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Laurence Watts Headshot

Gay Rights and the U.S. Supreme Court

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THOMAS KAGAN SUPREME COURT HEALTH CARE
AP File

On Nov. 17, 2011, California's Supreme Court ruled that Proposition 8's proponents have standing, under state law, to defend their ballot initiative given the governor and attorney general refused to do so. This likely means that the United States Court of Appeals for the Ninth Circuit will also grant them standing under federal law.

The upside of this is that Judge Walker's historic Aug. 4, 2010 District Court ruling will now be judged on its merits at appeal. Judge Walker found Proposition 8 to be unconstitutional. Anyone who followed the original case knows that during Walker's trial, Proposition 8's backers produced no evidence to support their case. Our side called expert witness after expert witness. When the Ninth Circuit Appeals Court rules in early 2012, it will more than likely uphold Judge Walker's decision. Whichever side loses is likely to appeal.

Ted Olson, one of the attorneys leading the fight for same-sex marriage, has said that the U.S. Supreme Court could decide to take up the case as early as June or October 2012. It could take longer. Either way, a U.S. Supreme Court hearing would come after the November 2012 election. Therein lies a potential problem.

In recent years a lot of gay men and women have grown tired of the legislative route as the way to win equality. They point to a Democrat-controlled Congress failing to repeal DOMA, or pass ENDA, and the fact that DADT repeal almost didn't happen. Instead, they argue, we should try winning equality through the courts. Given recent court decisions ruling Prop 8, DOMA and DADT unconstitutional, this move appears sound. However, these issues, with the exception of DADT, will soon arrive at the U.S. Supreme Court. Here the judicial and political processes converge.

The president appoints Supreme Court justices by and with the advice and consent of the U.S. Senate. In practice, presidents appoint justices whom they believe will make rulings that favour their own politics. In other words, Republican administrations appoint right-leaning justices, and Democratic administrations appoint left-leaning ones. Unless gay men and women reengage themselves with U.S. politics, they could face an unfriendly president and Senate after November 2012, just when key gay rights cases arrive at the U.S. Supreme Court.

Why is that important, given that there are currently no vacancies on the nine-member Supreme Court bench? Well, because the next presidential term could see three or more such vacancies arise.

Supreme Court justices are appointed for life, but that doesn't stop them from retiring. The average age at retirement of the last five Supreme Court justices was around 79.5 years. By the time of the 2016 presidential election, three of the current justices will exceed that age: Ruth Ginsburg (appointed by Clinton), Antonin Scalia (appointed by Reagan) and Anthony Kennedy (also appointed by Reagan). Moreover, that average retirement age of 79.5 is inflated by the June 2010 retirement of John Paul Stevens, the oldest member of the Supreme Court in history (he was 90 when he retired). Take him out of the equation and the average retirement age falls to 77, which would put Stephen Breyer (appointed by Clinton) in line for probable retirement, as well. It's therefore conceivable that four out of nine sitting justices could retire in the next presidential term.

It's not just retirements we have to worry about, either. Justices tend to be old, and sadly, many throughout history have died on the job. The last sitting justice to pass away was William Rehnquist, who died in 2005 at the age of 80. Assuming none retire, three sitting Justices will have celebrated their 80th birthday by November 2016.

In my view, it's vital that gay men and women make sure that the next president and Senate be prevented from the Supreme Court against them at a time vital to their interests. Let's not forget that Mitt Romney and Rick Perry (not to mention the also-rans Bachmann and Santorum) have signed a pledge written by the anti-gay National Organization for Marriage, which states that they would "nominate to the U.S. Supreme Court and federal bench judges who are committed to restraint and to applying the original meaning of the Constitution, appoint an attorney general similarly committed, and thus reject the idea our Founding Fathers inserted a right to gay marriage into our Constitution."

Not only is the presidency and House up for grabs in 2012, but the Senate is, too. Twenty-three of the 33 seats up for reelection are currently held by Democrats (including two independents). The Democrats' current 53:47 Senate majority well and truly hangs in the balance. It's a fact that Democratic senators have proven to be gay-friendlier. One need only look at the recent Senate Judiciary Committee vote on the Respect for Marriage Act, which would repeal DOMA. All 10 Democratic senators voted in favour, while all eight Republican senators voted against it.

The next presidential term is likely to be pivotal for gay rights. It would be nice to think that Supreme Court justices will vote in our favour because, like other civil rights movements in the past, our cause is just and our treatment to date discriminatory. The truth of the matter is that at the highest level, judicial decisions turn on the life experiences and politics of justices as much as their skill and intellect. Come 2016, we don't want a Supreme Court stacked with NOM-pledge-compliant justices. We have to get political again.