Legalize Gay Marriage? What About the Judges?
Monday, October 23, 2006
- Organization: DiversityInc
Legalize Gay Marriage? What About the Judges?
Compiled by the DiversityInc Staff
Openly gay and lesbian judges remain few in number, despite minor gains. The recent resignation of former U.S. representative Mark Foley and numerous decisions to strike down same-sex marriage at the state level underscore the need for better representation of the gay, lesbian, bisexual and transgender (GLBT) community in the public sphere.
There's only one openly gay judge on the 875-member federal bench-Harvard University Law School graduate Deborah Batts, who former President Bill Clinton appointed to a southern New York district trial court for life, reports USA Today.
"To the extent to which the bench ought to reflect society in general, having openly gay and lesbian judges matter," New York Supreme Court Judge Rosalyn Richter, a lesbian who was elected in 2003 to a trial Bronx judgeship, told USA Today. "It matters for the same reason that we wouldn't want a judiciary that was all men."
Privacy laws make it difficult to discern how many judges are GLBT. Public perception that one's orientation or gender identity may sway court rulings also might deter some judges from disclosing they are GLBT, although this argument has repeatedly been undermined by judges such as Oregon Supreme Court Justice Rives Kistler who have sided with the majority decision not to legalize same-sex marriage.
The number of openly gay and lesbian judges has increased since 1990, but they still comprise a meager percentage of the overall judiciary, reports USA Today. Membership lists from the Victory Fund and the International Association of Gay and Lesbian Judges put the total somewhere between 75 and 100, mostly in California, New York and Chicago-all states that have defeated proposals to legalize same-sex marriage.
The judges' rationale has been the same: Local government does not have the authority to rule on this matter. It's up to the legislature. That's the problem.
The recent resignation of former U.S. representative Mark Foley, who is gay, has even made it more difficult for gays and lesbians to get fair representation on Capitol Hill. (See also: Homosexuality Is Not Pedophilia: The Mark Foley Fallout)
Both senators and all representatives from 11 states-Alabama, Alaska, Idaho, Kentucky, Mississippi, Montana, Nebraska, Oklahoma, Tennessee, Utah and Wyoming-have voted in favor of the Federal Marriage Amendment, a constitutional ban on same-sex marriage that would effectively deny same-sex couples the 1,049 rights afforded by marital contracts, according to the American Bar Association.
Some states already have approved such an amendment. In others, either the bare majority or legal stipulations involving the number of votes needed to pass an amendment have prevented the proposed ban from becoming law. Take Oregon, for example. In 1997, it passed in the Senate but not in the House. In 1999, it was the Senate that voted no.
The public is still opposed to same-sex marriage (56 percent), according to a July 2006 Pew Research poll of more than 2,000 adults, but most people also favor some legal recognition (53 percent) for gay and lesbian couples. Only 30 percent of respondents say it's a "good idea" to enact a constitutional ban on same-sex marriage.
