The highly political Bush v. Gore ruling by the Supreme Court that resolved the contested 2000 presidential election should have provided all the warning any American needed about the critical importance of the president’s power to appoint federal judges.
In fact, the recent politicization of American discourse about the courts dates at least to the 1973 Roe v. Wade abortion ruling, after which time the right wing increasingly resorted to court-bashing as a way of galvanizing popular resentment against cultural change in America—and not, incidentally, raising tremendous amounts of money.
The pattern of federal judicial appointments under Pres. George W. Bush has too often laid bare the ascendancy of cultural conservatives in the current administration’s approach to our legal system. Senate Democrats, led by New York’s senior senator, Charles Schumer, have mounted several high-profile, principled filibusters against Bush appointees—leading conservatives to squawk about obstructionism—but too many nominees, with troubling records on women’s rights, gay and lesbian equality, environmental regulation and other key issues, have slipped through the nomination process.
But let’s apply a more stringent standard than that apparently used by Bush administration anti-terrorism officials—and not simply rely on evidence now three or four years old. In fact, let’s look at two cases decided in federal appeals court in the last two weeks.
On July 21, in a case decided by all 12 active judges of the 11th Circuit Court of Appeals based in Atlanta, the panel split 6-6 and therefore did not grant re-hearing for a challenge aimed at Florida’s ban on adoption by “practicing homosexuals.” The odious Florida statute will stand.
One week later, a three-judge panel from the same circuit upheld an Alabama statute that forbids the sale of sex toys.
The key issue here is not the fact that both rulings are broadly at odds with the interests of the gay and lesbian community and advocates for sexual freedom generally. The more salient aspects of the decisions are the political affiliations of the judges involved and the conclusions that the prevailing opinions in both cases drew about the ramifications of last year’s Lawrence v. Texas sodomy victory in the Supreme Court.
In the Florida adoption decision, the six judges who prevailed held that last year’s sodomy ruling did not establish or find a fundamental right for gay and lesbian people to form intimate relationships; instead it merely found no rational basis for forbidding them from engaging in private, consensual sexual behavior. The distinction is crucial. Without the more expansive view of our right to establish relationships, and by extension, families, the argument over the adoption ban loses much of its resonance.
The 11th Circuit Court was able in the context of this narrower debate to accept Florida’s claim that the adoption ban was rational in defending the model of traditional heterosexual family life.
Crucially, the Florida decision dismissed Supreme Court Justice Anthony Kennedy’s most stirring language about the liberty rights of gay and lesbian Americans as mere “dicta,” not central to what it viewed as a simple test of whether government policy meets a minimal rational standard.
The sex toy decision was argued along much the same lines. The majority looked not at whether private sexual conduct was a fundamental right, but rather at whether purchasing and using sex toys represented fundamental rights. Then, taking a static view of legal analysis bound by tradition that would have made impossible the Supreme Court’s rulings in favor of contraceptives in 1965 and abortion in 1973, the panel majority found, not surprisingly, there was no clear record that society has traditionally valued and protected the use of sex toys.
The similarity in the two opinions is not surprising at all. Both were written by the same judge, Stanley F. Birch, Jr., who was first appointed to the court by the current president’s father, George H.W. Bush. In both cases, the opposing opinion was penned by Judge Rosemary Barkett, a Clinton appointee.
Court watchers often point to Pres. Dwight Eisenhower’s appointment of Earl Warren, who oversaw the historic 1954 Brown v. Board of Education desegregation case and many other progressive rulings over the next two decades, as evidence that the political affiliation of presidents making court appointments is not determinative of future jurisprudence.
But these two 11th Circuit rulings suggest otherwise. In the 12-judge Florida ruling, three of four Clinton appointees voted to strike down the adoption ban, while three of the four appointees of George H.W. Bush voted to uphold it. The other two judges who voted against the gay adoption ban were appointed by Jimmy Carter and Gerald Ford. The two remaining anti-gay votes came from appointees of George W. Bush and Ronald Reagan.
Last June, when the Supreme Court struck down the nation’s remaining sodomy laws, we all breathed a sigh of relief and looked forward to the prospect of additional gains resulting from the astonishingly positive language employed both by Kennedy and by Sandra Day O’Connor in her concurring opinion.
Few gay rights advocates were willing to wholeheartedly embrace Justice Antonin Scalia’s warning, made in his sour dissent, that Lawrence would open the gates to gay marriage, but in fact, several key marriage decisions since then—from the Massachusetts Supreme Judicial Court’s historic ruling last November to this week’s district court ruling in Washington State—have relied significantly on the recognition of the liberty rights deserved by gay and lesbian Americans.
American law is an evolving tradition, influenced to a greater degree than most would care to acknowledge by political forces. Gay and lesbian Americans must vote this November to ensure that this evolution continues to broaden the scope of our civil rights.
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