Courting Justice: Stand Up for Fair Courts – Protect Our Rights

Over the past decade, many of the LGBT community's most significant civil rights successes have come through strategic lawsuits by Lambda Legal and other organizations that have resulted in precedent-setting legal victories. Consider Romer v. Evans, the Supreme Court's 1996 decision declaring Colorado's infamous Amendment 2, which sought to bar any protections against LGBT discrimination, to be unconstitutional; Lawrence v. Texas, that same Court's groundbreaking 2003 ruling that overturned Bowers v. Hardwick and invalidated all sodomy laws that regulated private consensual adult sex; and the decision by the Massachusetts Supreme Judicial Court just a few months later in Goodridge v. Dep't. of Public Health, which held that same-sex couples have the right to marry under that state's constitution.

The keys to our success in winning these critical legal victories have been: (1) We were right as a matter of both law and justice; (2) We benefited from outstanding lawyering by some of our community's best and brightest attorneys; and (3) In each case we were able to get a fair and impartial hearing. The political party affiliation of judges (or those who appoint judges) has not been decisive. For example, the majority opinions in Romer v. Evans and Lawrence v. Texas were both written by Republican appointee Justice Anthony Kennedy. And Justice Judith A. Cowin, a Republican appointee whom the Boston Globe has characterized as one of the "most conservative voices" on the Massachusetts Supreme Judicial Court, cast one of the deciding votes in Goodridge.

What we at Lambda Legal know from our experience is that the legal system can work to protect the civil and constitutional rights of all people when judicial independence is respected. Judicial independence requires that a president nominate and the Senate confirm well-qualified and fair-minded individuals for the federal bench, and that state court judges be allowed to do their jobs without being threatened or intimidated.

The Bush Administration has from its inception worked diligently to appoint to the federal bench right-wing ideologues who are well outside the judicial mainstream. Many of the President's nominees have track records that cast doubt on their ability to be fair and open-minded in cases involving civil rights claims. In the vast majority of cases, the Senate has deferred to the President's power to appoint federal judges, and hundreds of George Bush's nominees to the bench have been confirmed. However, Senate Democrats have drawn the line at a small number of nominees who represent the "fringe of the fringe" and who have been nominated to fill vacancies on influential appellate courts. These most controversial of nominees, who have been strongly opposed by many of Lambda Legal's most important partners in the civil rights community, have already been denied confirmation by the Senate. Undaunted, President Bush recently took the highly provocative step of renominating them en masse.

Meanwhile, a parallel effort has been under way at the state level to use brazen political attacks to excoriate and intimidate judges who have the temerity to rule in favor of equality for gay people and same-sex couples. Antigay forces routinely brand these fair-minded jurists as "activist judges" (a term that has won increasing currency in media reporting), and threaten to have them removed from the bench. The most recent target is California Superior Court Judge Loren E. McMaster. Last September, McMaster rejected a right-wing legal attack on the state's new expansive domestic partnership legislation. In response, "traditional family values" groups have threatened to have McMaster recalled in a special election unless his ruling is quickly reversed on appeal. Antigay activists are currently working to collect enough voter signatures to call the special election, and a local voting official predicts "that shouldn't be too difficult."

Historically, Lambda Legal has not played a role in debates over federal judicial nominations or other efforts to defend judicial independence from attack. (A notable exception was our public opposition to the defeated Supreme Court nomination of Robert Bork in 1987.) However, we've now come to a critical juncture: Aggressive right-wing efforts to stack the federal courts and intimidate state court judges pose a growing threat to Lambda Legal's ability to carry out our mission. We are now at the point where one federal nomination could make the difference between fairness and injustice. This was driven home powerfully last year when Judge William Pryor cast the deciding vote in opposition to en banc review of an 11th Circuit decision upholding the constitutionality of Florida's antigay adoption law. Pryor, who has a demonstrated record of hostility to LGBT rights, was nominated by President Bush to serve on the 11th Circuit but was denied confirmation by the Senate because of his extremist views. Undeterred, the President invoked his power to make recess appointments and temporarily installed Pryor on the bench while the Senate was briefly out of session. It was during this temporary appointment that Pryor succeeded in scuttling an ACLU challenge to the notorious Florida law.

In light of this unprecedented threat, Lambda Legal is launching Courting Justice, a new education campaign designed to add Lambda Legal's unique perspective to the fight to defend judicial independence. Courting Justice brings a powerful new voice to the public debate about the proper role of the courts in defending civil rights for all Americans. The campaign also seeks to ensure that LGBT and HIV-affected people know what's at stake and how to get involved in efforts to defend judicial independence at the federal and state levels. As part of the Courting Justice campaign, Lambda Legal will soon launch a special website that will provide critical information about the role of the courts in vindicating civil rights, current threats to that role and suggested action steps. We'll use our online publications and Action Alerts to provide Lambda Legal supporters with up-to-date information on emerging threats to judicial independence and ways to confront those threats. We'll be working through the media to build public awareness on these issues. And wherever we can we'll support the work of local activists defending judges who come under severe political attack for ruling in favor of the rights of LGBT people and people with HIV.

Of course, Lambda Legal cannot do this work alone. We are standing side-by-side with many other civil rights organizations who have repeatedly stood by us in our fight for fairness. Working in coordination with the Leadership Conference on Civil Rights and numerous other allies, we can have an important impact. By doing so, we will ensure that Lambda Legal can continue to fulfill its mission of working in the courts of law and the court of public opinion to win equality and make a difference in the lives of LGBT people and people with HIV.