A Banner Year for Gay Rights Litigation

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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 Faculty Lounge.

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