On a Roll

by Stephen H. Miller on February 14, 2014

And the streak continues, as a federal judge in Kentucky, recommended by Sen. Mitch McConnell and appointed by George H.W. Bush, rules the bluegrass state must recognize same-sex marriages. Let’s note it was Vaughn Walker, another federal judge appointed by George H.W. Bush [corrected], who struck down California’s Prop. 8.

Also in February, Nevada’s Republican governor, Brian Sandoval, and attorney general announced that the state would no longer defend its 2002 ban on same-sex marriage in federal court.

And, of course, Supreme Court Justice Anthony Kennedy, author of numerous pro-gay-equality rulings, including the high court’s decision overturning key portions of the Defense of Marriage Act, was a Reagan appointee. This is pointed out because the din of the “one party is all we need and it starts with a ‘D’” crowd is sometimes deafening.

Meanwhile, in another victory, an Obama-appointed federal judge struck down Virginia’s ban on same-sex marriage, in what conservative (and not always gay friendly) site Breitbart termed “an historic ruling with special resonance on Valentine’s Day. Except the history of the historic ruling isn’t exactly up to par: Judge Arenda Wright Allen claimed the Constitution declares that ‘all men are created equal,’ which is, instead, the first line of the Declaration of Independence.”

Given the importance of Virginia and its history (with Loving vs. Virginia leading to the overthrow of state bans on mixed-race marriages), a legally literate ruling from the old dominion state would have been even more welcome.

Update. Judge Allen’s decison has now been amended. I don’t agree this was just an editing error; the Declaration inspires us, but court rulings must be grounded in the law and, ultimately, the Constitution.

More. An optimistic analysis, via Slate, says “It’s Over.” We’ll see.

Furthermore. Back in 2010, David Boaz noted (paraphrasing a report in The Atlantic by Josh Green):

…the federal judge in Boston who struck down a significant portion of the Defense of Marriage Act, ruling that it denied gay and lesbian couples the federal benefits afforded to straight couples, was appointed to the bench by President Richard Nixon. And the chief judge of the Iowa Supreme Court who wrote the unanimous decision striking down that state’s marriage ban was appointed by Republican governor Terry Branstad, who was just renominated for governor by Iowa Republican voters.

We’d only need to support one party if the legislature and judiciary also drew only from one party. That might be the political ideal for some, but it certainly shouldn’t be ours.

{ 26 comments }

Tom Scharbach February 14, 2014 at 5:52 pm

We are winning in court because we’ve moved from the political to the legal arena.

The legal questions are constitutional questions that build on 60+ years of precedent, culminating in the Windsor dicta.

Given the precedential value of the analysis in Windsor, the constitutional questions are straightforward, as is the constitutional analysis. It is hard to imagine a clearer road map than Windsor‘s dicta.

That’s why we are seeing lower court judges of all political persuasions (some appointed by Democrats, some by Republicans) rule in our favor, and why we will continue to do so.

A few complicated constitutional questions remain to be resolved (the appropriate level of scrutiny, for example), but if the current Supreme Court composition holds through the 2018 term — Kennedy is critical, but so are Breyer, Ginsburg, Kagan and Sotomayer — we are almost certainly to prevail nationwide.

A side note about lower court opinions: Lower court judges are trial-level, not appellate-level. Their job is to apply precedent to facts, and reach decisions based on reasoning that might, or might not be confirmed at the appellate level.

The Perry case is a case in point.

Judge Walker’s opinion carefully destroyed the rational basis for marriage discrimination — the various rationales were dissected and found wanting — but his legal analysis was ignored by the 10th Circuit, which carefully crafted a decision based on the Supreme Court’s decision in Romer.

The Supreme Court dodged the issue in Perry (ruling on standing) but inserted the Romer analysis as dicta in Windsor, laying the ground work for the cases now being decided.

Another side note about Justice Kennedy: The 10th Circuit opinion, it has been said (and I think correctly) was intended for Justice Kennedy’s eyes and ears. Justice Kennedy analyses the constitutional question more narrowly than Justice Ginsburg would likely do, and, I suspect, Justices Breyer, Kagan and Sotomayer as well.

