathleen Sullivan and Pam Karlan. According to NPR, both are in the running, though fall behind Sonia Sotomayor, Diane Wood and Elena Kagan. Either one would, no surprise, be groundbreaking diversity appointments to the Court.

Both Sullivan and Karlan have support from the LGBT community and many liberals think that it would be a huge victory to have a lesbian voice at the Supreme Court when cases like the Massachusetts DOMA challenge make their way before the panel of nine Justices. They might be right (although I would remind them that Sullivan did appear as attorney for Shell Oil in a case arguing against Shell's liability for toxic waste - not my idea of a "liberal" position).

The debate over whether Sullivan or Karlan could make it through the approval process given their sexual orientation is an important one, and it illustrates just how far America has to go towards tolerance and equality. But it may not be the right debate for those who are interested in seeing LGBT rights litigated successfully.

A few weeks ago I saw a presentation by Lambda Legal lawyer Camilla Taylor (part of the team that won gay marriage rights in Iowa) speak on a panel about gay justices. One member of the audience talked about how important it was to have judges who know gay people, have gay family members or have considered the issues facing LGBT Americans in their everyday lives. Taylor responded by pointing out that it makes far more sense to look for judges who are smart, rigorous and fair, than those that agree with you before you go into the courtroom.

Her point is important now, when the discussion focuses on one justice that may have a large role in determining the fate of thousands of same-sex couples in this country.

The argument for same-sex equality does not rest on conflicting evidence or complicated reasoning. It is a clear claim for equal treatment under the law for two identically situated categories of Americans.

The argument that there is some rational basis to the continued discrimination against same-sex couples relies on quasi-scientific studies and emotional claims.

But the lawyers arguing for legal discrimination against LGBT people are talented, they have extensive resources and produce a lot of paper and many statistical studies that must be sorted, analyzed and dealt with in any decision.

Smart, rigorous judges go through each box of material, weigh the evidence and determine that equality must prevail. The overwhelming lack of concrete evidence supporting discrimination against LGBT Americans has been pointed out by conservative and liberal judges in Florida, Iowa, California, Massachusetts, Connecticut as well as other states.

However, it would be easy for a judge to skip the analysis, take the volume to mean something about the quality of the evidence, and determine that a rational basis for discrimination exists. Worse, it would be possible for a judge to use the volume of evidence to confirm their own gut feeling or belief.

I would celebrate the appointment of Sullivan or Karlan. However, we don't need a diverse judge to win rights that protect diversity. We just need someone with a little integrity, patience and intelligence.

Comments

[Brian Gerhardt]

scottyknows: Where would you find the right for anyone to marry in either the US or any State Constitution? The State Constitutions seem to only prevent certain people from marrying rather than outlining a basic right to marry for everyone.

[ShakeYourComplacency]

Well, I don't think I'd want Mary Cheney up there, but for the most part it would be great to have a lesbian judge. Especially since she would in one stroke counterbalance all the recent blowback on women in general, on democratic women, and on lesbians. In one bold stroke, you'd have it all right up there. Deal with it.

You know, at this point, with all of the disappointments of the Obama administration, and how non-threatening he is to GOP power, and how little difference-making he's actually done, I think it's time to make at least one significant appointment that points in a direction other than looks-like-bush.

The GOP strategy, in the face of their dismal and profound political losses, seems to be to shame Obama, press him into being a centrist and a compromiser. Can you imagine if Harry Reid went to Dick Cheney and asked him for a free pass? They'd laugh and kick sand in his face like that old cartoon. Or...when Newt was enforcing his contract with America, can you imagine democrats asking for the right to write the legislation? They would think we were ill and offer us medication.

There's nothing wrong with winning an election, and carrying out the mandate of the people. So far, he's not doing that.

I think it's time to start throwing the american people, especially liberals, more than just bones.

[scottyknows]

Where would you find the right in the Constitution for homosexuals to marry that did not exist ten years ago?

[reversed]

I believe all of the State courts reasoned that same-sex marriage should be permitted as a result of their respective constitutions' equality clauses. In other words, they reasoned that excluding same-sex couples from marriage makes them less than equal to their different-sex peers who are allowed to get married. The US Constitution has its own equality clause.

Additionally, the US Constitution also has the Tenth Amendment which could be used to declare that the Defense of Marriage Act is unconstitutional because it interferes with States' rights. Specifically, they could use the Tenth Amendment to say that the federal government has no business defining marriage and that, if it wants to confer marriage-based benefits, it has to do so based upon a given State's definition of marriage meaning that same-sex marriages would have to be recognized if that couple's State recognizes it.

[Brian Gerhardt]

Agreed. Unfortunately, the ammemdments defining marriage as soley being between a man and a women "trumps" the underlying basic equality clauses in these State Constitutions. The ease of which many states can ammend their constitution is troubling (take California's infamous Prop 8 where a simple majority can vote to remove the rights of a minority.)
A "win" at the Federal Level, either by the overturning of DOMA or a Supreme Court case overturing the State's Constitutions (a-la Brown v. Board of Ed, Roe v. Wade, or Lawerence v. Texas) would be needed to gain Federal Marriage Equality.

[oafishcad]

A lesbian or gay man could not, at this time in history, be appointed to the US Supreme Court. No way. What do you think this is, the 21st century?

[reversed]

I think it could happen... if you could actually get one nominated.

I'd be surprised if Obama were to try it during his first term if at all though since he seems to care more about political capital and considering various lackluster appointments he's already made.