An Incredible Two Months for Gay Rights Litigation

Although not necessarily the issues that most impact the day-to-day lives of LGBT people in this country, marriage and military service have been at the forefront of the gay rights movement in recent years.  Efforts to reverse discriminatory policies in these areas at the state and federal levels have included legislative, executive, and referendum-based politics.  So far, those efforts have provided, at best, mixed results.

But this year has been a banner year in litigation efforts to advance gay rights in these areas.  Over the course of the past two months, federal district courts in Massachusetts and California have struck down, in chronological order, the federal Defense of Marriage Act, California's Prop 8, and the federal "Don't Ask, Don't Tell" policy.

Before conservatives cry "activist judiciary" in response to these rulings, it would be best to understand just who the judges are who struck down these laws.  As you can see, this is not a list of your usual suspects of activist judges:

Judge Joseph Tauro (D. Mass.):  Judge Tauro wrote the two opinions striking down DOMA.  Before becoming a judge, Judge Tauro was an army lieutenant from 1956 to 1958 and then an assistant U.S. Attorney from 1959 to 1960 and U.S. Attorney in 1972.  He was appointed to the District of Massachusetts by President Richard Nixon and was the chief judge of the district from 1992 to 1999.

Chief Judge Vaughn Walker (N.D. Cal.):  Chief Judge Walker wrote the opinion striking down Prop 8.  Judge Walker was appointed to the bench by President George H.W. Bush on the recommendation of then-U.S. Senator Pete Wilson, a California Republican.  After law school, Judge Walker clerked for Judge Robert Kelleher, a Nixon appointee, on the Central District of California.

Judge Virginia Phillips (C.D. Cal.):  Judge Phillips wrote the opinion striking down "Don't Ask, Don't Tell."  Judge Phillips is a native of Orange County, California, who became a federal magistrate judge in 1995 (meaning she most likely got her first federal judgeship on merits rather than political connections).  She was recommended for an Article III judgeship by Senators Barbara Boxer and Diane Feinstein in 1999.  She was appointed by President Bill Clinton that year and confirmed later in the year by the Senate, which was controlled 55-45 by the Republicans.

It's impossible to claim that, from their backgrounds, these judges are nothing but a bunch of liberal activists on the judiciary.  Rather, it might just be that the banner year this has become for gay rights litigation results from claims that have undeniable merit under a Constitution that protects equality and liberty.

Cross-posted at Feminist Law Professors.

Comments

[Marc DeGirolami]

Without commenting on the substance of the post, I disagree that the data that you have supplied about these judges' backgrounds has any necessary connection whatsoever to their judicial philosophies or political ideologies. The political affiliation of a nominating president, particularly when the nomination happened two decades ago or more, bears a doubtful connection to the judge's current views. Still more remote, and possibly entirely disconnected to anything relevant, is the political affiliation of the nominating president of the old judge for whom the new judge clerked.

[Orin Kerr]

David,

I agree with Marc that this post comes up short. As I'm sure you know, the ideology of District Court appointments in Blue States like Massachusetts and California are a very mixed bag. More broadly, the same method you use seems to fail when applied to lots of famous cases. Most obviously, Earl Warren, William Brennan, and Harry Blackmun were all appointed by Republicans. And Earl Warren was a tough-on-crime District Attorney for 14 years before running for state wide office and then becoming the GOP Vice-Presidential nominee. Yet these three judges are probably the three Justices most often referred to as activists. The lesson, I think, is that when we measure whether a judge is a judicial activist, we should do so by looking at their opinions -- not by looking at some features of their resumes from decades earlier and then concluding that based on them such a label is "possible" or "impossible."

[David S. Cohen]

Marc and Orin - you both are absolutely right. Yet, nothing in my post is to the contrary. All I said was that this group of judges does not have the background that you can immediately cry "activist" because they are, say, liberals who used to work for the ACLU and were appointed by Democrats. There might be something else, as you note Orin, that makes them "activists," but it's not their backgrounds. This post didn't claim otherwise.

[Orin Kerr]

David,

I see. I didn't see that because there a lot of variables at play here: Views of good policy; views of the constitution (which at least in my view are quite different from good policy); the ideological spread among district judges, etc. Perhaps I was confused by your suggestion that the merits of these cases under the Constitution is "undeniable": Given that many people of good faith deny them, even people posting in this very comment thread, that seems like an unusual word to chose.

[Marc DeGirolami]

David and Orin -- just a small addendum, since it may be that Orin is referring to me when he mentions folks posting on this thread. There are some variables mentioned by Orin which I believe are more plausibly deniable than others. And I appreciate David's clarifying comment above: I agree that none of the three judges listed are obviously describable as "activists," or even "liberal activists," based on the details of their backgrounds supplied by David alone. That said, I very much agree with Orin that judicial opinions themselves, rather than backgrounds, are the best measure of ideological commitment.