Justice Kennedy is the key. He has issued past opinions that support state’s rights (in a way that Justices Breyer, Ginsburg, Kagan and Sotomayer have not), and we could still be tripped up from a ruling of national impact. I don’t think it will happen, but it could.

I’m also going to watch Chief Justice Roberts very carefully. He has a hard decision to make. I don’t think that he would, all things being equal, buy into the Windsor analysis in the coming case, but the Windsor analysis is the basis on which the current batch of cases will be decided. Chief Justice Roberts is either going to have to join the majority opinion, or find a way to distinguish the Windsor analysis.

Houndentenor February 15, 2014 at 10:18 am

The problem with the political arena is that the anti-gay crowd repeatedly lied and we have a news media to lazy to do the least bit of fact-checking. We also mostly waged inept campaigns in which we assumed that people could see through lies and act decently. That was obviously the wrong strategy. In court, witnesses are cross-examined and competent lawyers (like Boies and Olson) will call out “experts” on discredited “studies” and other such nonsense. One only has to read the transcript of the Prop 8 case to see how that works in practice. I wish it didn’t have to be this way. I wish more Americans supported equal rights for everyone but when one party has decided that their rights include making everyone else pretend to be the hypocrites they are, that’s hard to pull off. If this is how this has to play out, so be it.

Jorge February 15, 2014 at 7:47 pm

Law alone is not the answer. To even get this far “legally” a Supreme Court case had to be overturned; it would stand in the way otherwise.

Also I think there are some political scenarios in which it would have been possible for the Federal Marriage Amendment to become law. Take the legal landscape today and apply it in 2005, without changing the social and political landscape, and I think you’ve got a nail-biter. It is not simply the goodwill of Republican politicians that is relevant. There’s every other social and political force at work.

Tom Scharbach February 14, 2014 at 5:55 pm

More. An optimistic analysis, via Slate, says “It’s Over.” We’ll see.

We will. But I think that the Salon article, if somewhat breathless, is technically correct in most respects.

Houndentenor February 14, 2014 at 8:47 pm

Technically speaking, no it’s not over, but it’s easy to see the point they are making. There will be some backlash, some laggers, some bitter moaning and groaning, but from here on out the course is clear. We can, actually (for the first time really) see the end of this tunnel we are in.

Tom Scharbach February 14, 2014 at 10:30 pm

There will be some backlash, some laggers, some bitter moaning and groaning, but from here on out the course is clear. We can, actually (for the first time really) see the end of this tunnel we are in.

I agree. And thank G-d for it. It is about time.

Technically speaking, no it’s not over …</em<

All I meant by "technically" is that the legal analysis is essentially correct.

The argument that the anti-marriage amendments are rationally connected to a constitutionally permitted government purpose has been demolished, and the constitutional analysis to get from "no rational purpose" to "equal means equal" was laid out in Windsor.

Although there might a few outliers, the lower courts will find in our favor.

The only thing that can screw this up now is the Supreme Court. It can do so on any of several grounds, but I don’t think it will.

The anti’s don’t think so either, as the mad scramble to get into the massive resistance stage before the Supreme Court rules in a few years demonstrates. Ted Cruz and Tony Perkins may weep, Brian Brown and the rest of the gang may rant and rave, and the Republican Party can adopt layers upon layers of legal obstacles, but that won’t stop the train.

In a non-technical sense, it is not over. We’ve got another decade of work ahead of us, at a minimum.

We need to see the legal process through to a Supreme Court decision in the next few years, and fight off (or undo in court) all the roadblocks that will be thrown in our path during the massive resistance stage.

But unless something unexpected happens when the cases get to the Supreme Court, it is a $15-20 million mopping up operation at this point. Hard fought, with casualties, but a mopping up operation.

