Momentum: State of the Courts

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December 10, 2013

In the blog series Momentum: 2013, A Year of Equality we ask Lambda Legal’s experts to discuss the impact of the previous year and the continuing work necessary to keep equality moving forward.

In 2013, it became crystal clear just how critical our courts are in the fight to secure legal equality for LGBT people and those with HIV. Unfortunately, when courts rule on important civil rights issues, they often come under attack from individuals and groups — going beyond criticizing outcomes and legal arguments — seeking to intimidate judges and undermine the function of the court system.

Just take a look at this excerpt from a fundraising email that the National Organization for Marriage sent out after the U.S. v. Windsor (DOMA) decision:

Let's face it: Anthony Kennedy and his activist cronies on the Supreme Court are itching to redefine marriage and impose same-sex 'marriage' on an unwilling nation. Justice Scalia has warned us clearly in his dissent that the only thing that will stop Kennedy and crew is their own sense of what they can get away with.

This harmful narrative was echoed by politicians and even judges throughout the year.

After Lambda Legal’s marriage victory in New Jersey, Gov. Chris Christie — who opposed the ruling — criticized the New Jersey Supreme Court for “substituting its judgment for the constitutional process of the elected branches or a vote of the people” and reiterated his promise to reshape the “activist court.”

In September, an Ohio lawmaker called for the impeachment of a federal judge who ruled that the state must recognize the marriage of a terminally ill man and his husband, accusing the judge of "malfeasance and abuse of power." In August, a conservative state judge in Kentucky stated in an op-ed that the Windsor ruling did not change Kentucky’s “simple and traditional” marriage law.

Because much of the misunderstanding and vitriol aimed at the judiciary comes from decisions that affect the LGBT community, it is essential for Lambda Legal to play a role in protecting judicial independence. This is exactly what our Fair Courts Project does through public education on the importance of courts and the harmful effects of special interest money; increasing access to justice; and promoting diversity on the bench.

In 2013, the Fair Courts Project worked to curb anti-LGBT bias in the legal system by:

  • Advancing legal protection to prohibit discrimination against LGBT people in jury service;
  • Fighting a harmful amendment to the Senate immigration reform bill that would have allowed the government to deny basic due process rights to immigrant detainees, many of whom are LGBT;
  • Working to end “gay panic” and “trans panic” legal defenses to “justify” violent hate crimes.

This last year we celebrated a number of victories that increased LGBT diversity on the bench, including:

  • The nomination and confirmation of openly gay judges servingat high levels in states like Connecticut, California and New York, to name a few;
  • An unprecedented number of openly gay judicial confirmations to the federal bench, including the first lesbian Latina judge and Asian-American lesbian judge; and
  • The confirmation of the first openly gay federal appellate judge in the country.

But there are still challenges ahead...

With 38 states holding some form of judicial election and $54.6 million spent on judicial races during the 2011-12 election cycle, there is every reason to expect that special interests will persist in their attempt to influence the courts.

Due to unprecedented obstruction in the Senate, approximately 1 in 10 federal judgeships remains vacant and Sen. Marco Rubio (R-Fla.) continues to single-handedly block the confirmation of the first openly gay black man to the federal bench.

According to recent studies, upwards of 50% of gay and lesbian respondents thought the courts were not providing fair and unbiased treatment to LGBT people.

Together we have helped move equality forward and together we must use the momentum of 2013 to achieve the promise engraved above the Supreme Court: “Equal Justice Under Law.”

Help keep equality moving forward by making a tax-deductible, year-end gift to Lambda Legal.

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