Both political parties are essentially irrelevant to the final outcome at this point. The question of marriage equality will be decided by the courts now. The fight over massive resistance obstacles will be fought in both arenas, but massive resistance will serve only to delay, not to deny.

In the political arena, the Democrats will help us by blocking Republican obstacles wherever they are in a position to do so, and the Republicans will (unless the party is turned, which probably won’t happen) lay down obstacles wherever they are in control. But whatever is done there will be undone in the courts.

The massive resistance fight won’t make a difference to the final outcome, only to the cost of getting to the final outcome. We are fighting the real battle on a legal, not political, battleground now.

Houndentenor February 15, 2014 at 10:20 am

Exactly, and all the above makes me even happier to have voted for Obama in both 2008 and 2012, because if McCain or Romney had appointed the last few Supreme Court justices we wouldn’t have a prayer with this case.

Doug February 14, 2014 at 6:04 pm

I’m sick and tired of this BS Steven “This is pointed out because the din of the “one party is all we need and it starts with a ‘D’” crowd is sometimes deafening.”

Please provide examples to back up this statement or shut up.

Tom Scharbach February 14, 2014 at 6:49 pm

Stephen has very sensitive ears, kind of like an aural eggshell skull. One progressive whispering to another is a din, and two talking to each other is deafening.

Tom Scharbach February 14, 2014 at 6:08 pm

Given the importance of Virginia and its history (with Loving vs. Virginia leading to the overthrow of state bans on mixed-race marriages) …

Not that I think that it will make any difference, an underlying fact in Loving was that it was common in the South in those days to criminalize interracial marriages.

With the single exception of Wisconsin (where a same-sex couple going out of state to marry subject to criminal prosecution and nine months in jail and a $10,000 fine), that element is missing in the same-sex marriage cases. Our cases will be decided without that factor.

I don’t think that the history Virginia is nearly as important as the historic role of the 5th Circuit in shaping/framing constitutional issues. That’s why Olsen and Boies took up the Virginia case, at least according to them.

Mark February 14, 2014 at 7:00 pm

Vaughn Walker was appointed by George H.W. Bush, not George W. Bush.

There hasn’t been a single W.-appointed nominee to rule in favor of marriage equality–the judge in Nevada, who upheld the marriage ban, was a W. appointee, as was the 9th circuit judge who voted to uphold Prop 8 at the Court of Appeals. And, of course, both Roberts and Alito voted to uphold DOMA.

The fact that Republican presidents 25 years ago didn’t uniformly appoint anti-gay judges doesn’t help us much in analyzing the W. appointees, or the types of judges who would be appointed by a President Walker or Jindal or Jeb Bush. But that wouldn’t fit into Stephen’s narrative?

Tom Scharbach February 15, 2014 at 7:21 am

Five federal district judges have issued pro-gay marriage rulings post-Windsor. Three are Obama appointees, one was named by Clinton and the other by Bush I. All of the opinions ruled in our favor.

I agree with Ted Olsen that this is going to be the pattern, and I think that who appointed whom is almost irrelevant at the District Court level. As Olsen put it, “These arguments are so compelling … and the arguments presented against marriage equality are so weak.

We’ve got the facts and the arguments, supplemented by very strong dicta in a major Supreme Court case. The other side has next to nothing post-Windsor. At this point and going forward, the only district judges who will not rule in our favor are hard core ideologues.

I suspect that we will see a handful of negative rulings among the 45 or so marriage cases now before the federal courts, but they will be the exception rather than the rule, and quickly overruled at the appellate level.

Mark February 15, 2014 at 6:58 pm

Agree completely that the only judges now who won’t rule with us as ideologues–but I’d guess that virtually all of these will be W. appointees (until it gets to the Supreme Court, when Scalia and Thomas will join the two W. appointees in voting no). I fear we’ll see this in the 10th circuit case, since there are several W. appointees on that court.

Yet Stephen never seems to want to talk about how judges and justices appointed by W. are overwhelmingly hostile to gay rights, and how any judges appointed by a Republican who wins in 2016 will be similarly inclined.

Tom Scharbach February 15, 2014 at 7:44 am

While we are mentioning the contributions of Republican-appointed judges to our eventual success in the legal battle, I think it appropriate to mention Justice Scalia. I do not — emphatically not — mean this sarcastically.

While Justice Scalia is clearly not on our side, his Lawrence dissent articulated a principle that has shaped the favorable opinions since: In terms of constitutional analysis, in the absence of an objective rationale for marriage discrimination, marriage discrimination can be sustained if and only if moral approbation is accepted as a permitted constitutional rationale.

Scalia saw clearly that Lawrence knocked the props out from under moral approbation as a permitted rationale, and he said so in his dissent. The principle would have been right whether or not he articulated the principle, but because he articulated the principle, the road has been more clearly marked than it otherwise would have been.

That’s why Justice Scalia’s dissent has been quoted several times now in District Court opinions, and the importance of his dissent as a contribution to marking the road forward should not be dismissed.

Houndentenor February 15, 2014 at 10:25 am

Scalia did us a favor, but it certainly wasn’t his intention to do so. Like so many vehement homophobes his opposition is so hateful and mean-spirited that it made our case more sympathetic. I’m convinced that we are winning on this issue not so much because we made a good case (we have mostly bungled the messaging) but because the opposition has been so nasty and overall Americans don’t like that directed at anyone. (Also an observation that might be worth noting in reverse. Being too nasty against the haters is just as likely to backfire.)

Tom Scharbach February 15, 2014 at 5:46 pm

Update. Judge Allen’s decison has now been amended. I don’t agree this was just an editing error; the Declaration inspires us, but court rulings must be grounded in the law and, ultimately, the Constitution.

Stephen, you’ll be standing on the tracks, quibbling bitterly, while the train runs you over.

With the exception of that single error in attribution, Judge Wright Allen’s (I don’t mean to quibble, but you could at least take the trouble to get her name right if you are going to take her to task for making a mistake.) legal and constitutional analysis was sound.

Ted Olson praised the decision as “eloquent” and “beautiful” and “inspiring”, saying it should be read by every American. You might consider it.

A.J.R. February 16, 2014 at 11:26 am

Of course, Ted Olson is hoping to take the Virginia ruling all the way to the Supreme Court and so has a vested interest in defending its integrity. But even so, the Declaration/Constitution error should have at least been caught be a clerk. Opinions on the right can have illiteracies, and they enable us to attack them; we should be mindful of allowing the right the same opportunity by making sloppy mistakes.

Tom Scharbach February 16, 2014 at 12:28 pm

Furthermore. Back in 2010, David Boaz noted … [citing a couple more judges appointed by Republicans who handed down pro-equality decisions].

Stephen, you are starting to sound like a closeted gay man who protests too loudly that he is straight.

The legal realm is not essentially political, and the men and women who are appointed are lawyers, more often than not lawyers of high intelligence and training.

Judges appointed by both Democrats and Republicans have decided cases in our favor, and will continue to do so, particularly post-Windsor. That’s not because they were appointed by a Democrat or a Republican, but because they are schooled in the law and constitutional theory, can read and understand precedent, and take seriously the duty to apply the Constitution fairly and impartially.

You are fighting a straw man, Stephen.

Mark February 16, 2014 at 1:03 pm

Follow-up on the “furthermore”:

Great to see that Judge Tauro struck down DOMA (in a great opinion), but there aren’t too many Nixon appointees (who were cleared through a blue slip by then-Sen. Ted Kennedy) on the current federal bench.

And Iowa, contrary to Stephen’s suggestion, has a merit appointment system–a committee controlled by members of the state Bar forwards three names to the governor, from whom the governor chooses. The key move, then, is by the committee, not the governor. Since coming back as governor, Branstadt has worked to undermine the merit appointment system, packing the citizens’ section of the committee with Christian conservatives. And, of course, in 2010, he refused to say if he’d vote to retain the three Supreme Court judges (http://caffeinatedthoughts.com/2010/10/last-iowa-governors-race-debate-contrasting-branstad-and-culver-on-judicial-retention-selection-and-political-speech-in-churches/) who joined the gay marriage decision.

Tom Scharbach February 16, 2014 at 3:52 pm

I don’t understand the point that Stephen is trying to make.

Is it that voting for modern-day Republicans is essential because Republican presidents of two decades ago appointed judges who weren’t ideologues?

I think that’s true. But I wonder about the continued viability of that theory in an era when the 2012 Republican presidential candidates vied to outdo each other in the scramble to pledge that they would appoint a Scalia clone to the bench. It was like watching the show of hands against evolution. Sad.

Is it that judges, once appointed, tend to think about the law independent of party politics, for the most part, and often take unexpected positions that run contrary to the politics of the President who appointed them?

That’s certainly true.

President Eisenhower appointed both Earl Warren and William Brennan, who together unleashed a major expansion of First and Fifth Amendment constitutional theory. He later remarked that the two appointments were the “worst mistakes” he made as President. Should we assume that President Eisenhower intended the results of his appointment?

Stephen often cites Justice Kennedy as an example of a Republican-appointed justice who has played a critical part in establishing “equal means equal” as a constitutional principle.

That’s true. But does anyone think that President Reagan appointed Justice Kennedy because he thought that would happen?

You might recall that Justice Kennedy was appointed as a compromise candidate after Robert Bork (a conservative ideologue like Scalia) was rejected by the Senate.

Justice Kennedy was, in fact, the second comprise candidate put forward. Douglas Ginsburg (like Kennedy, a libertarian-minded judge) withdrew after it came to light that he’d smoked pot in Law School and wasn’t particularly repentant about it.

If President Reagan had gotten his way, Robert Bork would have been appointed instead of either Ginsburg or Justice Kennedy.

If Stephen is arguing that Republican Presidents are as prone as Democrats to appointing justices and judges who take the law in unexpected directions once appointed, I’d agree with him, but I don’t see that as a reason to vote for one party over the other.

Stephen apparently does. I’d be curious as to why he thinks that …

Lori Heine February 17, 2014 at 12:23 am

Houndentenor is absolutely right that the anti-gay Right lies, and that the media is lazy about exposing that. This happens in a variety of ways, and especially often when the subject is LGBT civil rights.

Take something as simple as the charge — which I’ve heard a lot of lately that “Christian orthodoxy condemns homosexuality.” There are a variety of things logically wrong with that statement, but it is usually allowed, in the media, to stand.

Orthodoxy refers to doctrine. Doctrine concerns matters such as the Trinity, the Incarnation, the Virgin Birth or the bodily Resurrection of Christ. It is a thing distinct from moral teaching. There are a number of doctrinally-orthodox LGBT Christians (I’m one of them), and many more straight allies who fall into this category. Though Christians who tend to be morally conservative also tend to be orthodox, that is governed more by emotion than by logical necessity.

Homosexuality is an affectional orientation. It is not a “lifestyle,” and does not refer to any particular sort of behavior. The idiots who say that “orthodox Christianity condemns homosexuality” don’t even seem to realize they’re saying that it condemns an affectional orientation. Sometimes, in the case of particularly backward people, it does. But the Roman Catholic Church, and most protestant churches not stuck in the Nineteenth Century, acknowledge that orientation and behavior are two different matters.

The social Right, however, is perfectly willing to blur the lines and confuse people — because ignorance suits them. This is the hallmark of dishonesty. Honest people seek to overcome ignorance, not to exploit it.

Jorge February 17, 2014 at 1:58 am

Take something as simple as the charge — which I’ve heard a lot of lately that “Christian orthodoxy condemns homosexuality.” There are a variety of things logically wrong with that statement, but it is usually allowed, in the media, to stand.

But the Roman Catholic Church, and most protestant churches not stuck in the Nineteenth Century, acknowledge that orientation and behavior are two different matters.

Come to think of it I’ve never seen the media report that about Catholic doctrine.

I can’t say I’ve seen the exact words you’ve mentioned, but what I have seen… now that I think of it I wonder if it’s just a whitewashed version of “The Bible condemns homosexuality.” Oh well.

Tom Scharbach February 17, 2014 at 9:35 am

We’d only need to support one party if the legislature and judiciary also drew only from one party.

Stephen, for all my carping at you for ignoring the reality of judicial appointments and the judicial process, your larger point is correct. I don’t know anyone who is the least bit thoughtful who disputes the point.

For example, we narrowly missed having Robert Bork, instead of Anthony Kennedy, on the Court to decide Lawrence, Romer and several other cases that provided the foundation for Windsor.

Bork was, like Justice Scalia, an “originalist” and an articulate foe of “equal means equal”.

If Bork, rather than Kennedy, had been on the Court, we would have lost Lawrence, Romer and the other cases in which Justice Kennedy played so key a role, no question about it.

Bork would not be on the Court today (he died in 2012), but without Lawrence and Romer, we would almost certainly lack the legal foundation that allowed us to bring Perry and Windsor to the Court last summer, and we would not be having this discussion. Instead of talking about the critical role of Justice Kennedy in bringing us to where we are, we would be talking about how Scalia, Thomas, Bork, and Alito, with support from Roberts, were an anti-equality wall that we could not tear down.

Think about this for a second. Justice Kennedy’s appointment was so improbable as to be almost accidental.

President Reagan appointed Justice O’Connor during his first term, and came under a lot of pressure from the emerging social conservative wing of the party to appoint justices more in tune with social conservative concerns during his second term.

President Reagan promised to do so, and he delivered. His first appointment during the second term was Justice Scalia and his second appointment was Robert Bork. The two were peas in a pod, both very intelligent and articulate “originalists”, and both strong social conservatives.

Neither man made any secret of their judicial philosophy (both had been law professors and both had an extensive record to examine). President Reagan knew what he was getting. Both appointments were, in every meaningful sense of the word, intentional.

Scalia got a pass, pretty much, in the Senate. Bork, who was “one bridge too far” for Democrats, did not. Senator Kennedy formed a coalition to oppose his appointment to the last ditch. The fight was ugly enough that the term “Borked” joined our lexicon, and the result has been a bone of contention between Democrats and Republicans since then.

Blocked in his attempt to appoint another “originalist”, President Reagan appointed Judge Douglas Ginsburg, a young but highly respected conservative jurist on the DC Circuit. Ginsburg was an advocate of judicial restraint, but he was no “originalist”. Ginsburg was forced to withdraw after his history of marijuana use became public.

Finally, after two failed nominations, President Reagan turned to another respected libertarian-minded jurist, Judge Anthony Kennedy on the 9th Circuit. Kennedy, like Ginsburg, was strongly conservative but not an “originalist”. Kennedy was confirmed without fuss.

Still stung by the Bork uproar, President George H.W. Bush’s first appointment was Judge David Souter, an obscure state judge with little record for either Democrats or social conservatives to attack. Souter was easily confirmed, but turned out to be (much to the disgust of the social conservatives) a judge who was not committed to denying gays and lesbians the basic rights of citizenship. Justice Souter voted with the majority in both Lawrence and Romer, and was viciously attacked by social conservatives for his votes. Justice Souter, like Justice Kennedy, played an important role in bringing us to the point where we now are.

But no corner was turned by Souter’s appointment. Under pressure from social conservatives to appoint a “solid” justice to fill the “Black Seat”, Bush’s second appointment was Justice Thomas, an “originalist” who has voted with Justice Scalia almost all of the time, joining Scalia’s scathing dissents in Lawrence and Romer. His confirmation hearing was as ugly as Bork’s, and dominated by racial politics on both sides, but unlike Bork, Thomas was confirmed.

I suppose that we can read this history in any number of ways, Stephen.

But I think that we can both agree — any sentient person would — that gays and lesbians would have been a lot better off if President Reagan and Roger Ailes had not adopted the social conservative “Moral Majority” into the Republican Party and cooperated with elevating the social conservatives into the prominence that they have enjoyed since the mid-1980′s. Barry Goldwater, a man we both respect, fought against that development, tooth and nail.

I hope that we can also agree that we would be a lot better off if conservatives who were not social conservatives had joined Goldwater and kept the pressure on after Goldwater departed from the Senate, instead of adopting social conservative causes (e.g. the anti-marriage amendments) to stay in power short-term, a classic example of trying to ride the tiger. I don’t know, but I hope we can.

But all of that is water is under the bridge now, and we are stuck with it. The Republican Party has been strongly entrenched as anti-equality during the last few decades, and is only now starting to show some signs of a return to sanity.

The question is where we go from this point and how we can help that process along. We have an enormous amount of work to do to undoing the anti-marriage amendments and fighting off the “massive resistance” effort already underway. I think that equality will prevail in any event, but our path will be a lot less expensive and tortuous if we can make progress in moderating the Republican Party.

Mike in Houston February 17, 2014 at 12:18 pm

It’s a phrase often repeated, but worth it: “It’s not your father’s Republican Party anymore.”

My mother stuffed envelopes for Nixon, and truth be told, I voted for the elder Bush over Reagan in the primaries… but my parent’s GOP is no more. That party worked across the aisle. That party created the EPA, passed the Clean Air Act, Clean Water Act, Endangered Species Act and never stinted on funding for basic science, NASA and programs like Head Start.

The long downhill spiral started with Reagan and the country-club republicans who were willing to embrace the Southern Strategy and it has devolved to what it is today: reactionary, recalcitrant, petty and devoid of critical thinkers and people who think of larger issues than scoring political points.

I simply cannot trust this party to provide any sort of progress towards LGBT equality.

Tom Scharbach February 17, 2014 at 12:37 pm

Dead right, Mike. The GOP in Wisconsin bears no resemblance to the GOP of the 1950′s through the 1970′s.

And that is, as you pointed out in another comment, true of the judges and justices the party appoints.

As Joshua Green noted in the Atlantic article Stephen referenced:

What all these judges [that is, the judges who voted for equality] share is their distinctiveness from Republican appointments over the last two decades, who tend to be activists affiliated with conservative outfits like the Federalist Society — think John Roberts and Samuel Alito. This makes the Republican pedigrees of the judges moving gay marriage toward legality all the more striking, particularly in how it contrasts with conservative outcries about judicial activism. But more than that, it’s a gauge of how far from the mainstream modern conservative jurists have drifted.

I revere Justice Kennedy. But I’m cognizant of the fact that President Reagan did not, during his second term, want to appoint a “mainstream conservative jurist” to the Court. He appointed Justice Scalia and wanted Robert Bork. It was only after Bork was rejected in a destructive Senate battle that Reagan was forced to look beyond the “originalists” he wanted to appoint.

Don February 18, 2014 at 2:45 pm

If the topic is supreme court justices, or at least federal judges, they have had a long history of rejecting conservative political doctrine in a courtroom. One of the greatest fears of the right has been electing their presidential candidate and then getting a Vaughn Walker and Anthony Kennedy. There has been much hand-wringing over more Scalia-like justices. Roberts was feared to be another wolf in sheep’s clothing.

This is not because the judges are not conservative. But that conservative dogma from time to time clashes with the constitution. And the lifetime appointment frees the judges, rightly so, from retribution regarding their decisions.

And they are not just conservative social positions in which they flip. There are numerous votes on business concerns that the right loses.

I believe this is precisely because of the nature of some legislation, such as flag burning, that simply is unconstitutional even if majorities support it at some point. And a good judge doesn’t go along with popular whims.

Is this an argument for voting for a republican president to help with gay rights? Hardly. Please elect ___ because there is a 20% chance that any given federal judges he appoints may support marriage equality.

Although I would love for a gay republican group to run TV ads that said just that. Talk about getting the base riled up!

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